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 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 
2

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 
5

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 
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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). 
7

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 
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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). 
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 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 
12

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 
13

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 
14

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 
15

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 
16

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.
17

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).