Maxx Austin Burrows v. the State of Texas

Opinion issued October 7, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00625-CR
———————————
MAXX AUSTIN BURROWS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law
Washington County, Texas
Trial Court Case No. 2020-0456

SUBSTITUTE MEMORANDUM OPINION1

1
The memorandum opinion in this case issued on June 17, 2025. Burrows moved
for rehearing. We deny the motion, withdraw the June 17, 2025 memorandum
opinion and judgment of the same date, and issue this substitute opinion and
judgment in their stead.
Burrows appeals from an order revoking his probation and sentencing him to

9 months’ confinement in Washington County jail. On appeal, he argues that the

trial court violated his right to confrontation by admitting certain testimony, that

the trial court erred in admitting photographs, and that the trial court abused its

discretion in finding that he had violated a condition of probation. We affirm.

Background

In December 2021, Burrows pleaded guilty to driving while intoxicated

(“DWI”) second offense, a Class A misdemeanor. See TEX. PENAL CODE §§ 49.04,

49.09(a). A Washington County trial court found him guilty and assessed

punishment at 365 days in jail. The trial court suspended imposition of the

sentence and placed Burrows on 18 months’ community supervision—probation.

In November 2022, Burrows was arrested in Burleson County. In January

2023, the State moved to revoke probation alleging that in November 2022,

Burrows violated probation by committing a criminal offense, felony DWI, in

Burleson County. See id. § 49.09(b) (enhancing DWI to third-degree felony for

third offense).

In August 2023, the trial court held a hearing on the State’s motion to revoke

Burrows’s probation. Burrows pleaded “not true” to the allegation. At the

revocation hearing, Corporal J. Gilliam of the Texas Department of Public Safety

Highway Patrol testified that while on patrol in Burleson County in November

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2022, he responded to a single-vehicle crash on County Road 132. He arrived

about 4:00 p.m. and saw a vehicle flipped upside down in a ditch.

When he approached, he found Burrows being treated by emergency

personnel in the back of a pickup truck. The pickup was not involved in the

accident. Burrows denied that he had been drinking alcohol and told Corporal

Gilliam that he had hydroplaned and lost control of his car. Corporal Gilliam

testified that the road was wet from earlier rain.

Corporal Gilliam observed an interlock device connected to the crashed

vehicle and testified that the device would not allow a vehicle to start if alcohol

was detected from the person using it. Corporal Gilliam observed that Burrows

showed signs of intoxication. Corporal Gilliam noticed the odor of alcohol,

Burrows’s bloodshot and glassy eyes, and that Burrows’s speech was “a little bit

thick and kind of elongated.” Corporal Gilliam also observed empty Svedka vodka

bottles near the crash.

After Burrows was treated for a laceration on his head, Corporal Gilliam

administered standardized field sobriety tests. Corporal Gilliam concluded that

Burrows was intoxicated and arrested him. Burrows refused Corporal Gilliam’s

request for a blood specimen, so Corporal Gilliam obtained a search warrant for

Burrows’s blood. Corporal Gilliam obtained the blood sample and submitted it for

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testing. Over objection, Corporal Gilliam testified that the toxicology test results

showed the presence of alcohol in Burrows’s blood.

Burrows’s probation officer M. Cupit testified that she spoke with Burrows a

few days after the Burleson County arrest. Burrows told her that he had an

argument with his parents and decided to go driving around. He said he made a

“bad choice” and purchased alcohol. When she asked how Burrows could use the

interlock device to start the car, he told her that he did not drink the alcohol

initially. Instead, he went to the store, bought it, drank some, and then knew he had

a few minutes to return home. He told the probation officer that on the way home,

he “hit” water and skidded off the road. According to Cupit, Burrows had no other

violations while on probation.

A Washington County probation officer testified that she had no interactions

with Burrows before the Burleson County DWI arrest. She testified that since April

2023, Burrows had worn a “SCRAM device,” and based on the device report, he

had no violations while wearing it.2

2
A “Secure Continuous Remote Alcohol Monitor” or “SCRAM device” is a
bracelet that a defendant wears that continuously measures alcohol that is
eliminated through the skin. Mathis v. State, 424 S.W.3d 89, 91 n.2 (Tex. Crim.
App. 2014).

4
The trial court found that Burrows had violated probation by committing a

criminal offense and revoked his probation. The trial court sentenced Burrows to 9

months’ confinement in the Washington County jail. He appealed.

Confrontation Clause

In his first issue, Burrows argues that the trial court violated his right to

confrontation by allowing the arresting officer to testify to toxicology report

results.3 Over Burrows’s objection, the arresting officer testified that toxicology

results showed the presence of alcohol in Burrows’s blood.

The Sixth Amendment’s Confrontation Clause states, “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him[.]” U.S. CONST. amend VI. We review de novo whether the

trial court’s evidentiary ruling violated the appellant’s right to confrontation. Mims

v. State, 238 S.W.3d 867, 871 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Burrows complains that the State introduced testimonial evidence of his

blood alcohol results through the arresting officer, depriving him of the

opportunity to cross-examine the analyst who performed the testing and reported

the results. Burrows urges us to find that the right applies by citing to cases

declining to find that the Confrontation Clause applies to deferred adjudication

proceedings. See Hughes v. State, 691 S.W.3d 504, 509 (Tex. Crim. App. 2024)

3
Burrows does not complain of a violation of his due process rights under the
Fourteenth Amendment.
5
(declining to address whether Confrontation Clause applies to motion to adjudicate

guilt as intermediate appellate court held, and deciding instead on Due Process

grounds); Torres v. State, 617 S.W.3d 95, 101 (Tex. App.—Houston [1st Dist.]

2020, pet. ref’d) (stating whether Confrontation Clause applies to community

supervision revocation proceedings remains unsettled). These cases do not help

Burrows, not only because they do not apply the Confrontation Clause, but also

because this case is in a fundamentally different posture. In a deferred adjudication

hearing, the trial court has not found the defendant guilty. Burrows’ adjudication of

guilt was not deferred. The trial court found Burrows guilty in December 2021.

The court sentenced him, but suspended imposition of sentence in lieu of 18

months’ community supervision, i.e., probation. When Burrows violated a term of

probation, the State moved to revoke it.

The United States Supreme Court is clear that the Sixth Amendment right to

confront witnesses does not apply to parole revocation hearings. Morrisey v.

Brewer, 408 U.S. 471, 480 (1972) (stating parole revocation proceeding is not

criminal prosecution and therefore full panoply of rights due defendant does not

apply); see Ex parte Zubiate, 710 S.W.3d 724, 726 (Tex. Crim. App. 2025)

(“[P]arole hearings are not criminal prosecutions because they arise after

conviction.”); see also United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006)

(“Because revocation proceedings are not criminal prosecutions, Sixth Amendment

6
rights are not implicated.”); State v. Esquilin, 179 Conn. App. 461, 472, 179 A.3d

238, 245 n.10 (2018) (collecting cases from eight circuits and twenty-three states

for the proposition that the Confrontation Clause does not apply to revocation of

probation hearing; “[S]ince Crawford [v. Washington, 541 U.S. 36 (2004)], an

overwhelming majority of federal circuit and state appellate courts that have

addressed this issue have concluded that Crawford does not apply to a revocation

of probation hearing.”). The right to confrontation did not apply to Burrows

because he appeals from probation revocation proceedings.4

We overrule Burrows’s issue related to the Confrontation Clause.

Admission of Evidence

Burrows argues that the trial court abused its discretion when it admitted

certain photographs into evidence. We review a trial court’s decision on the

admissibility of evidence under an abuse of discretion standard. Johnson v. State,

4
Even if the admission of testimony that alcohol was found in Burrows’s system
was a violation of the Confrontation Clause, the error does not require reversal.
TEX. R. APP. P. 44.2(a) (stating constitutional error requires reversal “unless the
court determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App.
2007) (same). In conducting our harm analysis, we consider the entire record and
the importance of the complained of evidence to the State’s case, whether the
evidence was cumulative of other evidence, the presence or absence of other
evidence corroborating or contradicting the complained-of evidence, the strength
of the State’s case, and any other fact in the record that affects the probable impact
of the error. See Clay, 240 S.W.3d at 904. We are persuaded beyond a reasonable
doubt that the court’s decision as to Burrows’s alleged probation violation would
have been the same even if the trial court had not admitted the complained-of
testimony. The complained-of evidence established little, if anything, that was not
also well established by the properly admitted evidence.
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490 S.W.3d 895, 908 (Tex. Crim. App. 2016). Under that standard, a trial court’s

ruling will be deemed an abuse of discretion if it is so clearly wrong as to lie

outside the zone of reasonable disagreement or is arbitrary or unreasonable. Lopez

v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002); see State v. Mechler, 153

S.W.3d 435, 439 (Tex. Crim. App. 2005).

Burrows claims that the trial court abused its discretion in admitting State’s

Exhibits Two through Nine into evidence. The exhibits were photographs of the

single-vehicle crash scene. Appellant objected to their admission at trial, arguing

that the photographs had not been provided to him following a discovery request

under article 39.14. See TEX. CODE CRIM. PROC. art. 39.14 (“Michael Morton

Act”). At trial, the Washington County Attorney’s office acknowledged that it had

not provided the photographs to Burrows but argued that the photographs would

have been provided to him by Burleson County. Burrows’s counsel explained that

he had received a video related to Burrows arrest in Burleson County but that he

had not received or was not sure he had received the photographs. The trial court

overruled the objection and admitted the photographs into evidence.

On appeal, Burrows argues that the State was required to timely produce the

exhibits pursuant to article 39.14, and therefore, the exhibits should not have been

admitted into evidence. Article 39.14(a) requires the State, “as soon as practicable”

after receiving a timely request, to produce and permit the inspection and

8
electronic duplication by the defense of “material” evidence.5 TEX. CODE CRIM.

PROC. art. 39.14(a); Watkins v. State, 619 S.W.3d 265, 290 (Tex. Crim. App. 2021)

(defining “material” under article 39.14 as “having a logical connection to a

consequential fact,” synonymous with “relevant”). Burrows argues that the exhibits

were improperly admitted, and he was harmed because the photographs were the

sole physical evidence before the trial court.

Assuming without deciding that (1) article 39.14 applies to probation

revocation proceedings; and (2) the State violated article 39.14 by not disclosing

the photographs sooner, the record does not demonstrate the requisite harm. See

TEX. R. APP. P. 44.2(b) (requiring reviewing courts to disregard any

nonconstitutional error that does not affect appellant’s substantial rights).

First, Burrows cannot argue that he was harmed by not having time to

prepare with the photographs because any such harm could have been alleviated by

a request for continuance. By failing to request a continuance or otherwise suggest

a remedial measure, he forfeited any complaint of lack of time to prepare. See

Sopko v. State, 637 S.W.3d 252, 258 (Tex. App.—Fort Worth 2021, no pet.)

(stating appellant forfeited discovery request complaint by failing to seek

continuance after new material given to him).

5
The State does not contest that Burrows made the requisite request.
9
Second, we cannot say that the photographs harmed Burrows because any

assumed error did not influence or had no more than a slight effect on the trial

court’s decision. Johnson v. State, 72 S.W.3d 346, 348–49 (Tex. Crim. App. 1998)

(stating error that did not influence or had no more than slight effect on trial court’s

decision does not affect appellant’s substantial rights). Before the photographs

were admitted, Corporal Gilliam’s testimony described the scene of the crash.

Corporal Gilliam’s testimony described what each of the exhibits visually depicted.

He testified that he responded to a single-vehicle crash where a car had overturned

in a ditch. Corporal Gilliam testified that Burrows said he lost control of his car

and crashed. Exhibits Two, Three, Four, and Six show the overturned vehicle.

Corporal Gilliam noted several Svedka vodka bottles in the grass near the

car, and he noted that the car had an interlock device. He testified about the signs

of intoxication he noticed Burrows displaying and the field sobriety tests he

performed. Exhibits Five and Seven depict liquor bottles in the grass, and an empty

vodka bottle can be seen in Exhibit Four as well. Corporal Gilliam testified that the

bottle in Exhibit Five was the same one shown in Exhibit Four, and that the bottle

in Exhibit Seven was a smaller size than the others found on the scene. Exhibit

Nine is an empty Svedka vodka bottle in a plastic evidence bag. Corporal Gilliam

testified that the bottle was found in Burrows pocket when he was arrested. Exhibit

10
Eight is a photo of the interlock device in the vehicle. The photographs were

cumulative of Corporal Gilliam’s testimony.

After reviewing the entire record, we hold that Burrows did not establish that

he was harmed by admission of the photographs. The admission of the photographs

did not affect Burrows’s substantial rights, as they did not influence or had no

more than a slight effect on the trial court’s decision.

We overrule Burrows’s issue.

Probation Revocation

Burrows contends that the trial court abused its discretion by finding that he

violated the terms of probation. Burrows argues that the State did not prove that he

was driving while intoxicated. We disagree.

A. Standard of Review

We review a trial court’s decision to revoke community supervision for an

abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).

In determining questions about sufficiency of the evidence in probation revocation

cases, the burden of proof is by a preponderance of the evidence. Id. “[A]n order

revoking probation must be supported by a preponderance of the evidence; in other

words, that greater weight of the credible evidence which could create a reasonable

belief that the defendant has violated a condition of his probation.” Id. (quoting

Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). The trial court

11
is the sole judge of the witnesses’ credibility and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013);

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

B. Analysis

To prove that Burrows violated his probation by violating the laws of Texas,

the State needed to prove by a preponderance of the evidence that Burrows was

intoxicated while operating a motor vehicle in a public place. See TEX. PENAL

CODE § 49.04(a). Burrows contends that the State failed to establish a temporal link

between his alleged intoxication and driving the car.

The evidence establishes by a preponderance of the evidence that Burrows

violated his probation by committing a DWI. Probation Officer Cupit testified that

Burrows admitted to her that he had driven to a store, purchased alcohol, consumed

it before or during driving, and then driven home quickly to avoid needing to use

the interlock device installed in his car.

Corporal Gilliam testified that he responded to the single-vehicle crash on

the side of a county road. Burrows told Corporal Gilliam that he lost control of the

car. Corporal Gilliam testified that he smelled alcohol on Burrows and noticed

signs of intoxication in his eyes and manner of speech. Corporal Gilliam

administered field sobriety testing that led him to believe that Burrows was

12
intoxicated. Corporal Gilliam also testified that he found multiple vodka bottles

near the crashed car. “Being intoxicated at the scene of a traffic accident in which

the actor was a driver is some circumstantial evidence that the actor’s intoxication

caused the accident, and the inference of causation is even stronger when the

accident is a one-car collision with an inanimate object.” Kuciemba v. State, 310

S.W.3d 460, 462 (Tex. Crim. App. 2010) (holding evidence sufficient for DWI

conviction under “beyond a reasonable doubt” standard). As in Kuciemba,

Corporal Gilliam testified that Burrows had a fresh laceration on his head.

Kuciemba, 310 S.W.3d at 463 (stating bleeding injury supports inference that

accident had occurred recently).

After reviewing the record, we hold that the greater weight of the credible

evidence could create a reasonable belief that Burrows had violated a condition of

probation. The trial court did not abuse its discretion in finding by a preponderance

of the evidence that Burrows had violated his probation by committing DWI.

We overrule Burrows’s third issue.

Conclusion

We affirm the trial court court’s judgment.

Susanna Dokupil
Justice

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Panel consists of Justices Guerra, Gunn, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

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