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



### M E M O R A N D U M O P I N I O N
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 e vidence relating to a civil law suit filed by the complainant in an unrelated incident ; (2) admitting testimony from the State’s rebuttal witness; and (3) overruling appel lant’s objections to the State’s2

characterization of him as a sex ual predator during the State’s closing argument in the punishment phase . We affirm.

F ACTUAL AND P ROCEDURAL B ACKGROUND 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 an d 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 fr ont 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 hi m 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 accompanied3

the owner to th at 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 nurs e about the sexual assault

. Semen s amples taken during a sexual

- assault exami nation 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 intercours e 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 a ppellant , he was reflexively trying to wave the complainant off of him , but he did not know if he actually made contact

. He denied lo cking 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. T he enhancement paragraphs were found to be true . Th e jury assessed appellant’s punishment at seventy years’ confinement.
I SSUES AND A NALYSIS Did the trial court err in excluding evidence relating to the complainant’s civil law suit ? 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 to4

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 law suit, h e 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 childre n 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 evi dence had no relevance in the criminal case

. Ap p ellant 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 ap pellant could ask questions on cross

- examination abo ut other sources of income availabl e 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 st andard, the trial court does not abuse its discretion if the ruling was within the zone of reasonab le 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).
Whethe r 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. Stat e , 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 relevant5

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 again st 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 complain ant to be biased against appella nt at the criminal trial

. See id. Appellant was free to present other evidence of the c omplainant’s purported financial hardship. The trial court did not abuse its discretion in sustain ing the State’s objection to introduction of evidence relating to the complainant’s civil suit against a railroad company because it was not relevan t and did not give rise to an inference of bias

. See id. ; Tex. R. Evid. 40 2, 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 erre d in admitting the testimony of rebuttal witness , Donald Lee Harm a son , 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 man6

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 com plainant from the locke d 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 denie d knowledge about the complainant’s personal relationships. When the State sought to call Harmason t o the stand, appellant objected , asserting that Harmason had not been identified on the witness list. Appellant expressed his understanding that Harmason s erved as the State’s rebuttal witness to rebut the owner’s testimony. When appellant objected to Harmason testifying because the defense had no notice , t he State argued that it did not know that Harmason’s testimony would be important until after the owne r had testified. The trial court ov erruled 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.

— Hou ston [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 unfor e seen testimony. See Marx v. State , 953 S.W.2d 321, 3 38 (Tex. App.

— Austin 1997), aff’d , 987 S.W.2d 577 (Tex. Crim. App. 1999).7

We consider two fa cto rs 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 appella nt 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 de termine whether the State acted in bad faith: (1) whether the defense demonstrate s 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 pr ovided the defense with informat ion 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 th e defense. To the contrary, the record reflects that Harmason did not testif y 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 t he 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 surprise d from Harmason’s testimony because the testimony was cumulative of similar evidence already before the jury ; t he record reflects numerous witnesses testified that a friend of the8

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 laundr omat

. 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 , appe llant has failed to preserve this issue for appellate review

. Because appellant did not voice this objection or mov e 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 strik e 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 sexu al 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 . T he 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

rema rks : [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 easie r if sexual predators had a tattoo on their forehead[s] that let you know what is going on in their head9

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
w ant

— that people want them to play and not let them know abo ut their secret desires and fan tasies 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 prostitu tes 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 o f four general areas: (1) summa tion 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 wom en 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 incid ent 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 characterizatio n 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’s10

account of the incident and appellant’s own testimony that the sexual encounter on the concrete floor of a public busin ess 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 t his claim, appellant cites to the following alleged deficiencies by his trial counsel : (1) fail ure to obtain a ruling on his motion to allow appellant to testify free from impeachment of other convictions; (2) fail ure to generate a record of evidence relating to the complainant’s civil law suit; (3) fail ure to request a contin uance 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

- offen se evidence; and (5) fail ure to introduce mitigati ng 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. C ONST

. amend. VI; T EX

. C ONST

. art . I, § 10; T EX

. C ODE C RIM

. P ROC

. 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 , 94 5 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 evide nce. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).11

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 actio ns 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 fo r 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.
F ailure 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 c an 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 whe n 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 ref l e cted in the record, Al Pye testified that12

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
appe llant 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 , a s 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 Te xas 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 el apsed 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 admissib le. 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 insta nt 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,
pe t. ref’d)

. Because appellant was convicted of crime s involving moral turpitude, those13

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); Mar tin , 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 conviction s w as 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 couns el was deficient

. F ailure 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 requir es 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 requir ed 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 railroad14

company on beh alf 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 include s 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. I d. 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 c ontinuance upon learning of an undisclosed rebuttal witness A ppellant 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 up on learning of Harmson’s testimony. Whatever counsel’s rationale for failing to seek a continuance, it is not reflected on this silen t record. Consequently, a ppellant 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.

— Austi n 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, a ppellant has not demonstrated how he would have bene fitted 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 a15

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

. Eliciting testimony of appellant’s prior felony convictions and pas t 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 exp erience s in paying women for

sex. Appellant c laims that trial counsel improperly opened the door to appellant’s own prior convictions , leaving the false impression that appellant did not have a criminal

re cord. Because we have concluded that the convictions were admissible, it is possible that trial counsel’s ca ndor 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 cou nsel opened the door to extraneous

- offense evidence by elicit ing testimony from a former co
- worker, Calvin Jonson , that he knew appellant routinely used prostitutes and p erso nally saw appellant pay money f or sex on multiple occasions. Appellant also compl ains of Pye’s testimony of seeing appellant having sex with a wom a n 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 f or 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 p et.) ( concluding trial counsel did not render ineffective assistance by failing to object to extraneous

- offense rebuttal evidence relevant to the issue of16

consent in a sexual assault case). Appellant has not demonstrated that trial counsel’s strategy in c ontesting 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 o n prevailing professional norms

. See Jenson v. State , 66 S.W.3d 528, 54 2 (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

amoun ted to plausible trial strategy)

. Alleged f ail ure 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. A ppe llant acknowledges that some

c h a racter 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 failu re 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, w e overrule appellant’s fourth issue.17

The trial court’s judg ment is affirmed.

/s/ Kem Thompson Frost Justice

Panel consists of Justices Frost, Brown, and Christopher. Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).