      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00536-CR




                                      Dana Pierce, Appellant


                                                  v.


                                   The State of Texas, Appellee




  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
    NO. 02-615-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Dana Lynne Pierce of murder and assessed punishment at sixty

years in prison. See Tex. Pen. Code Ann. § 19.02(b) (West 2004). Pierce does not deny

killing Shawn Rendon or challenge the sufficiency of the evidence to support her conviction, but

complains on appeal that the court erred by allowing the State to invade her attorney-client privilege

on cross-examination by asking her about the frequency of her contact with her attorney and whether

she was being “coached.” She further asserts that the court erred by admitting certain evidence.

Pierce also contends that she was denied effective assistance of counsel. We will affirm the

judgment.
                                         BACKGROUND

               Pierce had known Rendon for eight years and lived with him for about three years.

At the time of the events giving rise to Pierce’s conviction, their relationship was deteriorating and

they were planning to move apart. Pierce blamed Rendon’s mood swings and sexual desires and

practices.

               According to Pierce, Rendon forced her to have anal sex the day before she shot him.

She testified that she had been greatly disturbed by the episode, and was further upset when he forced

her to perform oral sex on him the next morning. Pierce later worked up the courage to confront

Rendon and tell him that she wanted to seek counseling for her feelings about the anal sex. She

testified that Rendon insisted that she not talk about the matter with anyone because it would

eventually be disclosed and harm his reputation. Instead, Pierce recounted, Rendon wanted to have

sex again, this time with various sexual aids. Pierce refused and angered Rendon by repeating that

she wanted to talk to someone about the anal sex episode. Pierce said that she tried to walk away

from him, but he blocked her path, yelled at her, pushed her into a shelf, and swung her into a mirror.

She feared he was going to force her to have sex again. Rendon then pushed her down into the

closet, causing her to break a shoe rack and knock over a shotgun. Pierce picked up the gun and

asked him to let her leave.

               Pierce testified that they struggled and that Rendon grabbed her by the hair. She

thought he was going to kill her. She recounted that, at some point, the gun fired. At this juncture,

Rendon still blocked her path and leaned toward her. Pierce initially did not remember a second




                                                  2
shot, but conceded that it might have happened. When Rendon fell on the floor in the adjacent

kitchen, she said she called 911.

                Peace officers responding to the scene found Rendon dead. They concluded that he

had been shot once while in the bedroom and once while in or near the adjacent kitchen. A blood-

spatter expert testified that the second shot was fired while Rendon was on his knees in the kitchen,

possibly trying to use the telephone. A firearms expert testified that the first shot was fired from

three to eight feet away from Rendon, and the second shot was fired from less than six inches away.

There was evidence of a time lag between the two shots, and evidence that one shell failed to fire

in the bedroom, supporting the State’s theory that Pierce fired once, had a misfire, then fired the third

shot in the kitchen.

                Many other witnesses testified. Numerous witnesses testified that Rendon had abused

Pierce verbally, emotionally, and psychologically, and that Pierce was passive and afraid of Rendon.

Pierce testified that she intended only to hurt Rendon, and shot him because she had no choice.

Pierce’s experts testified that she exhibited classic signs of being abused and that she did not intend

to kill Rendon, only to protect herself.

                The State called several rebuttal witnesses who challenged Pierce’s description of

herself, her capacity to tell the truth, and her description of Rendon as abusive. Some also described

Pierce’s debts rising into the tens of thousands, including a debt to Rendon. Evidence also showed

Pierce was served with a lawsuit on one of those debts only days before she killed Rendon.

                During the guilt-innocence phase of trial, the district court charged the jury on murder

and self-defense, as well as the offenses of sexual assault and aggravated kidnapping, from which

                                                   3
Pierce might have defended herself with deadly force. See Tex. Pen. Code Ann. § 9.32(a)(3)(b)

(West 2003). The jury found her guilty of murder, implicitly rejecting her claim of self-defense. At

the punishment phase, the court instructed the jury regarding sudden passion and community

supervision. The jury expressly did not find that Pierce murdered Rendon under the influence of

sudden passion. The jury assessed sentence at sixty years in prison, vitiating her request that the jury

recommend she be placed on community supervision.


                                           DISCUSSION

               Pierce raises six issues on appeal. She complains that the court allowed the State to

invade the attorney-client privilege on cross-examination by asking her about the frequency of her

contact with her attorney and whether she had been coached. She adds that the court admitted some

evidence that improperly attacked her character for truthfulness and other evidence that concerned

the irrelevant subjects of her interest in pornography and of Williamson County’s history of rarely

placing murderers on community supervision. She also complains that her counsel rendered

ineffective assistance.


Invasion of attorney-client privilege

               By her first issue, Pierce contends that the court erred by overruling her objections

to questions by the State that she contends invaded the attorney-client privilege. She complains

about a series of questions by the State that she argues implied that her attorneys coached her

testimony both before and during trial. While attempting to impeach Pierce using prior statements

inconsistent with her testimony, the State asked, “Over the past several months, Ms. Pierce, how

                                                   4
much time have you spent with your attorneys?” After the court overruled Pierce’s objection to that

question, the State asked fourteen more questions (only one of which was objected to) about the

frequency, duration, location, and recency of Pierce’s contacts with her attorney, culminating with

the State asking if Pierce and her attorney had established a means of communicating about the year

in which something occurred: “So, if people in the audience have observed that it appeared that if

the year was 2000, Ms. Davis-Jones made some sort of a circle with her hand if the year was 2001

there was some pointing that went on—.” Pierce interrupted and denied being coached, saying that

she figured out the year without signals from her attorney.

               The rule establishing attorney-client privilege provides, in relevant part, that a client

may refuse to disclose and may prevent the disclosure of confidential communications made for the

purpose of facilitating the rendition of professional legal services to the client among the client, her

representatives, her lawyer, and her lawyer’s representatives. See Tex. R. Evid. 503(b)(1). A client

in a criminal case also may prevent her lawyer or her lawyer’s representatives from disclosing any

other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the

attorney-client relationship. See id. 503(b)(2). The purpose of the attorney-client privilege is to

promote communication between attorney and client unrestrained by fear that these confidences may

later be revealed. Austin v. State, 934 S.W.2d 672, 673 (Tex. Crim. App. 1996). Statements and

advice of the attorney are just as protected as the communications of the client. Id. But the

lawyer-client privilege is only an exclusionary rule of evidence, not a principle of constitutional

proportions. Strong v. State, 773 S.W.2d 543, 547 (Tex. Crim. App. 1989). Thus, if the trial court

erred, we may reverse only if the error affected substantial rights. See Tex. R. App. P. 44.2(b).

                                                   5
               In this case, no error was committed. We find no authority for the proposition that

the State cannot inquire whether, how often, how long, and how recently Pierce had met with her

attorneys. Further, in the question about hand signals, the State was asking about hand signals

purportedly observed in open court while Pierce was on the stand; it did not call for disclosure of

confidential communications.     Pierce’s answer, moreover, did not disclose any confidential

communications because she flatly denied that her attorney made any hand gestures, did not disclose

any underlying communications, and did not imply that she had participated in any discussions

intended to shape her testimony. We overrule her first issue.


Evidence of character for truthfulness

               By her second issue, Pierce complains that the district court erred by admitting

evidence of specific instances of conduct regarding her character for truthfulness. Although Pierce

mentions numerous instances in which the State asked Pierce about specific instances of conduct,

these form merely the background of her appellate complaint because she did not object to any

such questions posed to her. Instead, she focuses on testimony by Jody Willis, a one-time friend and

co-worker. Pierce objected when the State asked Willis, “At some point did you come to form an

opinion about the Defendant’s capacity for truthfulness?” Pierce objected:


       Counsel knows the proper way to impeach a person’s reputation, and this is clearly
       not it. All this testimony is duplicative. The Defendant has testified and now Miss
       —Ms. McCown is just going over what was repeated to people. Now this is just a
       way to smear her character, and we’re going to hear more of it before the day is out,
       I fear.




                                                 6
The State argued at the bench that Pierce had put her truth-telling capacity at issue. Without ruling,

the Court responded, “Well, if you’ll stick to areas where this witness can contradict previous

testimony of the Defendant. As I understand it, however, reputation evidence is very formulaic and

specific instances are not permissible.” The State argued that opinion evidence is permissible if a

defendant puts her truth-telling ability at issue by testifying. The court replied, “Okay. Let’s stick

to those two areas.” The State did not repeat its request for Willis’s opinion on Pierce’s capacity for

truthfulness, but prompted Willis to discuss how her friendship with Pierce dissipated as Willis came

to disbelieve some of Pierce’s representations.

               We review the admission of evidence for an abuse of discretion, and can reverse only

if the court’s ruling is so clearly wrong that it lies outside the zone of reasonable disagreement. See

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh’g). A witness’s

character for truthfulness cannot be impeached by specific instances of conduct other than

convictions for crimes. See Tex. R. Evid. 608(b). To preserve error, an appellant must show that

she made the complaint to the trial court by timely objection that stated the grounds for ruling with

sufficient specificity to alert the trial court to the basis of the complaint. See Tex. R. App. P.

33.1(a)(1). An appellant must also show that the trial court either ruled on the objection expressly

or implicitly or that the appellant objected to the refusal to rule. Id. 33.1(a)(2). A complaint on

appeal must comport with the trial objection or nothing is presented for review. See Rezac v. State,

782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Bunton v. State, 136 S.W.3d 355, 364 (Tex.

App.—Austin 2004, pet. ref’d).




                                                  7
               Pierce did not complain at trial that the evidence was inadmissible under Rule 608.

Pierce complained that the State was not impeaching her properly, but the only specific basis stated

was duplicativeness. This objection did not alert the court to her appellate complaint that the

questions improperly concern specific instances of conduct regarding her character for truthfulness.

Further, the court did not expressly rule on the objection; the court discussed the objection and

provided guidance to the State regarding the course of questioning. Finally, the State did not

reiterate the question about Willis’s opinion on Pierce’s capacity for truthfulness after the objection

and discussion, and Willis did not answer it. We find no reversible error preserved on this issue.


Evidence of interest in pornography

               By her third issue, Pierce contends that the district court erred by admitting evidence

regarding her alleged interest in pornography. She complains of the admission of an e-mail from

Pierce to Rendon entitled “Yummy Pics.” Attached were several pictures explicitly showing oral,

vaginal, and anal sex involving persons other than Pierce and Rendon. The e-mail was dated April

30, 2001—over a year before Pierce killed Rendon on May 15, 2002.

               Pierce contends that these photographs were irrelevant and that any relevance was

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 401, 403. Pierce

admitted in her direct testimony that she forwarded sexually explicit pictures to Rendon via e-mail.

She also described a sex life with him that grew more experimental, rougher, unpleasant, and

nonconsensual. She testified that she forwarded pornographic pictures to Rendon only if she

inadvertently found them in the computer after his internet explorations. She argues that the images



                                                  8
did not make any contested fact more or less probable. She contends that the fact that she forwarded

the photos does not mean that she looked at them, much less enjoyed them. She argues that the only

purpose was the highly prejudicial intent to portray her as sexually depraved and a liar.

               The State responds that it offered the message to counteract the impression Pierce

created during her testimony that she was an unwilling participant in various sexual acts with

Rendon. The State argues that her sending the images to Rendon shows that she was interested in

the acts depicted therein.

               In weighing the probative value of offered evidence under Rule 403, the district court

considers factors including (1) the evidence’s inherent probative value; (2) its potential to impress

the jury in some irrational but indelible way; (3) the amount of time the proponent needs to develop

the evidence; and (4) the proponent’s need for the evidence. Wheeler v. State, 67 S.W.3d 879, 888

(Tex. Crim. App. 2002). Even relevant evidence must be excluded when there is a clear disparity

between the degree of prejudice of the offered evidence and its probative value. Jones v. State, 944

S.W.2d 642, 653 (Tex. Crim. App. 1996). We review the court’s conclusion for an abuse of

discretion. Montgomery, 810 S.W.2d at 390.

               We conclude that the district court did not abuse its discretion by finding this

evidence relevant and admissible. Pierce presented a defensive theory that she was subject to a

campaign of increasing psychological domination and sexual deviancy orchestrated by Rendon. This

theory formed the background for her contention that he raped her anally the day before the shooting,

and supported her theory of the dispute she had with Rendon and provided the basis for her fears for

her safety on the day of the shooting. Although forwarding the photos did not necessarily show

                                                 9
Pierce’s approval of the activities depicted, the jury could infer that the e-mail undermines her

general defensive theory that she was an unwilling participant in any of the activities—particularly

when the photos are viewed in conjunction with the title of her e-mail: “Yummy Pics.” We

emphasize that sending these photos does not prove acquiescence to being raped or to participation

in any of the other specific activities she says she did not consent to performing. But the district

court did not abuse its discretion by concluding that the e-mail and photos relate to Pierce’s depiction

of the level of her voluntary involvement in the general course of their sexual activities and their

relationship, which also bears on her version of events on the day of the shooting—including

whether they had a dispute about these activities while she feared for her safety.

                 We further conclude that the district court did not abuse its discretion by deciding that

the probative value of the evidence was not substantially outweighed by its potential unfair

prejudicial effect. Although the photographs might have been shocking or unpleasant to view for

some of the jurors, the acts depicted therein are less unusual and violent than some of the activities

in which Pierce had testified she was forced to participate; this context diminishes the likelihood that

the photos would influence the jurors in an irrational, indelible way. This evidence did not take

much time to introduce, and the State needed the evidence to counter Pierce’s testimony that she was

an unwilling participant in activities like those depicted in the photos. The district court reasonably

could have concluded that the risk of unfair prejudice did not substantially outweigh the probative

value of this evidence. We conclude that the district court did not abuse its discretion by admitting

this evidence.




                                                    10
Evidence about community supervision in Williamson County

                By her fourth issue, Pierce contends that the court erred by admitting evidence

concerning Williamson County’s history of rarely placing convicted murderers on community

supervision. At the punishment phase, Pierce called Rick Zinsmeyer, the director of the Williamson

County Community Supervision and Corrections Department, to discuss how community

supervision worked. On cross-examination, the State asked him if any murderers convicted in

Williamson County were currently on community supervision; he responded, “I don’t think so, but

I didn’t check. I just found out I was going to be here 20 minutes ago. But we’ve had some in the

past.” The State then asked him to talk about particular people who had been placed on probation

for murder; after an objection, the State asked whether he recalled someone being placed on

probation for a shotgun killing. Pierce again objected to the reference to a specific case, arguing that

it was not relevant to Pierce. The court overruled the objection, and Zinsmeyer testified as follows:

“I don’t know what kind of firearm was used. And the one that jumps out at me was in 1977, and

I—I feel like there’s been some—I just don’t recall, but I remember that because I supervised the

case. And since I don’t supervise cases anymore, I just don’t recall.”

                The criteria for making relevancy determinations at the punishment phase differ

because the use of evidence differs. At the punishment phase, there are fewer defined elements to

be found; the court of criminal appeals wrote, “Because the material issue at punishment is so

indistinct, relevancy of proffered evidence cannot be determined by deductive processes.” Sunbury

v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002). Accordingly, “determining what evidence

should be admitted at the punishment phase of a non-capital felony offense is a function of policy

                                                  11
rather than a question of logical relevance.” Id. Some of the policy considerations include giving

complete information for the jury to tailor an appropriate sentence for a defendant; the policy of

optional completeness; and admitting the truth in sentencing. Id. Although the criteria the trial court

uses differ, we review the decision for an abuse of discretion. Mitchell v. State, 931 S.W.2d 950,

953 (Tex. Crim. App. 1996).

               The State contends that Pierce failed to preserve this error, arguing that the objection

overruled at trial was to a narrow question concerning a shotgun murderer getting probation, but the

complaint on appeal is to evidence on the broader issue of murderers getting probation. In context,

however, Pierce’s objection was to any inquiry into other cases. She first objected to a broad

question about murderers getting probation; when the State rephrased—without the court ruling on

the objection—and asked specifically about probation based on a “shotgun killing,” Pierce again

objected that “[t]his is just another way around here. This is a reference to a specific case. It’s not

relevant to Dana Pierce.” We find the asserted error adequately preserved for our review.

               That Zinsmeyer could recall only one other murderer who used a shotgun receiving

probation has little relevance to what sentence Pierce should receive. The testimony does not prove,

as the State contends, that the probation department could not adequately supervise a convicted

murderer; rather, it shows that the department is not often called upon to do so. But neither did the

testimony, as Pierce contends, invite the jury to speculate about how other murderers were sentenced

in Williamson County without providing any information about the other cases; it showed that

probation for murderers was rare. This evidence is at most indirect evidence of the appropriateness

of probation, which the court can admit if the evidence will not confuse the jury. See Ortiz v. State,

                                                  12
834 S.W.2d 343, 348 (Tex. Crim. App. 1992). But this evidence does not explain whether other

murderers who used shotguns did not get probation, whether this was appropriate, or whether or how

those cases should inform the jury regarding their decision on Pierce.

               Any error in the admission of this testimony did not harm Pierce. Because admission

of this evidence is not constitutional error, we cannot reverse unless we find that the error affected

the substantial rights of the appellant. See Tex. R. App. P. 44.2(b)(2). Substantial rights are not

affected by the erroneous admission of evidence “if the appellate court, after examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”

Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998)). There was ample other evidence relevant to punishment. There

were more than two weeks of evidence at the guilt-innocence phase that covered the nature of the

crime as well as Pierce’s conduct and motivations. At the punishment phase, the State called

Rendon’s mother to discuss the effect of the loss of her son. Pierce called two witnesses to discuss

probation and a third to talk about her friendship with Pierce. The fact that the sixty-year sentence

far exceeds the maximum ten-year length for a sentence that could be probated indicates strongly that

the jury based its sentence, and the implicit decision not to recommend community supervision, on

evidence other than Zinsmeyer’s comments. We conclude that the information that community

supervision for murderers was rare in Williamson County had no effect on the sentence.


Ineffective assistance of counsel

               By her fifth and sixth issues on appeal, Pierce argues that she was denied effective

assistance of counsel in violation of both the state and federal constitutions. Pierce complains that

                                                 13
her counsel was unprepared to deal with the various ways in which her credibility would be attacked.

She argues that these credibility challenges crippled her assertion of self-defense.

                The federal and state constitutions guarantee the right to the reasonably effective

assistance of counsel in a criminal proceeding. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To

show ineffective assistance of counsel, a defendant must show that (1) his trial counsel’s

performance was deficient, in that counsel made such serious errors he was not functioning

effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that

the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 689 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland standard for

state constitutional violations).

                A strong presumption exists that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at

694. The strong presumption is that counsel’s conduct fell within the wide range of reasonable

professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The

challenged conduct will not constitute deficient performance unless the conduct was so outrageous

that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2002).

                Review of a defendant’s claim of ineffective assistance must be highly deferential to

trial counsel. Thompson, 9 S.W.3d at 813. We do not speculate about trial counsel’s strategy.

Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin 2000, no pet.). Rather, in the absence of

direct evidence in the record of counsel’s reasons for the challenged conduct, an appellate court will



                                                 14
assume a strategic motivation if any can be imagined. Garcia, 57 S.W.3d at 440. The defendant

must show “a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Thompson, 9 S.W.3d at 812. A reasonable probability is

one that undermines confidence in the outcome. Id. The record must affirmatively demonstrate the

alleged ineffectiveness and, in most cases, the trial record alone will be insufficient. Thompson, 9

S.W.3d at 813. But claims of ineffective assistance can be successful if the appellate record is

sufficiently developed. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

               Pierce complains about several instances in which her counsel’s performance was

deficient while she was being examined; her complaints depend on the trial record alone because

there was no hearing on the motion for new trial. She complains about the failure to object to

improper questions while the State was cross-examining her; these questions concerned her financial

status and relocation plans. She also complains that the State adduced responses from her that set

up “straw men” that the State could then impeach with prior inconsistent statements; she gives the

example of the State adducing her denial that she ever told anyone that she had a trust fund or that

her grandfather gave her $100,000, which the State then rebutted with testimony from witnesses who

said she had made those statements.

               Pierce also complains about counsel’s performance while other witnesses were being

examined. She assails her counsel’s failure to object to her landlord’s testimony about instances in

which Pierce lied about making arrangements to pay her late rent, Willis’s testimony about details

of Pierce’s scheme to collect disability payments and other lies, and other witnesses’ testimony about

lies Pierce told them. She also complains that her counsel failed to object to the State’s failure to



                                                 15
lay the proper predicate for impeachment of her claims of prior sexual abuse and the State’s violation

of a motion in limine regarding Pierce’s arrest for theft by check. She attacks her counsel’s failure

to object to the elicitation of testimony that she had temper tantrums, that she requested disability

leave because she did not like her job, and that Pierce’s ex-husband was not surprised to hear that

she shot Rendon. Pierce also argues that her counsel was ineffective for eliciting testimony from a

State’s witness regarding Pierce’s statement that she could not receive a fair trial in Williamson

County.

               Finally, Pierce contends that her counsel was ineffective during argument at the

punishment phase for failing to remind the jury of the sudden passion instruction and for appealing

to the jury to give her probation so as not to separate her from her children. Pierce found the latter

particularly ineffective because the State then argued that invoking the children as a reason for

decision was essentially shameful and exploitative; she points to the fact that jurors wanted to meet

with prosecutors, but not the defense, after the trial as proof that her counsel’s techniques alienated

the jury so much that she was deprived of the effective assistance of counsel.

               Pierce’s complaints about her counsel not objecting to various evidence about her

monetary difficulties fail because that evidence was admissible to show motive under the State’s

alternative theory of events. See Tex. R. App. P. 404(b). The evidence about her debts could

support a view of her motive—that Pierce was desperate to prevent Rendon from leaving because

she owed him and others so much money; indeed, evidence showed that she owed him between

$5,000 and $20,000 and was served two days before the shooting with a civil petition seeking

repayment of another debt. Thus, the evidence rebuts Pierce’s self-defense claim by showing a



                                                  16
different motive. Pierce’s counsel was not ineffective for failing to object to admissible evidence.

See Ortiz v. State, 93 S.W.3d 79, 93-95 (Tex. Crim. App. 2002).

               Similarly, evidence rebutting her version of events surrounding her leave of absence

from work was relevant to motive. She testified that she took the leave of absence because of the

combination of effects from childhood sexual abuse and her relationship with Rendon. Evidence

that she concocted the symptoms that substantiated her obtaining the leave in order to get paid for

work and not get laid off undermine her claim that she was a psychologically battered woman who

shot Rendon in self-defense. Her counsel was not ineffective for failing to object to this admissible

evidence. See id.

               The testimony that Pierce was arrested for theft by check came in through a peace

officer’s testimony about the circumstances surrounding Pierce’s statement to law enforcement. The

State asked if Pierce was arrested after giving her second statement. The officer responded, “Yes,

she was. She was arrested for a theft-by-check warrant that she had outstanding.” The State then

asked if the officer obtained a warrant for murder, and the officer confirmed that he did. Shortly

thereafter, Pierce’s counsel asked to approach the bench and noted that the officer’s testimony about

the theft-by-check charge violated a motion in limine; she stated her intention to elicit evidence that

the charge had been dismissed. On cross-examination, the officer admitted that he did not know that

the charge had been dismissed. This method of dealing with the mention of the extraneous charge

may have de-emphasized its importance to the jury. See Castoreno v. State, 932 S.W.2d 597, 603

(Tex. App.—San Antonio 1996, pet. ref’d). We do not find that Pierce’s counsel was ineffective for

failing to object in the presence of the jury to the initial mention of the charge.



                                                  17
               Nor was Pierce’s counsel ineffective for failing to object to testimony by her ex-

husband. By raising a defensive theory, the defendant opens the door for the State to offer

rebuttal testimony regarding an extraneous offense if the extraneous offense has common

characteristics with the offense for which the defendant was on trial. See Bell v. State, 620 S.W.2d

116, 126 (Tex. Crim. App. 1980) (op. on reh’g). Pierce’s ex-husband testified about his lack of

surprise when hearing that Pierce shot Rendon shortly before he was to leave for work. He testified

that she often started arguments shortly before he was to leave for work and that she sometimes

threw dishes at him when they argued. This tends to rebut the characterization of Pierce by other

witnesses as a quiet, undemonstrative, and passive person, and shows a different state of mind and

intent for the argument than she portrayed herself as having. Counsel was not ineffective for failing

to object to this admissible evidence. See Ortiz, 93 S.W.3d at 93-95.

               The record does not demonstrate that Pierce’s counsel was ineffective for failing to

argue for a sudden-passion finding at the punishment phase. The instruction was given to the jury.

The record does not show whether the failure to argue the issue was a lapse or an intentional

omission. Pierce’s counsel focused on persuading the jury to recommend probation, noting her

compliance with pre-trial supervision. Given the jury’s rejection of self-defense at guilt-innocence,

counsel may have chosen to attempt to create sympathy for Pierce in spite of her action rather than

ask the jury to “excuse” her action. The failure of that strategy does not render counsel’s

performance constitutionally deficient. On this record, we cannot say that the strategy was

unreasonable. See Garcia, 57 S.W.3d at 440.

               Pierce’s counsel represented her actively before and during the trial, filing motions,

questioning witnesses, and making objections. There was no evidence developed at a motion for

                                                 18
new trial about possible trial strategies. The acts and omissions of which Pierce complains do not

show deficient performance by her counsel on this record.


                                         CONCLUSION

                Having resolved Pierce’s issues in favor of the judgment, we affirm the conviction

and sentence.




                                             Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: August 3, 2005

Do Not Publish




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