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.
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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
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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
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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
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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.
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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).
ANALYSIS
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
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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 crossexamination 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).
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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).
We overrule this issue.
CONCLUSION
We affirm the trial court’s judgment.
Lawrence M. Doss
Justice
Do not publish.
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