                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00032-CR

ANTHONY HEMPHILL,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                          From the 21st District Court
                            Burleson County, Texas
                             Trial Court No. 13,533


                         MEMORANDUM OPINION


      A jury found Anthony Hemphill guilty of aggravated robbery and assessed

punishments of fifty-five years’ imprisonment and a $10,000 fine. Raising two issues,

Hemphill appeals. We will affirm.

      Hemphill was charged with robbing a store clerk at gunpoint at a local

convenience store in Somerville. He confessed to police and did not deny committing

the robbery at trial, instead contending that he committed the robbery under duress.

Hemphill testified that Boo Powell (whom Hemphill associated with) and his “gang”
threatened to “jump” (kill or seriously injure) him if he did not carry out the robbery.1

Hemphill’s videotaped statement and confession states in part:

               The guys that I hung around with said that if I did stuff that I could
        get into the gang. If I sold drugs for them, like I’d sell $150 worth and I
        could keep $50, so I did because I thought that it would be cool.

                Now, on CEFCO it didn’t matter how much money I got, I had to
        give it to them and I would be taken care of later. If I didn’t get any
        money and give it to them, then they were going to jump me. After doing
        the robbery, I never got any of the money that I was supposed to.
                …
                When I got talked into doing this, I was over at Oliver Phillips’
        house. Jeremy Vela, Boo Powell and Oliver were all there.
                …
                Let me kind of start from the first. Me and Boo was talking about it
        earlier that day. He came to my house and was chilling with my brother.
        My brother didn’t know anything about the robbery. Boo said, if you’re
        going to do this, you got to get pumped. You got to get pumped for it.
        He said, rob the store and give me the money. Boo likes to gamble so we
        went out to the country to some of his buddies family and chilled and
        drunk beer for about three or four hours. … There was like two carloads
        of us.

              When we came back to Somerville it was early in the morning. I
        rode with Boo. Boo really, like, pumped my head up. When we got to
        town, Boo stopped off … where he lives. …

               Boo went inside his apartment. Before he went inside he said, now,
        you going to do this? You going to do this? I said yes. Boo came back out
        with a gun, he gave me the gun, and went into the trunk of his car and got
        a black jacket and a black do-rag. I put it on. …

1Section 8.05 of the Penal Code provides in part:
        (a) It is an affirmative defense to prosecution that the actor engaged in the proscribed
        conduct because he was compelled to do so by threat of imminent death or serious bodily
        injury to himself or another.
        …
        (c) Compulsion within the meaning of this section exists only if the force or threat of
        force would render a person of reasonable firmness incapable of resisting the pressure.
        (d) The defense provided by this section is unavailable if the actor intentionally,
        knowingly, or recklessly placed himself in a situation in which it was probable that he
        would be subjected to compulsion.
TEX. PEN. CODE ANN. § 8.05 (Vernon 2003).

Hemphill v. State                                                                                  Page 2
                  …
                  The next day Boo came to my house. I gave him his gun back and
          all the money. He said that I didn’t give him all of it, that there should be
          more.

          The jury was instructed on the affirmative defense of duress but found Hemphill

guilty.

          Hemphill’s first issue contends that the trial court abused its discretion by

admitting evidence of several extraneous offenses, and his second issue contends that

he received ineffective assistance of counsel because his attorney failed to object to

several extraneous offenses.

                  Under the Texas Rules of Evidence, evidence of other crimes,
          wrongs, or acts is not admissible “to prove the character of a person in
          order to show action in conformity therewith.” But it may “be admissible
          for other purposes, such as proof of motive, opportunity, intent,
          preparation, plan, knowledge, identity, or absence of mistake or accident.”
          The exceptions listed under Rule 404(b) are neither mutually exclusive nor
          collectively exhaustive. “Rule 404(b) is a rule of inclusion rather than
          exclusion.” The rule excludes only that evidence that is offered (or will be
          used) solely for the purpose of proving bad character and hence conduct
          in conformity with that bad character. The proponent of uncharged
          misconduct evidence need not “stuff” a given set of facts into one of the
          laundry-list exceptions set out in Rule 404(b), but he must be able to
          explain to the trial court, and to the opponent, the logical and legal
          rationales that support its admission on a basis other than “bad character”
          or propensity purpose.

                 One well-established rationale for admitting evidence of uncharged
          misconduct is to rebut a defensive issue that negates one of the elements
          of the offense. That is, a “party may introduce evidence of other crimes,
          wrongs, or acts if such evidence logically serves to make more or less
          probable an elemental fact, an evidentiary fact that inferentially leads to
          an elemental fact, or defensive evidence that undermines an elemental
          fact. … ”

                “Whether extraneous offense evidence has relevance apart from
          character conformity, as required by Rule 404(b), is a question for the trial

Hemphill v. State                                                                         Page 3
       court. …” Thus, a trial court’s ruling on the admissibility of extraneous
       offenses is reviewed under an abuse-of-discretion standard. As long as
       the trial court’s ruling is within the “zone of reasonable disagreement,”
       there is no abuse of discretion, and the trial court’s ruling will be upheld.
       A trial court’s ruling is generally within this zone if the evidence shows
       that 1) an extraneous transaction is relevant to a material, non-propensity
       issue, and 2) the probative value of that evidence is not substantially
       outweighed by the danger of unfair prejudice, confusion of the issues, or
       misleading of the jury. Furthermore, if the trial court’s evidentiary ruling
       is correct on any theory of law applicable to that ruling, it will not be
       disturbed even if the trial judge gave the wrong reason for his right ruling.

De La Paz v. State, 279 S.W.3d 336, 342-44 (Tex. Crim. App. 2009) (footnotes and citations

omitted).

       Hemphill’s brief addresses five instances of extraneous offenses admitted into

evidence.     The first one is Hemphill’s statement in his above-quoted videotaped

statement that he sold drugs for Powell, and the third instance is his later testimony that

detailed his drug-selling. The statement was admitted into evidence without objection,

and no objection was made to Hemphill’s testimony. To preserve a complaint for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling he desired from the

court unless the specific grounds were apparent from the context.          TEX. R. APP. P.

33.1(a)(1).   Because no objection was made to the statement’s admissibility or to

Hemphill’s later testimony about selling drugs, Hemphill cannot complain on appeal

that the trial court abused its discretion in admitting the statement or the testimony.

       The second instance involved Hemphill’s testimony about aggravated assault by

Hemphill with a board and criminal mischief involving breaking car windows. The

trial court overruled defense counsel’s objection to the relevance of the aggravated

Hemphill v. State                                                                      Page 4
assault evidence. A Rule 403 objection was not made.

       A testifying defendant may be impeached in the same manner as any other

witness. Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986). But as with any

other witness, he cannot be impeached by a prior offense that he has been charged with

unless the charges resulted in a final conviction for either a felony offense or an offense

involving moral turpitude, neither of which is too remote. Prescott v. State, 744 S.W.2d

128, 130 (Tex. Crim. App. 1988). However, an exception arises when a defendant

testifies and, during direct examination, leaves a false impression as to the extent of his

prior arrests, convictions, charges against him, or “trouble” with the police generally.

Id. at 131; Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App. 1972). In such a case, the

defendant is deemed to have “opened the door” to an inquiry by the State as to the

validity of his testimony. Prescott, 744 S.W.2d at 131.

       Hemphill testified but did not mention his prior arrests, charges, or trouble with

the police generally. He thus left a false impression that he had no prior arrests,

charges, or trouble with the police and opened the door to an inquiry by the State to

correct the false impression. See Turner v. State, 4 S.W.3d 74, 78-80 (Tex. App.—Waco

1999, no pet.). Moreover, to rebut Hemphill’s defensive theory that he committed the

robbery only under duress, the State sought to show that Hemphill committed other

crimes without being under duress, thus making his duress defense theory less

probable. See De La Paz, 279 S.W.3d at 343-44; Bass v. State, 270 S.W.3d 557, 563 (Tex.

Crim. App. 2008). We cannot say that the trial court abused its discretion in overruling

the relevance objection. And because no objection was made to the criminal mischief

Hemphill v. State                                                                    Page 5
evidence, Hemphill cannot complain on appeal that the trial court abused its discretion.

       The fourth instance is a charge of arson against Hemphill concerning the burning

of a home by Hemphill, Powell, and some of the others involved with Powell, which

Hemphill denied, although he admitted he had thought about burning the victim’s

vehicle. Defense counsel objected to relevance twice during this line of questioning and

the trial court sustained both objections, but the vast majority of Hemphill’s testimony

about the arson was not objected to, including testimony that Hemphill had been

charged with arson. Accordingly, it has not been preserved for appellate review.

       The fifth extraneous-offense episode concerns Hemphill’s alleged acts of violence

toward jailers during his pretrial incarceration. Because no objection was made to this

testimony, Hemphill’s complaint has not been preserved for appellate review. We

overrule Hemphill’s first issue.

       Hemphill’s second issue on ineffective assistance complains about his trial

counsel’s above-noted failures to object to extraneous-offense evidence. To prevail on

an ineffective assistance of counsel claim, a defendant must first show that his counsel’s

performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984); see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002). It must also be shown that the deficient performance prejudiced the defendant.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

       Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v.

Hemphill v. State                                                                    Page 6
State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s representation was

so deficient and so lacking in tactical or strategic decision-making as to overcome the

presumption that counsel’s conduct was reasonable and professional. See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642. Rarely will

the trial record contain sufficient information to permit a reviewing court to fairly

evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record

on direct appeal is simply undeveloped and cannot adequately reflect the failings of

trial counsel.” Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also

Mitchell, 68 S.W.3d at 642 (“The reasonableness of counsel’s choices often involves facts

that do not appear in the appellate record.”).

       In the absence of evidence of trial counsel’s reason for the challenged conduct,

we assume a strategic reason for trial counsel’s conduct, if one can be imagined. Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“an appellate court ‘commonly will

assume a strategic motivation if any can possibly be imagined,’ and will not conclude

the challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it”) (quoting 3 W.

LAFAVE,   ET AL.,   CRIMINAL PROCEDURE § 11.10(c) (2d ed. 1999) and citing Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). But, if nothing in the record reveals

trial counsel’s reason, it is improper for us to speculate on it. See Thompson, 9 S.W.3d at

814.

       We have a silent record on why Hemphill’s attorney did not object to most of the

Hemphill v. State                                                                    Page 7
extraneous-offense evidence.    Because the appellate record in this case does not

evidence the reasons for trial counsel’s conduct, and because these alleged deficiencies

could have been the subject of trial strategy not revealed by the record, we overrule

Hemphill’s second issue. See Jones v. State, 170 S.W.3d 772, 776 (Tex. App.—Waco 2005,

pet. ref’d).

       Having overruled Hemphill’s two issues, we affirm the trial court’s judgment.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment to the extent it affirms the trial
       court’s judgment. He does not join the opinion. A separate opinion will not
       issue. He notes, however, that the statement for which Turner v. State is cited on
       page 5 of the opinion is an overstatement of its holding. A defendant does not
       open the door to the introduction of extraneous offenses by not testifying about
       them. This is not how Hemphill opened the door. As the court notes, it was the
       nature of the defense that opened the door to the introduction of this evidence.)
Affirmed
Opinion delivered and filed October 28, 2009
Do not publish
[CRPM]




Hemphill v. State                                                                  Page 8
