                                      NO. 07-10-0461-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JULY 25, 2011
                                ________________________

                             DEMETRA DESHONNE MITCHELL,

                                                                  Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                  Appellee
                                _________________________

           FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

              NO. 10-04-7058; HONORABLE PAT PHELAN, PRESIDING
                          __________________________

                                  Memorandum Opinion
                               __________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

      Demetra Deshonne Mitchell was convicted after a jury trial of possession of a

controlled substance (cocaine) with intent to deliver in a drug free zone. In seeking to

reverse that conviction, she contends 1) the trial court erred in admitting extraneous

offenses after a witness had allegedly opened the door to character evidence by

describing appellant as a “working class citizen,” 2) the trial court erred in refusing to

admit evidence of threats allegedly made by the State’s main witness against other

      1
       John T. Boyd, Senior Justice, sitting by assignment.
witnesses in the case, and 3) appellant received ineffective assistance of counsel when

her attorney failed to recognize that the door had been opened to the admission of the

aforementioned extraneous offenses and failed to request a limiting instruction as to

that evidence. We affirm the judgment.

         Background

         On October 27, 2009, Vincentia Johnson, appellant’s cousin, agreed to assist

Officer Shaun Wilson in purchasing crack cocaine from appellant in exchange for his

help in reducing or dismissing a drug charge pending against Vincentia. She called

appellant to confirm that appellant had cocaine at her residence.                          Officers then

searched Vincentia and her car, and she was outfitted with an audio recording device.

She was also given $120 to purchase a “bill,” which is street language for $100 of

drugs.       Vincentia was followed by officers to appellant’s residence where she was

observed entering it. When she came out, she had cocaine and $20 on her.

         Issue 1 – Admission of Character Evidence

         In her first issue, appellant contends that the use of the phrase “working class

citizen” to describe her did not open the door to admission by the State of evidence

impugning her character.2           The trial court disagreed, which resulted in the State

proffering evidence of her involvement in various extraneous offenses. We overrule the

issue.




         2
          The evidence of extraneous offenses admitted by the State consisted of testimony that appellant
had been arrested twelve times. Those arrests related to the offenses of injury to a child, assault causing
bodily injury, aggravated assault causing serious bodily injury, multiple thefts, multiple drug possessions,
and assault. Appellant had also been in the penitentiary for seven years and had her probation revoked.


                                                     2
       The phrase in question was used by a defense witness, Jakiki Garrett, who was

living with appellant at the time of the offense and being examined by defense counsel.

Its use arose during the following exchange:

       Q. During the time you stayed with [appellant], did you ever see drugs or
       a scale?

       A. No.

       Q. If you would have seen drugs, what would you have done?

       A. I couldn’t have been around it.

       Q. Why not?

       A. I just - - I just got out of trouble for that, you know. And, you know, to
       my common knowledge, you know, I was trying to change myself, and I
       was working.

             I seen her go to work every day. We had been at the house every
       day after work. She let me in. I took my showers, or whatever. She
       drove back and forth to work. As far as I’m concerned, she was a
       working-class citizen.

       Q. She was what?

       A. She was a working-class citizen.

(Emphasis added).

       We review the trial court’s decision to admit or exclude evidence under the

standard of abused discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App.

2005). Thus, we cannot hold that any error occurred unless the decision fell outside the

zone of reasonable disagreement. Jordan v. State, 271 S.W.3d 850, 855 (Tex. App.–

Amarillo 2008, pet. ref’d).

       Next, we note that a party opens the door to otherwise inadmissible evidence by

leaving a false impression with a jury that invites the other side to respond. Hayden v.



                                             3
State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). According to appellant, referring to

her as “a working class citizen” was not a comment upon her good character but rather

conveyed the impression that she simply was someone who had a job and maintained

the social status of “working class.”

        Admittedly, the statement is subject to interpretation. One such interpretation

was that mentioned by appellant.3 Another, was the allusion to her being an honest,

law abiding, and hard-working person rather than a drug dealer. Moreover, before the

comment was made, the witness had testified about how appellant was his “friend,” how

he had recently been released from jail, “had nowhere to go,” and how appellant “took

[him] in” while he was “getting on [his] feet.”            He had also attempted to exculpate

appellant and discredit the testimony of Vincentia by denying that drugs and drug

paraphernalia were present when she was there.                  Given these circumstances, one

could reasonably infer that the witness was attempting to help his friend by portraying

appellant as someone of good character. At least, interpreting the use of the phrase in

such a manner would fall within the zone of reasonable disagreement. Therefore, the

trial court did not err in concluding that appellant’s character for being honest and law-

abiding had been placed in debate.4 See Bass v. State, 270 S.W.3d 557, 563 (Tex.

Crim. App. 2008) (holding that argument that the defendant was a pastor and minister

and “the real deal and the genuine article” opened the door to extraneous offenses);

Harrison v. State, 241 S.W.3d 23, 27-28 (Tex. Crim. App. 2007) (holding that testimony



        3
       Garrett testified later that he called appellant a “working class citizen” because he had “always
known her to have a job.”
        4
        To the extent that appellant also argues that the evidence admitted to rebut the allegedly false
impression was excessive, no objection expressing that complaint was uttered at trial. So, it was not

                                                   4
that the defendant was a “good” and “sweet” boy opened the door to extraneous

offenses); Fuentes v. State, 991 S.W.2d 267, 280 (Tex. Crim. App. 1999) (holding that

answers to questions as to whether the witness had ever seen a person misbehave or

cause trouble clearly asked about character).

         Issue 2 – Evidence of Threats

         Via his second issue, appellant contends that the trial court should have allowed

her to proffer evidence illustrating that Vincentia threatened to assault any witness

testifying on appellant’s behalf. The evidence allegedly affected Vincentia’s credibility

and, therefore, was admissible. We overrule the issue.

         The possible animus, motive, ill will, or bias of a prosecution witness is not

irrelevant, and the defendant is entitled, subject to reasonable restrictions, to show any

relevant fact that might tend to establish the same. Billodeau v. State, 277 S.W.3d 34,

42-43 (Tex. Crim. App. 2009);5 TEX. R. EVID. 613(b). Yet, whether this rule obligated the

trial court to admit evidence of the threat is not a matter we need to decide. This is so

because appellant was not harmed by exclusion, even if the trial court’s decision was

wrong.

         That which appellant sought to do with the evidence was done via other means.

Indeed, we are told by appellant that Vincentia’s purported threat established a bias

favoring the State. And, that bias arose from her desire to forego incarceration for a


preserved for review. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (holding that the
grounds asserted on appeal must comport with those mentioned at trial).
         5
         Appellant relies upon Bilodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009) in support of her
argument that the evidence is admissible. However, that case involved a threat made by a child
complainant prior to a molestation trial to falsely accuse two neighbors of molestation. Id. at 38. Those
facts are not analogous to those before us.



                                                   5
separate offense and otherwise remain free to care for her newly born child.

Apparently, the State or police had struck a deal with her to forego prosecution if she

became a confidential informant. This, undoubtedly, was an offer she thought desirable

since she had already lost one child while she served a previous stint in prison. The

deal allowed her to care for the new one.       Moreover, all this information, save for

evidence of the threat, was before the jury. So, appellant not only had but also pursued

the opportunity to discredit Vincentia by showing that she had a reason for working with

and testifying favorably for the State.

       Issue 3 – Ineffective Assistance of Counsel

       Finally, appellant contends that her counsel was ineffective by eliciting testimony

that opened the door to the character evidence addressed under issue one and in failing

to request a limiting instruction with respect to that evidence. We overrule the issue.

       To prove a claim of ineffective assistance, one must establish not only that

counsel’s performance was deficient but that she suffered prejudice as a result of it.

Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). In determining

whether that burden has been met, we presume (until rebutted) that counsel had

legitimate strategies for his actions, Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.

App. 2007), and that presumption cannot generally be overcome absent evidence in the

record of the attorney’s reasons for his conduct. Ex parte Niswanger, 335 S.W.3d 611,

615 (Tex. Crim. App. 2011).

       Initially, we note that appellant’s question to the witness related to what the

witness would have done if he had observed drugs in appellant’s house. It was not

designed on its face to elicit the response that appellant was a “working class citizen.”



                                            6
See Harrison v. State, 241 S.W.3d at 27 (noting that defendant’s counsel did not

intentionally elicit testimony that defendant was a “good” and “sweet” person). Indeed, it

can be said that by asking the question, “she was what?” counsel was surprised by the

witness’ statement. We, therefore, cannot say that he performed deficiently by asking

the question he did or by seeking to open the door to adverse character evidence.

       We further note that the record fails to reveal why counsel did not ask that the

witness’ comment be struck or why he did not request a limiting instruction of any type

viz the jury’s consideration of the evidence of extraneous offenses. As for the former, it

may be that counsel initially viewed the purportedly unexpected comment as favoring

his client. As for the latter accusation of deficient conduct, counsel may have opted to

remain silent to avoid placing further attention upon the evidence in question. Hill v.

State, 303 S.W.3d 863, 879 (Tex. App.–Fort Worth 2009, pet. ref’d) (stating that counsel

is not necessarily deficient in failing to request an instruction with respect to extraneous

offenses because it is possible he did not want to draw further attention to those

offenses). Yet, these explanations for counsel’s conduct are mere guesses since the

record omits evidence as to his motives or strategies. And, because the latter could be

legitimate, we cannot say that appellant proved a case of ineffective assistance.

       The judgment is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




                                             7
