Ethan Thomas Brown v. the State of Texas ( 2023 )

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
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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
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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-
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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.”
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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
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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
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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
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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
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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.
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“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
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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
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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.
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