Ethan Thomas Brown v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00066-CR __________________

ETHAN THOMAS BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. 21DC-CR-00521 __________________________________________________________________

MEMORANDUM OPINION

Appellant Ethan Thomas Brown appeals his conviction for sexual assault. See

Tex. Penal Code Ann. § 22.011(a)(1). In four issues, Brown complains about the

denial of his Motion to Substitute Counsel, admission of extraneous offense

evidence, and ineffective assistance of counsel. We affirm the trial court’s judgment.

PERTINENT BACKGROUND

A grand jury indicted Brown for sexual assault. On February 3, 2022, the trial

court conducted a hearing on Brown’s proposed attorney’s Motion for Substitution

1 of Counsel, which Brown’s trial attorney did not oppose. Brown’s trial attorney

stated that he and Brown were not on the “best of terms.” Brown’s proposed attorney

stated that he had a directive from Brown’s family, and Brown consented to his

family hiring him. The trial judge indicated that it was a critical stage of the process,

the case was set for “jury selection and trial on the 22nd day of this month[,]” and

the Sixth Amendment’s guarantee to choose counsel is “not necessarily absolute.”

The trial judge stated that it did not have a problem with the proposed attorney’s

substitution but had a problem with the case not being reached on the set trial date

and asked if the proposed attorney had a conflict. The proposed attorney indicated

he had a conflict and could be ready for trial the following month. The proposed

attorney explained that he did not know the trial date when Brown’s family hired

him, was not trying to delay the case, and could step down and return the money if

the trial court denied the motion.

The trial judge stated that the courts were backlogged, and the court had

preferential settings until at least July with people who had been in custody for two

years. The trial judge explained that in November 2021, they tried Brown’s two

consolidated cases. He was convicted on the violation of bond conditions, but the

sexual assault case resulted in a mistrial based on the jury’s inability to arrive at a

verdict, and that is currently set for trial. The trial judge also explained that he re-

tries matters with hung juries as quickly as possible, had preferentially set the current

2 case for February 22, and had already summoned 450 jurors. The trial judge further

explained that the State had subpoenaed its witnesses, some of which are out of state,

and Brown’s right to choose his counsel “cannot interfere with the fair and orderly

conduct or administration of justice.” The trial judge stated that the case had a long

history, including several substitutions of counsel and the presentation of multiple

dilatory matters done to delay the proceedings, and that a substitution of counsel

would interfere with the administration of justice if it caused another delay because

it would deny other defendants set for trial their day in court. When the trial judge

told Brown’s proposed counsel that he would grant his Motion for Substitution of

Counsel if he could be ready for trial on February 22, counsel stated he could not, so

the trial judge denied the substitution. However, the trial judge did say Brown’s

proposed counsel was welcome and could participate in the trial of this case along

with Brown’s trial attorney, but the court would not grant a continuance.

During a pretrial hearing, the trial judge indicated a 28.01 hearing had been

scheduled, and it granted Brown leave of court to file any additional motions. The

trial court stated that it would handle the Motion to Suppress the Extraneous

Offenses as a Motion in Limine and address it in a hearing or bench conference when

the State attempted to offer the testimony. During trial, the trial court conducted a

bench conference outside the jury’s presence immediately before Brown rested his

case, and the trial judge stated he was advised that there “may be some rebuttal, 404-

3 B witnesses.” When the State indicated it was about to call its 404-B witnesses, the

trial court instructed the jury regarding extraneous offense evidence.

The State then called its 404-B witnesses without objection from Brown. After

hearing evidence from five 404-B witnesses concerning two extraneous offenses,

the trial judge asked the parties to approach the bench and stated that “[t]his is 404-

B stuff. We’re not trying two cases in one. Make your point and then go on to the

next.” The trial judge later stated that he did not “want to spend more time on 404-

B than I do on the case in Chief. Then we’re making a record that will support an

error that he was tried as being a criminal in general.” When the State explained that

it was only concerned with proving the 404-B evidence beyond a reasonable doubt,

the trial judge stated that it was not “going to interject all the problems that you had

last time.” At that point, the defense moved for a mistrial outside the jury’s presence,

arguing that the “jury has been tainted to some degree by hearing a little bit too much

about the other offense or alleged offense.” The trial judge overruled the defense’s

request for a mistrial, and the defense requested an instruction to disregard the

testimony of one of the 404-B witnesses, which the trial judge denied because he

had already instructed the jury on the purpose of the 404-B evidence and did not

want to belabor the issue. The trial judge further explained that it did not “want a

record to go to the Ninth Court that’s longer on 404-B witnesses than it is on the

[S]tate’s case in chief on the offense for which he’s charged with.”

4 The State rested without presenting its four remaining 404-B witnesses

regarding the extraneous offense allegation of sexual assault against Brown’s ex-

wife because it did not “want to try another case in this case.” Additionally, the trial

court did not allow the State to offer transcripts of the previous trial. During closing,

the State argued that the other sexual assaults were to show that the victim was not

“making this up.” The jury found Brown guilty of sexual assault as charged in the

indictment and assessed Brown’s punishment at twenty years in prison and a

$10,000 fine.

ANALYSIS

In issue one, Brown argues the trial court violated due process by denying his

oral Motion to Substitute Retained Counsel of his choice. The right to assistance of

counsel includes the right to obtain that assistance from retained counsel of one’s

choosing. See United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Gonzalez

v. State, 117 S.W.3d 831, 836–37 (Tex. Crim. App. 2003); see also Gamez v. State,

Nos. 03-09-00047-CR, 03-09-00048-CR, 03-09-00049-CR, 03-09-00050-CR, 2010

WL 3271236, at *2 (Tex. App.—Austin Aug. 19, 2010, pet. ref’d) (mem. op., not

designated for publication). The right of counsel is not absolute, and a trial court has

wide latitude in balancing the right to counsel of choice against the needs of fairness

and demands of its calendar. See Gonzalez-Lopez, 548 U.S. at 151–52; Gonzalez,

117 S.W.3d at 837. “Trial judges necessarily require a great deal of latitude in

5 scheduling trials[,]” which includes assembling the witnesses, lawyers, and jurors.

Morris v. Slappy, 461 U.S. 1, 11–12 (1983). “Consequently, broad discretion must

be granted to trial courts on matters of continuances; only an unreasoning and

arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for

delay’ violates the right to the assistance of counsel.” Id. (quoting Ungar v. Sarafite,

376 U.S. 575, 589 (1964)).

A defendant’s right to select his counsel cannot be manipulated to obstruct the

orderly court procedure or interfere with the fair administration of justice. Webb v.

State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). When competent counsel is

available and fully prepared to represent the defendant, a trial court does not abuse

its discretion by denying an untimely request for continuance based on the

unavailability of the defendant’s counsel of choice. See Slappy, 461 U.S. at 12–13.

The record shows that Brown’s current attorney, who had succeeded in getting

a hung jury in the first trial, was prepared to represent him at the scheduled trial and

his proposed attorney was unavailable to represent him on that date; the case had a

long history and been delayed several times; and rescheduling the trial would

negatively affect the court’s procedure and interfere with the fair administration of

justice. See Gamez, 2010 WL 3271236, at *2–3; see also Slappy, 461 U.S. at 12–13.

Under these circumstances, the trial court did not abuse its discretion or violate

Brown’s constitutional right to counsel by refusing his Motion to Substitute Retained

6 Counsel of his choice, which would have required the trial court to continue the

scheduled trial at the expense of fairness and the demands of its calendar. See

Gonzalez-Lopez, 548 U.S. at 151–52; Gonzalez, 117 S.W.3d at 837; Gamez, 2010

WL 3271236, at *2–3. We overrule issue one.

In issues two and three, Brown argues the trial court abused its discretion by

admitting an extraneous offense that was not substantially similar to the charged

offense under Texas Rule of Evidence 404(b) when no demonstrated exception to

the general rule of exclusion was established. Brown complains the trial court abused

its discretion by failing to perform the balancing test under Texas Rule of Evidence

403, but he admits he failed to object to the admission of the extraneous offense

evidence at trial. The State argues that Brown failed to preserve any error regarding

the trial court’s admission of extraneous offense evidence.

We review a trial court’s admission of extraneous offenses or acts under an

abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh’g). We must uphold the trial court’s ruling if it is within the zone of reasonable

disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). A

defendant complaining of error in the admission of evidence should first object, then

request an instruction to disregard, and move for a mistrial if he believes the

instruction to disregard was insufficient to cure the error. See Young v. State, 137

7 S.W.3d 65, 71 (Tex. Crim. App. 2004); Crowson v. State, No. 09-22-00311-CR,

2023 WL 3991074, at *1 (Tex. App.—Beaumont 2023, no pet.) (mem. op., not

designated for publication). “When a party attempts to adduce evidence of ‘other

crimes, wrongs, or acts,’ in order to preserve error on appeal, the opponent of that

evidence must object in a timely fashion[,]” and ideally, “that such evidence is

inadmissible under Rule 404(b).” Montgomery, 810 S.W.2d at 387; see also Tex. R.

Evid. 404(b).

We note that although Brown argued against the admission of the extraneous

offense evidence pretrial, and the trial court stated it would handle his Motion to

Suppress the Extraneous Offenses as a Motion in Limine during trial when the State

attempted to offer the testimony, a trial court’s granting or denying of a motion in

limine, without more, preserves nothing for appellate review. See Fuller v. State,

253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Rawlings v. State, 874 S.W.2d 740,

742 (Tex. App.—Fort Worth 1994, no writ). The record shows that Brown failed to

object to the State’s direct examination of its five 404(b) witnesses and to any

exhibits offered through their testimony. Brown’s failure to object to the admission

of the extraneous offense evidence waives any error in the admission of evidence

tending to show an extraneous offense. See Smith v. State, 595 S.W.2d 120, 123

(Tex. Crim. App. [Panel Op.] 1980); Jones v. State, 948 S.W.2d 386, 387 (Tex.

App.—Beaumont 1997, pet. ref’d); Coleman v. State, No. 02-18-00471-CR, 2020

8 WL 241975, at *4 (Tex. App.—Fort Worth Jan. 16, 2020, no pet.) (mem. op., not

designated for publication); Lanclos v. State, No. 09-97-00543-CR, 1999 WL

129930, at *1 (Tex. App.—Beaumont Mar. 10, 1999, no pet.) (mem. op., not

designated for publication); see also Tex. R. App. P. 33.1(a)(1)(A). Furthermore,

because the record shows Brown failed to object at trial to the extraneous offense

evidence based on Rule 403, he also failed to preserve any error regarding Rule 403.

See Smith v. State, No. 09-17-00302-CR, 2019 WL 1270817, at *6 (Tex. App.—

Beaumont Mar. 20, 2019, no pet.) (mem. op., not designated for publication); see

also Tex. R. Evid. 403; Tex. R. App. P. 33.1(a)(1)(A). We overrule issues two and

three.

In issue four, Brown complains that his trial counsel was ineffective by failing

to (1) object to the extraneous offense evidence, (2) call any witnesses during

punishment, and (3) investigate or continue the trial to determine a viable defense.

“Evaluating claims of ineffective assistance of counsel under the Sixth

Amendment involves a two-pronged test: (1) whether counsel was deficient, and (2)

whether the defendant suffered prejudice as a result of counsel’s error.” Hart v. State,

667 S.W.3d 774, 781 (Tex. Crim. App. 2023) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). To establish counsel’s deficient performance, an appellant

must show by a preponderance of evidence that counsel’s actions fell below an

objective standard of reasonableness. Id.; see also Strickland, 466 U.S. at 687–88.

9 “Under Strickland, the defendant must prove, by a preponderance of the evidence,

that there is, in fact, no plausible professional reason for a specific act or omission.”

Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Our review of counsel’s

performance is highly deferential, and we presume they provided reasonable

assistance. See id. at 833. We afford counsel a strong presumption that their conduct

falls within a wide range of reasonable professional assistance, and a defendant must

overcome this presumption that the challenged action might be considered sound

trial strategy. Strickland, 466 U.S. at 689; Hart, 667 S.W.3d at 781; Johnson v. State,

624 S.W.3d 579, 586 (Tex. Crim. App. 2021) (citation omitted). To overcome this

presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the

record and the record must affirmatively demonstrate the ineffectiveness.”

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); see also Johnson,

624 S.W.3d at 586; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

“Under most circumstances, the record on direct appeal will not be sufficient

to show that counsel’s representation was so deficient and so lacking in tactical or

strategic decision-making as to overcome the strong presumption that counsel’s

conduct was reasonable and professional.” Scheanette v. State, 144 S.W.3d 503, 510

(Tex. Crim. App. 2004) (citation omitted); see also Hart, 667 S.W.3d at 782.

Ordinarily, trial counsel should be given an opportunity to explain their conduct

before being considered ineffective. Hart, 667 S.W.3d at 782. Without such an

10 opportunity, and in the face of an undeveloped record on direct appeal, we

“‘commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent

attorney would have engaged in it.’” Id. (quoting Okonkwo v. State, 398 S.W.3d 689,

693 (Tex. Crim. App. 2013)). We will consider counsel’s actions deficient only if

we find no reasonable trial strategy could justify counsel’s acts or omissions,

regardless of their subjective reasoning. See id. (quoting Lopez v. State, 343 S.W.3d

137, 143 (Tex. Crim. App. 2011)).

The record does not indicate that Brown filed a motion for new trial alleging

ineffective assistance, and the record is undeveloped regarding counsel’s trial

strategy and decisions. See Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—

Beaumont 2010, pet. ref’d). With no opportunity for trial counsel to explain his

actions, we assume he had a strategic reason for his decisions. See Hart, 667 S.W.3d

at 782. In addition, trial counsel’s ineffectiveness is not apparent from the record.

See Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003). Brown

cannot defeat the strong presumption that counsel’s decisions during the trial fell

within the wide range of reasonable professional assistance. See Strickland, 466 U.S.

at 689; Hart, 667 S.W.3d at 782. Since nothing in the record supports the conclusion

that trial counsel’s actions were so outrageous that no competent attorney would

have engaged in them, we hold that Brown failed to establish trial counsel’s

11 performance was deficient. See Strickland, 466 U.S. at 687; Hart, 667 S.W.3d 782,

784. We overrule issue four. Having overruled each of Brown’s issues, we affirm

the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON Chief Justice

Submitted on July 12, 2023 Opinion Delivered October 4, 2023 Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.