Joshua Griffin Borders v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-25-00180-CR

JOSHUA GRIFFIN BORDERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 32242B, Honorable Titiana Frausto, Presiding

July 9, 2026 MEMORANDUM OPINION Before DOSS and YARBROUGH and PRATT, JJ.

Appellant, Joshua Griffin Borders, appeals from the judgment convicting him of

indecency with a child by sexual contact, a second-degree felony, and assessing

punishment at fourteen years of confinement.1 His opening brief raised three issues, one

of which he expressly withdrew in his reply brief as unpreserved. Two issues remain:

1 See TEX. PENAL CODE § 21.11(a)(1). whether the trial court abused its discretion in denying his motion for mistrial, and whether

trial counsel rendered ineffective assistance. We affirm.

BACKGROUND

A grand jury indicted Appellant for indecency with a child, alleging that he engaged

in sexual contact with B.G. by touching her genitals with the intent to arouse or gratify his

sexual desire. B.G., eleven years old at the time of trial, testified that Appellant was her

stepfather.

The event occurred on the morning of May 13, 2022, when B.G. was eight. B.G.’s

younger half-brother was sick, and B.G. was kept home from school to help watch him.

After her mother left for work, Appellant invited B.G. to lie down with him and her brother

in his bedroom. While she was trying to fall asleep, Appellant pulled up her dress, pulled

her shorts down slightly, moved her underwear to the side, and touched her genitals. He

briefly stopped and then touched her again. B.G. pretended to be asleep during the event.

She eventually rolled over, Appellant stopped, and she stood up. Appellant then directed

her to the living room.

B.G. disclosed the offense to her mother as soon as her mother returned home

from work. Her mother took the children to the police station to make a report. B.G.

received a sexual-assault examination and participated in a forensic interview. B.G.

testified at trial that she did not fall asleep in the bed with Appellant, but she told the

forensic interviewer that she did fall asleep. She then clarified that she pretended to be

asleep. Appellant questioned B.G. about this discrepancy during the State’s case-in-chief

and his own, and he emphasized it in closing.

2 During the State’s rebuttal, the following exchange occurred:

[State:] Now, we tell our kids if somebody touches you, good touch/bad touch, if something happens to you, you tell, right? You tell. You let somebody know right away. And that is exactly what our girl did. As soon as the first person that she could tell, she did. She did exactly what we want our kids to do. And she has never wavered since. Look at this little girl, 8 years old, and Mr. Wilson thinks that she’s conjured up this whole story. She is a child in the second grade coming up with this elaborate scheme and has remained consistent. Believe her. Believe her. There is no reason to not. Because if you don’t, we need to change the message to just keep it to yourself because we’re not going to believe you anyways, right? [Appellant’s I’m going to object. That’s improper plea for law Counsel]: enforcement outside the allowed ability to do that. She can’t ask them to change their verdict because she doesn’t like what they might decide. THE COURT: I’m going to sustain the objection. [Appellant’s Ask jury to disregard. Counsel]: THE COURT: Jury will disregard the last statement made by [the State]. [Appellant’s Move for a mistrial. Counsel]: THE COURT: Request is denied.

ANALYSIS

A. The Denial of the Motion for Mistrial Was Not an Abuse of Discretion.

Appellant contends that the trial court should have granted a mistrial after the State

made what he characterizes as an improper plea for law enforcement. A mistrial is an

3 extreme remedy reserved for a narrow class of highly prejudicial and incurable errors,

and the trial court’s ruling here was within the zone of reasonable disagreement.

We review the denial of a motion for mistrial for abuse of discretion. Archie v.

State, 340 S.W.3d 734, 738–39 (Tex. Crim. App. 2011) (citing Hawkins v. State, 135

S.W.3d 72, 76–77 (Tex. Crim. App. 2004) (en banc)). The ruling will be upheld if, viewed

in the light most favorable to it, it falls within the zone of reasonable disagreement. Ocon

v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). To assess whether a mistrial was

required, we apply the Mosley balancing factors: (1) the severity of the misconduct, (2) the

measures adopted to cure it, and (3) the certainty of conviction absent the misconduct.

Hawkins v. State, 135 S.W.3d 72, 75 (Tex. Crim. App. 2004) (citing Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998)). A prompt instruction to disregard ordinarily

cures any prejudice arising from improper argument, Ovalle v. State, 13 S.W.3d 774, 783

(Tex. Crim. App. 2000) (en banc) (per curiam), and we presume the jury followed that

instruction. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000) (en banc).

Assuming without deciding that the State’s argument constituted an impermissible

plea for law enforcement, the record supports the trial court’s ruling. The comment was

neither egregious nor prolonged. It came during rebuttal and responded to Appellant’s

closing, which had squarely attacked B.G.’s credibility on the discrepancy regarding

whether she had actually fallen asleep. See Crayton v. State, 463 S.W.3d 531, 535 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (denial of mistrial not an abuse of discretion

where the State’s improper comment was brief and insignificant and the trial court gave

a curative instruction). The prosecutor did not return to the argument. And the trial court

4 gave an immediate instruction to disregard, the effect of which is presumed. Wesbrook,

29 S.W.3d at 116.

The strength of the evidence further supports the ruling. B.G. gave a consistent

account of the touching itself across four separate settings: the outcry to her mother, the

sexual-assault examination, the forensic interview, and her trial testimony. Given the

substantial likelihood of conviction absent the challenged remark, the trial court could

reasonably conclude that a mistrial was unnecessary. See Hawkins, 135 S.W.3d at 75.

We overrule this issue.

B. The Record Does Not Support Appellant’s Ineffective-Assistance Claims.

Appellant challenges trial counsel’s performance as ineffective in three respects:

(A) failing to offer a psychosexual evaluation and to call its author, (B) failing to introduce

during guilt/innocence evidence that B.G.’s mother had disclosed her own history of

sexual abuse to B.G., and (C) failing to preserve error on portions of Dr. Jennings’s

testimony and to request instructions to disregard. On the present record, none of the

three succeeds.

ADDITIONAL BACKGROUND

At a pretrial bond hearing, Appellant introduced a psychosexual evaluation that

found no established pattern of pedophile interests, tendencies, or behaviors and

identified a low risk to re-offend. The same report also contained a sex-item-truthfulness

score of forty-seven, placing Appellant in the medium-risk range and concluding that he

was attempting to minimize his sex-related problems and concerns. It reported an

5 impulsiveness scale score of ninety, in the severe-problem range, and an antisocial scale

score of eighty-nine, indicating the presence of antisocial behaviors and patterns.

Although the report described him as normal, it also found that Appellant showed

significant sexual interests in adolescent females. The report was not offered at trial.

At trial, the State called Lynn Jennings, PhD, a licensed professional counselor

and sex-offender-treatment provider, who testified to behaviors common among children

who have been sexually abused. The State asked whether B.G.’s testimony appeared

consistent. Trial counsel objected, and the trial court sustained the objection. The State

then asked a substantially similar question, to which counsel did not object. Jennings

responded, “She did. That doesn’t speak to believability or anything like that, but it was

consistent.” The State later asked about long-term effects of intrafamily sexual abuse.

Counsel objected on relevance grounds, and the trial court sustained the objection, but

counsel did not move to strike or request an instruction to disregard.

APPLICABLE LAW

The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the effective assistance of counsel. U.S. CONST. amend. VI.; Ex parte Scott,

541 S.W.3d 104, 114 (Tex. Crim. App. 2017). An ineffective-assistance claim requires

proof of counsel’s deficient performance and prejudice; both are ordinarily difficult to

establish on direct appeal. To prevail, an appellant must show (1) counsel’s performance

fell below an objective standard of reasonableness, and (2) a reasonable probability that

but for counsel’s deficient performance the result would have been different. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307–08 (Tex.

6 Crim. App. 2013). We indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance, and any allegation of

ineffectiveness must be firmly founded in the record. Frangias v. State, 450 S.W.3d 125,

136 (Tex. Crim. App. 2013); Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App.

1999).

Direct appeal is typically an inadequate vehicle for an ineffective assistance claim

because the record is generally undeveloped as to counsel’s reasons. Menefield v. State,

363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Prine v. State, 537 S.W.3d 113, 117

(Tex. Crim. App. 2017). When the record is silent, we assume counsel had a strategy if

any sound strategic motivation can be imagined. Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001). To succeed on a claim of ineffective assistance based on the

failure to object, an appellant must also show the trial court would have committed error

in overruling the omitted objection. Ex parte Parra, 420 S.W.3d 821, 824–25 (Tex. Crim.

App. 2013). “It is not sufficient that the appellant show, with the benefit of hindsight, that

his counsel’s actions or omissions during trial were merely of questionable competence.”

Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

With regard to the psychosexual evaluation, Counsel had multiple sound reasons

not to place the report before the jury, and its admissibility is doubtful in any event. The

report’s negative findings, severe-range impulsiveness, antisocial-range findings, an

admission that Appellant was attempting to minimize his sex-related problems, and an

identified sexual interest in adolescent females, plainly carried substantial risk. This Court

7 will presume a strategic motivation to keep such material out on a silent record. See

Garcia, 57 S.W.3d at 440. Beyond that, we cannot say the trial court would have erred

by excluding the report had it been offered. See Ex parte Parra, 420 S.W.3d at 824–25.

A defendant may offer evidence of a pertinent character trait to show it is improbable he

committed the charged offense. TEX. R. EVID. 404(a)(2)(A). But being a non-pedophile

is not evidence of a person’s character or character trait. See Reighley v. State, 585

S.W.3d 98, 103 (Tex. App.—Amarillo 2019, pet. ref’d) (holding “the status of being a

murderer or a pedophile is not a ‘character trait.’”) (citing Wheeler v. State, 67 S.W.3d

879, 882 n.2 (Tex. Crim. App. 2002)). And the record does not establish that its author

was available and would have testified favorably. See Perez v. State, 310 S.W.3d 890,

894 (Tex. Crim. App. 2010).

Appellant did not call B.G.’s mother during the guilt/innocence phase; the record

is silent as to counsel’s reasons. Counsel could reasonably have concluded that placing

Appellant’s ex-wife on the stand risked more harm than benefit. Her punishment-phase

testimony described prior cuddling incidents in which Appellant was repeatedly found with

his hands on B.G.’s lower belly beneath a blanket. On another occasion, she observed

Appellant with an erection after B.G. had “spooned” with him, lying in front of him with the

girl’s bottom faced toward his body. B.G.’s mother also described Appellant’s defensive

reaction when asked about B.G.’s bow being in his bed after he was asked to take the

girl to daycare. Any of these matters could have been developed by the State on cross-

examination during guilt/innocence. See Depena v. State, 148 S.W.3d 461, 470 (Tex.

App.—Corpus Christi 2004, no pet.) (courts should not second-guess a decision not to

call a “double-edged sword” witness).

8 Finally, Appellant complains that his trial counsel was ineffective by failing to object

to certain testimony from Jennings, permitting arguments to objections to occur in front of

a jury, and failing to request an instruction to disregard. However, these also fail because

Appellant cannot establish a reasonable probability of a different outcome. Strickland,

466 U.S. at 687. Regarding the failure to object to the second question posed to Jennings

about B.G.’s consistent response, Jennings expressly qualified her answer: “That doesn’t

speak to believability or anything like that, but it was consistent.” The jury observed B.G.’s

testimony first-hand and could evaluate its consistency without expert aid. As to the

absence of a request to disregard following the sustained relevance objection, the jury

did not hear the substantive testimony the State sought to elicit; the exchange concerned

admissibility. On this record, there is no reasonable probability that an instruction to

disregard would have altered the outcome. Id.

Our resolution of these claims on the present record does not preclude Appellant

from developing them further in a post-conviction proceeding. See Menefield, 363

S.W.3d at 593; Robinson v. State, 16 S.W.3d 808, 810–11 (Tex. Crim. App. 2000).

CONCLUSION

We affirm the trial court’s judgment.

Lawrence M. Doss Justice

Do not publish.