Robert Burke v. State, 2011 Tex. App. LEXIS 8368

Appellant Burke was convicted by jury of two counts of aggravated sexual assault of a child for acts in May 2009.
The incidents involved Burke placing his penis in J.B.’s mouth and anus, while choking him and threatening harm to prevent disclosure.
J.B. initially outcried in December 2009; he detailed acts in Brazoria County and Galveston County prior to the May 2009 offenses.
The Brazoria County Grand Jury indicted Burke on two counts; the jury convicted on both counts and sentenced Burke to 70 years for each count, to run concurrently.
Burke raised three issues on appeal: ineffective assistance of counsel, erroneous admission of expert testimony on truthfulness, and improper cross-examination during punishment about an extraneous offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance during guilt phase	Burke asserts trial counsel failed to object to improper evidence and procedures.	State contends objections would be futile; evidence admissible under article 38.37 and Rule 403, and counsel acted reasonably.	No ineffective assistance; evidentiary rulings were within reason and objections would have been futile.
Admission of expert testimony on truthfulness	Prihoda’s testimony impermissibly expressed an opinion on J.B.’s truthfulness.	Admission was proper as background/background-typing testimony rather than direct affirmation of truthfulness; prior objections were sustained and cured by instructions to disregard.	No abuse of discretion; testimony did not usurp the jury’s fact-finding role.
Cross-examination about extraneous offense during punishment	State was allowed to question a defense witness about a separate sexual-abuse allegation; this violated rules on extraneous acts.	Cross-examination was permissible to test character and awareness of extraneous conduct, with proper bench rulings.	Permissible cross-examination; within the court’s discretion and supported by record.

Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (ineffective-assistance framework)
Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005) (standard for Strickland analysis in Texas)
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) (presumed prejudice when ineffective assumption)
Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004) (counsel not ineffective for futile objections)
Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996) (futility of objections; Rule 403 considerations)
Edmond v. State, 116 S.W.3d 110 (Tex. App.—Houston [14th Dist.] 2002) (frivolous objections temperament)
Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) (cross-examination on specific instances of conduct)
Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993) (expert testimony on truthfulness prohibited as direct opinion)
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997) (expert testimony cannot opine on truthfulness; allowed background info)
Bryant v. State, 340 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010) (admissibility of background expert testimony)
McCulloch v. State, 39 S.W.3d 678 (Tex. App.—Beaumont 2001) (relevance of extraneous acts and relation to outcry)
Walker v. State, 4 S.W.3d 98 (Tex. App.—Waco 1999) (outcry delay considerations)
Poole v. State, 974 S.W.2d 892 (Tex. App.—Austin 1998) (states of mind and relationship evidence under article 38.37)