Justin Levi Burns v. State
09-16-00350-CR
| Tex. App. | Dec 6, 2017Background
- Justin Levi Burns (defendant) was convicted by a jury of continuous sexual abuse of a child (A.M.), who was nine at trial and testified Burns (her uncle) repeatedly sexually assaulted her. The jury assessed life imprisonment.
- Burns later obtained an out-of-time appeal after a habeas corpus application claiming his trial counsel failed to timely file a notice of appeal.
- At trial Investigator Joey Ashton testified that when arresting Burns in Colorado for the A.M. allegation Burns gave a false name and birthdate. Defense objected to that extraneous-offense testimony as irrelevant.
- During the victim’s testimony a woman in the gallery (J.S.) appeared to be signaling; defense moved for mistrial after the woman denied coaching.
- Burns raised several ineffective-assistance claims on appeal: failure to secure two witnesses who might impeach a witness, and failure to insist on admission of Brady-type material about the complainant’s mother.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of extraneous-offense testimony (false name/date) | Ashton’s testimony was irrelevant and unfairly prejudicial; not similar to charged conduct | State: evidence showed flight/consciousness of guilt and was admissible for non-character purposes | Court: admissible to show flight/consciousness of guilt and circumstances of arrest; Rule 403 objection not preserved |
| Rule 403 prejudice of extraneous testimony | Testimony unduly prejudiced jury | Burns didn’t lodge a Rule 403 objection at trial | Court: 403 complaint forfeited for appellate review; overruled |
| Motion for mistrial for alleged coaching by spectator (J.S.) | Coaching denied Burns a fair trial; court should have ejected/investigated more | Court questioned J.S.; she denied coaching and said she was adjusting to see monitor | Court: denial of mistrial within discretion; no evidence of coaching; overruled |
| Ineffective assistance — witnesses not called/admitted | Counsel failed to secure two witnesses whose testimony would impeach another, depriving adversarial testing | State: record lacks what witnesses would have said; no hearing on new trial motion; presumption of reasonable strategy | Court: no record showing prejudice or content of testimony; ineffective-assistance claim fails |
| Ineffective assistance — Brady material not admitted | Counsel failed to insist on admission of Brady-type records undermining complainant’s mother’s credibility | State: trial court offered process to review/redact; defense never formally proffered/admitted exhibit | Court: record doesn’t show deficient performance or reasonable probability of different outcome; claim fails |
Key Cases Cited
- De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (standard for appellate review of evidentiary rulings)
- Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) (flight evidence admissible to show consciousness of guilt and arrest circumstances)
- Cantrell v. State, 731 S.W.2d 84 (Tex. Crim. App. 1987) (flight may be shown even if it involves other crimes)
- Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial standard: error must be highly prejudicial and incurable)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
- Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) (deferential review of counsel’s strategic choices; prejudice standard)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (ineffective-assistance claims must be firmly founded in the record)
- Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) (failure to call witnesses fails absent showing they were available and beneficial)
- Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) (preservation requirement for appellate review of evidentiary objections)