Larry Darnell West v. State

Affirmed and Memorandum Opinion filed May 8, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00204-CR

LARRY DARNELL WEST, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1249489

MEMORANDUM OPINION

Appellant Larry Darnell West appeals his conviction of sexual assault, claiming in
one issue that he received ineffective assistance of counsel and asserting in three other
issues that the trial court erred in the following ways: (1) excluding evidence relating to a
civil lawsuit filed by the complainant in an unrelated incident; (2) admitting testimony
from the State’s rebuttal witness; and (3) overruling appellant’s objections to the State’s
characterization of him as a sexual predator during the State’s closing argument in the
punishment phase. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with the felony offense of sexual assault
arising from an incident in which appellant allegedly robbed a laundromat and physically
and sexually assaulted the complainant, a female employee. The indictment alleged two
enhancement paragraphs for prior felony convictions. Appellant pleaded “not guilty” to
the charged offense.

At trial, the complainant testified that she was employed at a laundromat and
opened the business one morning when appellant, wearing a jacket with the hood over his
head, entered the establishment and asked to use the restroom. Despite being told that the
restroom was for customers’ use only, appellant entered the restroom. According to the
complainant, when appellant exited the restroom, he demanded keys to the building. He
then struck her in her eye with his fist and knocked her to the ground as she was
retrieving the keys from her pocket. The complainant stated that appellant used the keys
to lock the front door of the establishment, retrieved a cash box, and forced her to a back
office. In the office, appellant told the complainant to pull her pants down, instructed her
to lay on the floor, and then placed his penis inside her sexual organ. He then locked her
inside the office with a padlock, left the keys on the floor, and fled through the front door
with the cash box.

According to the record, Donald Lee Harmason, a long-time friend of the
complainant’s, discovered her in the office, released her, and offered her money needed
to call law enforcement. The complainant told responding officers about the robbery, but
because she did not feel comfortable discussing the sexual assault, she did not tell them
about it. Although the complainant claimed to have recognized appellant, she did not
know his name and could not recall how she recognized him when she talked to
investigators. The record reflects that appellant knew the owner of the laundromat, and
had worked at one point for the owner at other business locations, and had accompanied

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the owner to that location on at least one occasion when the complainant was working
there.

The complainant was taken by ambulance to a hospital for treatment of the
lacerations to her eye. At the hospital, the complainant told a nurse about the sexual
assault. Semen samples taken during a sexual-assault examination of the complainant
revealed a DNA profile that matched appellant’s DNA profile. The complainant later
identified appellant from a photo line-up as the person who sexually assaulted her.

Appellant testified and admitted to having sexual intercourse with the
complainant, an act that he claimed was consensual and performed in exchange for
money. According to appellant, after the two engaged in sexual intercourse, the
complainant complained that he had not paid her enough money. Appellant claimed that
the complainant grabbed him by his shoulder and he swung at her with his arm as he left
the premises. According to appellant, he was reflexively trying to wave the complainant
off of him, but he did not know if he actually made contact. He denied locking the
complainant in the office before leaving the premises. Appellant testified that in the past
he had paid women to have sex with him. According to appellant, these women, many of
whom used narcotics or consumed alcohol, “wanted what they wanted,” and he “wanted
what [he] wanted.”

The jury found appellant guilty as charged. At the punishment hearing, appellant
pleaded “true” to the enhancement allegations and stipulated to five prior felony
convictions for theft. The enhancement paragraphs were found to be true. The jury
assessed appellant’s punishment at seventy years’ confinement.

ISSUES AND ANALYSIS

Did the trial court err in excluding evidence relating to the complainant’s civil
lawsuit?
In his first issue, appellant claims the trial court improperly excluded evidence of
the complainant’s civil lawsuit filed against a railroad company in connection with an
unrelated incident. According to appellant, the complainant had a financial motive to

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engage in an act of prostitution with him and that evidence of the civil lawsuit
demonstrated that the complainant sought monetary compensation. Appellant claims that
because he was not permitted to cross-examine the complainant about the civil lawsuit,
he was prevented from putting forth evidence of the complainant’s financial motive for
the jury’s consideration to find that the complainant engaged in consensual prostitution,
which was his central defensive theory.

The record reflects that in March 2006, the complainant filed a civil suit against a
railroad company on behalf of her children relating to “some type of gas.” When
appellant’s defense counsel sought to elicit testimony from the complainant about this
civil suit, the State objected that the evidence had no relevance in the criminal case.
Appellant claimed that the evidence showed that by filing suit, the complainant had
financial hardships, and that the complainant had a motive. The trial court sustained the
State’s objection and ruled that appellant could ask questions on cross-examination about
other sources of income available to the complainant.

A trial court’s evidentiary ruling is reviewed for abuse of discretion. Burden v.
State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Under this standard, the trial court
does not abuse its discretion if the ruling was within the zone of reasonable disagreement.
A reviewing court will uphold the trial court’s decision if the ruling is correct on any
theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim.
App. 2000).

Whether a witness brought a civil suit against a defendant arising from the same
incident for which the defendant is on trial is admissible as tending to show interest and
bias. See Hoyos v. State, 982 S.W.2d 419, 421 (Tex. Crim. App. 1998). Relevance of
such evidence is derived from the impeachment value to show motive to give false
testimony based on a witness’s desire to recover damages or other relief. See Palermo v.
State, 992 S.W.2d 691, 698 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). But, proof
that a witness has initiated suit against a third party, even as a result of the circumstances
upon which the criminal action against the defendant is based, is not necessarily relevant

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to show bias against the defendant. See Hoyos, 982 S.W.2d at 421. We consider the
following four factors to determine whether evidence of the civil suit against a third party
is relevant: (1) whether the criminal defendant is a party to the civil suit; (2) whether a
relationship existed between the criminal defendant and the third party; (3) whether a fact
issue existed in the civil suit as to the occurrence of the crime; and (4) whether any other
reason existed to believe the civil suit might cause the witness to be biased. See Hoyos,
982 S.W.2d at 421.

When applying the four factors to the case under review, none of the factors
support the relevance of the complainant’s civil suit for the purpose of showing the
complainant’s bias or motive to testify falsely against appellant. See id. at 421–22. The
record does not reflect that appellant was a party to that civil suit or that he shared a
relationship with the railroad company or the subject matter. The record does not show
that a fact issue existed in the civil suit as to the occurrence of the crime. No other reason
supports a legitimate basis to believe that the civil suit might cause the complainant to be
biased against appellant at the criminal trial. See id.

Appellant was free to present other evidence of the complainant’s purported
financial hardship. The trial court did not abuse its discretion in sustaining the State’s
objection to introduction of evidence relating to the complainant’s civil suit against a
railroad company because it was not relevant and did not give rise to an inference of bias.
See id.; Tex. R. Evid. 402, 403. We overrule appellant’s first issue.

Did the trial court improperly admit testimony from the State’s rebuttal witness?

In his second issue, appellant claims the trial court erred in admitting the
testimony of rebuttal witness, Donald Lee Harmason, called by the State because the
witness’s name was not properly disclosed before trial.

The State called the witness (Harmason) to rebut the testimony of the laundromat
owner, who previously had been called by the defense, out of order, to testify. The owner
testified that when he arrived at the laundromat after the incident occurred, he saw a man

5
on a bicycle along with the complainant’s parents. Although the owner did not know the
man, he learned from the complainant that the man was her long-time friend. The owner
testified that he learned from the complainant that “some guy” freed the complainant
from the locked office. When asked if he recalled that the long-time friend was the
person who freed the complainant, the owner agreed that a “friend or somebody” helped
her. The owner denied talking to the friend or knowing anything about the friend. The
owner denied knowledge about the complainant’s personal relationships.

When the State sought to call Harmason to the stand, appellant objected, asserting
that Harmason had not been identified on the witness list. Appellant expressed his
understanding that Harmason served as the State’s rebuttal witness to rebut the owner’s
testimony. When appellant objected to Harmason testifying because the defense had no
notice, the State argued that it did not know that Harmason’s testimony would be
important until after the owner had testified. The trial court overruled the objection.

Harmason, who testified the following day, claimed that he rode his bicycle to the
laundromat, saw the complainant in the locked office, picked up the keys from the floor,
and unlocked the office door to free her. He did not know about the sexual assault until
he spoke with the complainant at a later time. He did not speak with investigating
officers. Neither party questioned Harmason about the owner or the owner’s testimony.

The State is not required to disclose rebuttal witnesses because it cannot predict
the theories or evidence the defense will present at trial. See Beets v. State, 767 S.W.2d
711, 747–48 (Tex. Crim. App. 1987) (op. on reh’g); Hoagland v. State, 494 S.W.2d 186,
188–89 (Tex. Crim. App. 1973). We review a trial court’s decision to allow an
undisclosed witness to testify under an abuse-of-discretion standard. Bridge v. State, 726
S.W.2d 558, 566 (Tex. Crim. App. 1986); Cureton v. State, 800 S.W.2d 259, 262 (Tex.
App.—Houston [14th Dist.] 1990, no pet.). Absent a showing of bad faith, a trial court
does not abuse its discretion by allowing the State to call an undisclosed witness for the
sole purpose of rebutting unforeseen testimony. See Marx v. State, 953 S.W.2d 321, 338
(Tex. App.—Austin 1997), aff’d, 987 S.W.2d 577 (Tex. Crim. App. 1999).

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 We consider two factors when determining whether the trial court abused its
discretion in allowing an undisclosed witness to testify: (1) whether the prosecutor acted
in bad faith in failing to provide the defense with a witness’s name; and (2) whether the
defendant reasonably could have anticipated that the witness would testify despite the
State’s failure to disclose the witness’s name. Cureton, 800 S.W.2d at 262. If an
appellant does not demonstrate these factors on appeal, the trial court’s decision to admit
the testimony will not be disturbed. Castenada v. State, 28 S.W.3d 216, 223 (Tex.
App.—El Paso 2000, pet. ref’d).

We consider the following three areas of inquiry to determine whether the State
acted in bad faith: (1) whether the defense demonstrates the State’s intent to deceive; (2)
whether the State’s notice left the defense adequate time to prepare; and (3) whether the
State freely provided the defense with information by maintaining an open-file policy or
providing updated witness lists, for example. See Martinez v. State, 131 S.W.3d 22, 29
(Tex. App.—San Antonio 2003, no pet.). According to the State, it did not know
Harmason’s testimony would be important until after the defense called the owner to
testify. Appellant did not assert that, once the trial court ruled to admit Harmason as a
rebuttal witness, he did not have adequate time to prepare or that the State failed to
provide information about Harmason to the defense. To the contrary, the record reflects
that Harmason did not testify until the following day, which gave appellant an
opportunity to prepare to vigorously cross-examine him. See id. at 30. The record does
not establish that the State acted in bad faith. See id. at 29–30.

In considering whether appellant reasonably could have anticipated that Harmason
would testify, we consider the following factors: (1) the degree of surprise to the
accused; (2) the degree of disadvantage inherent in that surprise (e.g., the witness
provided cumulative or uncontested issues); and (3) the degree to which the trial court
could remedy the surprise. See id. Appellant could hardly have been surprised from
Harmason’s testimony because the testimony was cumulative of similar evidence already
before the jury; the record reflects numerous witnesses testified that a friend of the

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complainant’s opened the door to the locked office and freed the complainant. See id. at
30 (providing that accused was aware of content of testimony). The record reflects that
appellant reasonably could have anticipated the testimony from Harmason that he was the
person who freed the complainant from the back office of the laundromat. See id.

To the extent appellant complains on appeal that Harmason’s testimony actually
did not rebut any prior testimony and served only to bolster the complainant’s testimony,
appellant has failed to preserve this issue for appellate review. Because appellant did not
voice this objection or move to strike the testimony in the trial court, appellant waived
this complaint. See Tex. R. Evid. 103(a)(1) (providing that to preserve error in admitting
evidence, a party should object or move to strike the testimony); Heidelberg v. State, 36
S.W.3d 668, 673–74 (Tex. App.—Houston [14th Dist.] 2001, no pet.). We overrule
appellant’s second issue.

Did the trial court err in overruling appellant’s objection to the State’s
characterization of him as a sexual predator during the State’s closing argument in
the punishment phase?
In his third issue, appellant claims the trial court erred in allowing the prosecutor
to characterize him as a sexual predator during the State’s punishment-phase closing
argument. The record of the punishment phase reflects that the State waived its right to
be the first to give closing argument; appellant’s trial counsel gave closing argument, and
the State then gave a closing argument in which the prosecutor made the following
remarks:

[Prosecutor]: There isn’t a cure for sexual predators. There isn’t. You can
only keep them away from those who are our most vulnerable victims.
That is all, that is all we know to do.
And with regard to sexual predator, what does one look like?
The trial court overruled appellant’s objection to the prosecutor’s characterization of
appellant as a sexual predator, and the prosecutor continued, as follows:

[Prosecutor]: What does a sexual predator look like?
You know what? It would be a lot easier if sexual predators had a
tattoo on their forehead[s] that let you know what is going on in their head
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 and what they might be doing. But honest[ly], that doesn’t happen. The
scariest of them can walk amongst us in society and play the roles that they
want—that people want them to play and not let them know about their
secret desires and fantasies and the fact that they could go have breakfast
and then brutally rape a woman on a concrete floor.
The prosecutor then asked the jury to consider the nature of the offense and the nature of
the defendant. The prosecutor stated that appellant enjoyed and was aroused by control
and referred to appellant’s testimony that he “wants what [he] wants” in reference to his
past practices of paying prostitutes for sex. The prosecutor referred to other examples of
appellant’s nature, citing appellant’s own testimony, before ultimately asking the jury to
assess a sentence of fifty years or more.

A proper jury argument fits into one of four general areas: (1) summation of the
evidence, (2) reasonable deductions from the evidence, (3) answers to the arguments of
opposing counsel, and (4) pleas for law enforcement. Guidry v. State, 9 S.W.3d 133, 154
(Tex. Crim. App. 1999). We analyze the statement in light of the entire argument and not
on isolated sentences. See Delarue v. State, 102 S.W.3d 388, 405 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d).

The record reflects appellant’s own admission in the guilt-innocence phase that, in
the past, he had paid women to have sex with him. Appellant testified that despite this
practice, he did not “prey on women.” Appellant’s trial counsel made the following
pertinent statements in closing argument at punishment:

We understand what, you know, back on January 25th, 2007, an incident
occurred. But I just don’t want you to believe or have a painted picture that
Mr. West is in any kind of way a predator or monster or anything of the
sort, that he does have a kind and gentle heart.
The prosecutor’s characterization of appellant as a “sexual predator” amounted to
permissible argument in response to arguments of opposing counsel, in which counsel
claimed appellant was not a predator. See Delarue, 102 S.W.3d at 405. Likewise, given
appellant’s own testimony that he did not prey on women, the prosecutor’s remark could
constitute a reasonable deduction from the evidence based on both the complainant’s

9
account of the incident and appellant’s own testimony that the sexual encounter on the
concrete floor of a public business during business hours was “not romantic.” See
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The trial court did not
err in overruling appellant’s objection to the remarks. See id. at 115–16. We overrule
appellant’s third issue.

Did appellant receive ineffective assistance of counsel at trial?

In his fourth issue, appellant asserts that he received ineffective assistance of
counsel at trial and, in support of this claim, appellant cites to the following alleged
deficiencies by his trial counsel: (1) failure to obtain a ruling on his motion to allow
appellant to testify free from impeachment of other convictions; (2) failure to generate a
record of evidence relating to the complainant’s civil lawsuit; (3) failure to request a
continuance when the trial court overruled appellant’s objection to Harmason testifying
as a rebuttal witness and in the cross-examination of this witness; (4) “opening the door”
on direct testimony about appellant’s prior felony convictions and extraneous-offense
evidence; and (5) failure to introduce mitigating evidence or call any witnesses during the
punishment phase.

Both the United States and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE
CRIM. PROC. art. 1.051 (West 2005). This right necessarily includes the right to
reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.
Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that
(1) trial counsel’s representation fell below an objective standard of reasonableness,
based on prevailing professional norms; and (2) there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 688–92. Moreover, appellant bears the burden of
proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d
954, 956 (Tex. Crim. App. 1998).

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 In assessing appellant’s claims, we apply a strong presumption that trial counsel
was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We
presume counsel’s actions and decisions were reasonably professional and were
motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). When, as in this case, there is no proper evidentiary record developed at a
hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s
performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit
from trial counsel becomes almost vital to the success of an ineffective-assistance claim.
Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d). The Court of Criminal Appeals has stated that it should be a rare case in which an
appellate court finds ineffective assistance on a record that is silent as to counsel’s trial
strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent
record, this court can find ineffective assistance of counsel only if the challenged conduct
was “‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)). There was no motion for new trial filed in
this case.

Failure to obtain a ruling on a motion to allow appellant’s testimony free from
impeachment of prior convictions
The record contains appellant’s motion to permit appellant to testify free from
impeachment by prior criminal convictions; the trial court did not rule on the motion.
Eliciting testimony from an accused as to his own prior convictions can be a matter of
sound trial strategy if the prior convictions are admissible. See Martin v. State, 265
S.W.3d 435, 443 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

A witness may open the door to otherwise inadmissible evidence of prior
convictions when he creates a false impression about an accused’s criminal history. See
James v. State, 102 S.W.3d 162, 180–81 (Tex. App.—Fort Worth 2003, pet. ref’d). This
exception is construed narrowly. See id. As reflected in the record, Al Pye testified that
11
his moving business would only hire employees with integrity because he trusted
employees, including appellant, not to commit theft. On cross-examination, although Pye
admitted having knowledge that appellant had been in jail, Pye denied knowing that
appellant had been convicted of robbery, burglary, and two times for theft by receiving.
Appellant then testified and confirmed he had a 1984 robbery conviction, two theft
convictions, respectively in 1992 and 1997, and a burglary conviction in 2002. When, as
in this case, a defendant testifies, the defendant places his credibility at issue and may
thereafter be impeached like any other testifying witness. See Geuder v. State, 142
S.W.3d 372, 375 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

Under Texas Rule of Evidence 609(a), for the purpose of attacking the credibility
of a witness, evidence that a person was convicted of a crime may be admissible if the
prior conviction was a felony or a conviction that involved moral turpitude. Tex. R.
Evid. 609(a). Before evidence is admitted, the trial court must determine that the
probative value of the evidence outweighs the prejudicial effect to the party. Id.
Evidence of a conviction is admissible under this rule if a period of less than ten years
has elapsed since the date of the conviction or the release date of the witness from
confinement imposed for that conviction. Tex. R. Evid. 609(b).

In applying Rule 609(b) to the dates of the convictions, appellant’s 2002
conviction for burglary was admissible. See Tex. R. Evid. 609(b). As for appellant’s
1997 convictions for theft and financial transaction card theft and appellant’s 1992
conviction for theft, although these crimes may be too remote as falling outside of the
ten-year period before the instant offense, theft is a crime of moral turpitude, such that
those convictions, likewise are admissible under Rule 609(a). See Tex. R. Evid. 609(a);
Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d) (providing that theft is a crime of moral turpitude and that such convictions
involving moral turpitude can be “tacked onto” remote convictions to remove the taint of
remoteness); Lape v. State, 893 S.W.2d 949, 958 (Tex. App.—Houston [14th Dist.] 1994,
pet. ref’d). Because appellant was convicted of crimes involving moral turpitude, those

12
convictions can remove the taint of the remoteness of appellant’s 1984 robbery
convictions, rendering the 1984 conviction, likewise, admissible. See Martin, 265
S.W.3d at 443–44; Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d). Consequently, the prior convictions are admissible if the
probative value of the evidence outweighs the prejudicial effect. See Tex. R. Evid.
609(a); Martin, 265 S.W.3d at 444; Rodriguez, 129 S.W.3d at 559.

In appellant’s motion, he cited a number of factors set out in Theus v. State, 845
S.W.2d 874, 880 (Tex. Crim. App. 1992), as supporting his argument that the probative
value of the prior convictions was outweighed by the prejudicial effect. As one basis of
appellant’s ineffective-assistance claim, appellant asserts that his trial counsel did not
obtain a ruling on the motion or ask the trial court to conduct an analysis using the Theus
factors. The record is silent as to the reasons behind trial counsel’s strategy for not
obtaining a ruling on the motion. Appellant has not met the burden of demonstrating that
his counsel was deficient.

Failure to make a record of excluded evidence relating to the complainant’s civil
lawsuit
Appellant claims that his trial counsel failed to comply with Texas Rule of
Evidence 103(a)(2), which requires a party complaining of the exclusion of evidence to
make the substance of the evidence known to the trial court by an offer of proof, unless
the substance was apparent from the context within which the questions were asked. See
Tex. R. Evid. 103(a)(2). Although appellant did not put on a formal offer of proof with
questions and answers, this kind of offer is not required to preserve error when counsel
seeking admission of the evidence describes the evidence to the trial court or when the
content of the evidence is apparent from the context. See Holmes v. State, 323 S.W.3d
163, 168 (Tex. Crim. App. 2009); Fox v. State, 115 S.W.3d 550, 559 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d).

The record reflects that appellant’s trial counsel described the nature of the
proffered evidence of the complainant’s civil suit filed in March 2006 against a railroad

13
company on behalf of her children as relating to “some type of gas.” According to the
record, it is possible that at the time the charged offense occurred, the civil suit was in the
middle of settlement negotiations. Appellant’s trial counsel claimed that the evidence
was relevant to show that by filing suit, the complainant sought monetary damages and
had endured financial hardships, which, in turn, resulted in her resorting to prostitution.
An informal bill of review will suffice as an offer of proof when it includes a concise
statement of counsel’s belief of what the testimony would show. See Johnson v. State,
233 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To preserve
error, an informal bill must include a summary of the proposed testimony. Id. Given the
brief description of the proffered evidence with concise facts, as reflected by the record
and stated by trial counsel regarding the civil suit, appellant’s trial counsel did not render
ineffective assistance. See id.

Failure to move for a continuance upon learning of an undisclosed rebuttal
witness
Appellant claims that his trial counsel should have moved for a continuance when
the trial court ruled to allow Harmason’s testimony. According to appellant, without a
continuance and given counsel’s failure to state how appellant would be harmed, the trial
court was unable to remedy the surprise appellant complains of upon learning of
Harmson’s testimony. Whatever counsel’s rationale for failing to seek a continuance, it
is not reflected on this silent record. Consequently, appellant has not rebutted the strong
presumption of competent representation by showing that no competent attorney would
have failed to move for a continuance. See Miranda v. State, 993 S.W.2d 323, 329 (Tex.
App.—Austin 1999, no pet.) (providing that trial counsel did not render ineffective
assistance of counsel by failing to move for a continuance or a mistrial when the State
called a “surprise” witness). Moreover, appellant has not demonstrated how he would
have benefitted from the continuance to show he was prejudiced given that he had time to
prepare and that Harmason did not testify until the following day. See Bernal v. State,
930 S.W.2d 636, 641 (Tex. App.—Corpus Christi 1996, pet. ref’d) (providing that a trial
counsel did not provide ineffective assistance of counsel for failing to move for a

14
continuance when the appellant did not demonstrate how he would have benefitted from
the continuance).

Eliciting testimony of appellant’s prior felony convictions and past practice of paying
women for sex
Appellant complains that his trial counsel rendered ineffective assistance by
eliciting testimony on direct examination of witness Al Pye, appellant’s former employer,
regarding appellant’s prior felony convictions and past experiences in paying women for
sex. Appellant claims that trial counsel improperly opened the door to appellant’s own
prior convictions, leaving the false impression that appellant did not have a criminal
record. Because we have concluded that the convictions were admissible, it is possible
that trial counsel’s candor in eliciting the testimony of the convictions was a strategic
attempt to appear open and honest and to lessen the impact of impeachment on the issue.
See Martin, 265 S.W.3d at 445. We cannot conclude that appellant’s trial counsel
rendered ineffective assistance of counsel with regard to the introduction of appellant’s
prior felony convictions. See id.

Appellant also complains his trial counsel opened the door to extraneous-offense
evidence by eliciting testimony from a former co-worker, Calvin Jonson, that he knew
appellant routinely used prostitutes and personally saw appellant pay money for sex on
multiple occasions. Appellant also complains of Pye’s testimony of seeing appellant
having sex with a woman in a moving trailer while he was traveling for work. Appellant
testified to engaging in sex with women in exchange for money and claimed that the
complainant consented to have sex with him in exchange for money. The defensive
strategy that appellant and the complainant engaged in consensual sex, as acknowledged
by appellant in his appellate brief, was the central issue to appellant’s defense. When a
defendant in a prosecution for sexual assault raises a defensive theory of consent, he
places his intent at issue, and extraneous-offense evidence may be admissible if relevant
to that contested issue. See Webb v. State, 995 S.W.2d 295, 301 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (concluding trial counsel did not render ineffective assistance
by failing to object to extraneous-offense rebuttal evidence relevant to the issue of
15
consent in a sexual assault case). Appellant has not demonstrated that trial counsel’s
strategy in contesting whether the charged offense was consensual was unreasonable or
unsound, and therefore has failed in his burden of rebutting the strong presumption that
his trial counsel’s representation fell below an objective standard of reasonableness,
based on prevailing professional norms. See Jenson v. State, 66 S.W.3d 528, 542 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d) (concluding trial counsel did not render
ineffective assistance by opening the door to questioning about prior bad acts, which
amounted to plausible trial strategy).

Alleged failure to offer mitigating evidence or call witnesses at the punishment phase

Appellant complains that his trial counsel should have proffered mitigating
evidence or called witnesses at the punishment phase. Appellant acknowledges that some
character evidence was introduced at the guilt-innocence stage, but asserts this evidence
was “washed away” and subsumed by the other evidence of appellant’s prior felony
convictions, to which he stipulated. Counsel’s failure to present mitigating evidence or a
witness in the punishment phase is irrelevant absent a showing that such evidence was
available and that appellant would have benefitted from the evidence. See King v. State,
649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Appellant has failed to establish that his trial
counsel’s representation was deficient. See id.

We find no merit in any of appellant’s ineffective-assistance-of-counsel points.
Accordingly, we overrule appellant’s fourth issue.

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 The trial court’s judgment is affirmed.

/s/ Kem Thompson Frost
Justice

Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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