Lowell Kent Stevens v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2008
• Docket: 01-07-00111-CR
• Status: Published

Opinion

Opinion issued July 10, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-07-00111-CR

LOWELL KENT STEVENS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1074898

MEMORANDUM OPINION

A jury convicted appellant, Lowell Kent Stevens, of murder. See Tex. Penal Code Ann. § 19.02(b)(1), (b)(2) (Vernon 2003). The indictment contained two enhancement paragraphs including Stevens's previous convictions for felony possession of marihuana and aggravated assault. Stevens pled not guilty, and trial was held before a jury. The jury found Stevens guilty and assessed Stevens's punishment at confinement for life in the Texas Department of Criminal Justice-- Institutional Division.

In seven points of error, Stevens contends that: (1) the trial court erred in excluding Stevens's evidence of an alternative perpetrator which violated Stevens's right to due process; (2) the trial court abused its discretion by excluding Stevens's evidence of an alternative perpetrator; (3) the trial court abused its discretion by shackling Stevens during trial; (4) the prosecutor engaged in misconduct by deliberately misstating certain evidence; (5) the evidence is legally insufficient to sustain his conviction; (6) the evidence is factually insufficient to sustain his conviction; and (7) trial counsel rendered ineffective assistance of counsel.

We affirm.

I. Factual Background Harold Parmelee lived with his mother, Linda Baird, ⁽¹⁾ at 2128 Parker Road in Houston. Parmelee and Baird met the complainant, Gary Owens, who was living out of his van at the time. Baird agreed to let Owens rent space in the garage of her house. Owens was to pay Baird with his social security check since he had recently completed his paperwork for benefits.

Stevens lived with his invalid wife, Jackie, ⁽²⁾ in a shack attached to the back of the Sonny's convenience store a block down the street from Baird's house. Parmelee met Stevens shortly before this offense occurred.

Around 8:30 a.m. on June 28, 2005, a City of Houston employee found Owens's body in a drainage ditch on the corner of Burden and Parker streets and reported the discovery to police. Owens's body was found about four houses from Baird's house.

Three homicide officers were dispatched to the scene. They called the medical examiner, who pronounced Owens dead. Owens had blood coming from his nose and face, injuries to his eye and eyebrow, and injuries to his upper left forehead. His shorts were in a twisted position and the pockets were pulled inside-out.

The officers took a picture of Owens and canvassed the neighborhood for anyone with information. The residents of a house next to the ditch where Owens's body was found reported hearing a thump outside their home around 2:00 a.m. After examining the scene, Sergeant C.E. Elliott received a call from Baird and made arrangements to meet with her and Parmelee.

The next morning, Elliott showed Baird and Parmelee a photo of the victim, whom they identified as Owens. Baird and Parmelee also gave a statement to police implicating Stevens in Owens's death. Elliott testified that Parmelee and Baird were cooperative and forthcoming.

While at the Baird residence, officers noted that there was a tree with a large root protruding from the ground in Baird's front yard. Elliot testified that slamming someone onto that root could cause significant internal injuries.

Parmelee walked Elliott down the street to show him the shack where Stevens lived. Subsequently, Elliott obtained a warrant for Stevens's arrest. After obtaining Stevens's permission to search his home, Elliott recovered a ball cap, a watch, a Swiss Army knife, a cigarette lighter and a mini CD player. In his statement to Elliott, Parmelee claimed these very items had been stolen from Owens. Elliott also collected a pair of blue jean shorts stained with blood.

Sergeant Glenn Riddle arrived at Stevens's home, photographed the scene, and collected the evidence. Elliott then returned to Baird's house, where Baird and Parmelee identified the various items collected from Stevens's home as Owens's property. Baird gave the officers Owens's bloody dentures and his favorite "Koozie," both of which she found by the tree in her front yard.

Before the incident that led to Owens's death, the facts are generally agreed upon. However, the events of the early morning hours of June 28, 2005, were in dispute at Stevens's trial. We will present both versions.

A. State's Evidence

On June 27, 2005, Stevens and his wife, Jackie, were at Baird's house washing clothes and watching television. Parmelee testified that Stevens and his wife were having financial problems and did not have money to wash their clothes elsewhere. Parmelee also told the jury that Stevens had been drinking beer all day. Parmelee had also been drinking beer and, because he had suffered a neck injury earlier that day, he took a muscle relaxer and went to sleep.

Baird, screaming and scared, woke her son up several hours later. Baird told Parmelee that Stevens was beating up Owens in the front yard. Parmelee went to the front door and saw Stevens lift Owens over his head and slam him to the ground near the tree in the front yard. Holding Owens's crumpled up shirt and the crotch of his pants, Stevens picked Owens up a second time and slammed him onto the roots of the tree. The side of Owens's head, his ribs, his arm and his leg were getting slammed. Stevens slammed Owens like this two or three times and then kicked and punched him. Owens kept yelling, "What did I do? What did I do? I didn't do anything."

Parmelee did not go outside because he was afraid of Stevens, and Baird held Parmelee back because she feared for his safety. Parmelee testified that Stevens was extremely mad and appeared to be in a "blind rage." Owens was in the fetal position the entire time and did not attempt to defend himself. Owens weighed only 118 pounds; Stevens outweighed him by about a hundred pounds.

Parmelee yelled out the door several times telling Stevens to stop. Parmelee and Baird did not have a telephone, so they could not call the police. Jackie was lying on Baird's living room floor, but she was incoherent due to her illness. Parmelee left the doorway and, through the window, he noticed a shadow pass by the rear of the van in the driveway. Parmelee lay down and went back to sleep.

Around 2:00 a.m., Stevens appeared on the front porch of the Baird house; Baird and Parmelee both went to the door. Stevens had blood on his hands, arms, and chest; he was wearing a pair of jean shorts without a shirt. Stevens tried to give Parmelee Owens' CD player, lighter, watch, and knife; Parmelee said he did not want them. When Parmelee asked where Owens was, Stevens answered, "He's around the corner." Stevens continued, "He got up and tried to follow me, and I knocked him out again." After Parmelee told Stevens to leave, Parmelee and Baird put Jackie in her wheelchair and Stevens left with her.

Parmelee and Baird did not call police right away because they were scared to go outside to the pay phone and because Parmelee mistakenly believed he had a warrant out for his arrest. At 4:30 a.m., Parmelee's boss picked him up, and they checked on a job and had breakfast. Returning home, Parmelee saw the coroner's wagon and police at the corner of Parker and Burden. Baird then called the police from a pay phone to report that she believed she knew the person they had found on the street.

Following Parmelee's testimony, Sergeant Elliot testified that, from the evidence, it appeared that Stevens beat Owens until he was incoherent, walked with Owens to Burden and Parker, and left the body in the ditch. Elliott also believed that Stevens had stomped on Owens's neck either at the scene of the initial beating or later at the ditch.

Dr. Morna Gonsoulin, the assistant medical examiner, told the jury that the cause of death was blunt force injuries to the head, neck and abdomen. Owens suffered bleeding in the soft tissues of the scalp, inside the brain, and bruising on the surface of his brain, caused by a force significant enough to shake the brain and damage the vessels until they burst and caused internal bleeding. Owens also sustained significant force from being slammed to the ground that broke vessels at the bottom of the brain near the base of the skull. Dr. Gonsoulin testified that these injuries were consistent with someone being slammed violently to the ground or having their head smashed into the ground. Dr. Gonsoulin testified further that Owens sustained a significant blow to his mouth that caused a laceration and bleeding. She explained that the force that caused these internal injuries to the mouth could have knocked Owens's dentures out of his mouth. Contusions on Owens's face indicated that he sustained multiple blows; and contusions on the left side of his face indicated that he either struck his entire face against something very hard or had "multiple strike sites," one with great force and one with lesser force.

Finally, Dr. Gonsoulin testified that Owens's collarbone and seven ribs were fractured and that he had extensive injuries to his abdomen, intestines, and kidney that had caused internal bleeding.

Laura Gahn, the State's final witness, conducted the DNA testing in the instant case. She testified that Parmelee's DNA was not found on the blue jean shorts and baseball cap collected from Stevens's house, or from scrapings from Owens's fingernails. However, the bloody shorts had Stevens's DNA on them and Owens could not be excluded as a contributor to the DNA mixture on the shorts. Gahn told the jury that the DNA mixture on the shorts could have been from Stevens's skin cells and Owens's blood cells.

B. Stevens's Defense ⁽³⁾

Stevens's theory of the case was that Parmelee had caused the injuries leading to the death of Owens. Alternatively, Stevens claimed that Owens's injuries were sustained in an automobile accident.

Harry Johnson, a private investigator, testified first for the defense. Johnson interviewed Parmelee on August 15, 2005, about six weeks after Owens's death. Johnson testified to differences in Parmelee's interview at that time and his testimony in court. One discrepancy was the number of body slams he observed. Parmelee told Johnson that he saw one body slam, but at trial he testified that Stevens slammed Owens to the ground three times.

Melvin Moore, an inmate who had been in holdover with Parmelee, ⁽⁴⁾ testified that Parmelee had admitted to him that Parmelee was high on "bars," or Xanax, at the time of Owens's death. Moore testified further that Parmelee told him that he hated Stevens and that his mother was angry with Stevens.

Throughout the trial, Stevens's counsel attempted to show that Parmelee had both the motive and the opportunity to murder Owens, and that Parmelee had violent tendencies. In support of this theory, defense counsel elicited testimony from Parmelee that Baird had called the police and made two assault allegations against her son prior to the Owens incident.

Defense counsel attempted to establish Parmelee's motive for killing Owens by eliciting testimony from Parmelee that Owens had pushed his mother to the floor. Additionally, defense counsel elicited testimony from Parmelee that Owens had stolen a bicycle and a van from his mother. Defense counsel also pointed out another inconsistency in Parmelee's testimony. Specifically, Parmelee told Officer Sosa that Stevens returned 35 or 45 minutes after Parmelee and Baird witnessed the beating of Owens in the front yard, but at trial Parmelee testified that Stevens returned after two hours. Finally, defense counsel elicited testimony that, following his death, all of Owens's possessions ended up in the custody of Parmelee.

II. Discussion

A. Evidence of an Alternative Perpetrator

In his first and second points of error, Stevens claims the trial court committed error in excluding Stevens's evidence that Parmelee was the individual responsible for the death of Owens. Stevens claims the exclusion of this evidence violated his right to due process and constituted an abuse of discretion because such evidence was admissible under Rules 401, 403, 701, 802(24), and 804(b)(2) of the Texas Rules of Evidence. See Tex. R. Evid. 401, 403, 701, 802(24), 804(b)(2).

1. Relevant Facts

Stevens's trial counsel attempted to introduce into evidence a telephone answering service's message slip which read, "Harold Parmelee had something to do with Gary's death." The message slip purported to be a call from Linda Baird, it listed Baird's phone number, and was dated August 18, 2005. The caller was trying to reach Harry Johnson at J.J. Grandoni & Associates, the private investigation firm hired by Stevens. The message was taken by Rhonda Diggs, an employee of the answering service that had taken calls for the investigation firm for 15 years.

The prosecutor objected to the introduction of the message slip into evidence on the grounds that it was irrelevant and constituted inadmissible hearsay. See Tex. R. Evid. 801(d). Defense counsel countered that the message was admissible under the business exception to the hearsay rule. See Tex. R. Evid. 803(6). To this end, defense counsel made a proffer on the record through Diggs. Diggs testified that she took the message for Johnson and that, during the course of the phone call, the caller also said, "he had come in the house and pushed her around a little bit and she was scared." The record does not indicate to whom the caller was referring. The trial court ruled that the message slip was admissible under the business records exception to the hearsay rule, but that the content of the message was excluded from evidence because: (1) the message was "unreliable," and (2) its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 801(d), 803(6).

2. Did the exclusion of the evidence violate Stevens's due process rights?

Stevens first alleges that the exclusion of the telephone message violated his right to due process because, without it, Stevens could not successfully present his defense that Parmelee was the person responsible for Owens's death.

In Texas, the improper exclusion of evidence may raise a constitutional violation in two circumstances: (1) when an evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense or (2) when a trial court erroneously excludes evidence that is a vital portion of the case and the exclusion effectively precludes the defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State, 68 S.W.3d 657, 659-62 (Tex. Crim. App. 2002)).

However, to preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 33.1(a). A failure to timely and specifically object waives even constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). In the instant case, Stevens failed to assert at trial that the exclusion of Diggs's testimony or the telephone message violated his right to due process. Therefore, Stevens has waived review of this claim. See Muniz, 851 S.W.2d at 255 (holding "except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory or otherwise are forfeited by failure to comply with Rule 33.1(a)").

3. Was the content of the telephone message admissible?

Stevens next argues that the trial court abused its discretion in excluding Diggs's testimony and the telephone message because such evidence was probative that Parmelee, not Stevens, caused Owens's death.

We review a trial court's decision whether to admit or exclude testimony for abuse of discretion, and we will reverse only if the trial court abused its discretion. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). As long as the trial court's evidentiary ruling is within the zone of reasonable disagreement, an appellate court will not disturb it. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). If the record supports the ruling, we must affirm. See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).

At trial, all relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules. See Tex. R. Evid. 402. Evidence is relevant if it has any tendency to make more probable or less probable the existence of a consequential fact. Tex. R. Evid. 401; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Not all relevant evidence is admissible. Moses, 105 S.W.3d at 626.

We agree with the trial court that, although relevant, the contents of the telephone message were offered for the truth of the matter asserted and therefore constitute inadmissible hearsay. Cf. White v. State, No. 01-04-00410-CR, 2006 WL 727809, at *7 (Tex. App.--Houston [1st Dist.] Mar. 23, 2006, pet. ref'd) (memo. op., not designated for publication) (holding telephone messages retrieved from murder victim's voicemail admissible only to establish time of victim's death); Rogers v. State, 183 S.W.3d 853, 865-66 (Tex. App.-- Tyler 2005, no pet.) (holding portions of telephone message implicating defendant's violent tendencies toward victim inadmissible hearsay). "Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). As the trial court correctly stated, a principal reason for excluding hearsay is because of its unreliable nature. Specifically, the veracity of the declarant cannot be tested by cross-examination. Here, Baird died prior to trial, and there was no way to verify whether or not she was the person who left the message. Therefore, we hold that the trial court's ruling to exclude Diggs's testimony and the telephone message did not fall outside of the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Furthermore, even if the telephone message was to qualify for admission into evidence, the trial court was free to exclude the message on Rule 403 grounds, as it did in this case. Rule 403 provides that, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.

As previously noted, there was no way of verifying the authenticity of the telephone message because Baird died prior to trial. Therefore, we hold that the trial court did not abuse its discretion in concluding that the nature of the message was so unreliable that its probative effect was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).

Stevens also contends that the contents of the telephone message were admissible under Rule 701 of the Texas Rules of Evidence, which provides that a witness may offer testimony in the form of opinions or inferences if the testimony is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his or her testimony or the determination of a fact issue. See Tex. R. Evid. 701. Assuming without deciding that Rule 701 makes the evidence relevant, the content of the telephone message was inadmissible hearsay that was also properly excluded as unduly prejudicial under Rule 403.

Finally, Stevens urges this court to find the contents of the telephone message admissible under Rules 802(24) (statement against interest) and 804(b)(2) (dying declarations) of the Texas Rules of Evidence. See Tex. R. Evid. 802(24), 804(b)(2). However, because Stevens raises these arguments for the first time on appeal, they were not properly preserved for our review. See Tex. R. App. P. 33.1(a). Therefore, we will not address them.

We overrule Stevens's first and second points of error.

B. Shackling

In his third point of error, Stevens contends the trial court abused its discretion by shackling him during trial.

The Fourteenth Amendment of the United States Constitution ⁽⁵⁾ and Article I, Section 19 of the Texas Constitution ⁽⁶⁾ guarantee criminal defendants the right to a fair trial. Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976); Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991). Three constituent elements of this guarantee are directly implicated by the shackling of a criminal defendant during trial proceedings. Wynn, 219 S.W.3d at 59. First, "the criminal process presumes that the defendant is innocent until proven guilty." Id. A defendant who is visibly shackled does not have the benefit of this bedrock presumption, and thus his right to a fair trial is fundamentally compromised. Id. Second, "the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel." Id. The use of shackles may undermine this right by impeding a defendant's ability to effectively communicate with his attorney. Id. Third, "[t]he routine use of shackles in the presence of juries" compromises "[t]he courtroom's formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual's liberty through criminal punishment." Id.

For the reasons stated above, "[t]he law has long forbidden routine use of visible shackles during the guilt phase" of a criminal defendant's trial. Id.; Long, 823 S.W.2d at 282. Despite this general rule, courts recognize that it may be necessary for certain defendants to be restrained in exceptional circumstances. Wynn, 219 S.W.3d at 59 (citing Deck v. Missouri, 544 U.S. 622, 629, 125 S. Ct. 2007, 2012 (2005)). Such circumstances may arise, for instance, when a defendant has demonstrated a propensity to escape or has threatened or assaulted courtroom personnel, thereby implicating an essential state interest, namely, courtroom security. Id. Prior to the use of shackles, however, a trial court must make a specific finding that they are necessary for reasons particular to a given case. Id. Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. Id.; Deck, 544 U.S. at 627, 125 S. Ct. at 2011.

The use of restraints, such as shackles, cannot be justified based on general appeal to the need for courtroom security or simple reference to the severity of the charged offense. Wynn, 219 S.W.3d at 59; Long, 823 S.W.2d at 283. Rather, a trial court must state with particularity its reasons for shackling a defendant. Wynn, 219 S.W.3d at 59; Long, 823 S.W.2d at 283. Such determinations are reviewed under an abuse of discretion standard. Wynn, 219 S.W.3d at 60; Long, 823 S.W.2d at 282.

The day after voir dire, the following exchange occurred between the parties:

Trial court: Why don't we get on the record outside the presence of the jury regarding the shackling of the defendant in the courtroom. It's my understanding that [defense counsel] would like to object to that.

You may proceed.

Defense counsel: Yes, Your Honor. I would like to object. I don't think I did on the record [yesterday]. During voir dire my client was shackled. He's again shackled today. We are starting the guilt-innocence portion of the trial, and I object that it's highly prejudicial, that if any of the jurors do happen to see my client shackled, that it gives the impression that he's a flight risk, that he is attempting to escape or that he's dangerous in some way.

Trial court: Do you want to respond?

State: Yes, Judge. We would ask that the defendant remain shackled. Just for the record, the defendant is here charged with murder, has a prior aggravated assault conviction, one, two, three, four, five theft convictions. In fact, his criminal history shows two aggravated assault convictions, as well as theft and trespass. He's had a number of infractions while he's been incarcerated in the Harris County Jail.

Based on his history and based on the fact that he's charged with murder and he's charged with beating a guy to death, we ask that he remain shackled because he is a danger. And for the record, the shackles are not in view of the court. They are on his feet, and the jury can't see. You can't see them. The table--as I look at the table, you can't see from the jury box his feet or any of the lower portion of his body.

Defense counsel: May I say one thing in response to that?

Trial court: Yes.

Defense counsel: For purposes of the record, it's my understanding that Mr. Stevens' infractions in the jail are, one, tattooing himself and, two, being intoxicated or being around an intoxicant. Neither one of those are violent. I believe he's been in jail since 2005, so I don't think that he is dangerous.

Trial court: I'm going to allow the shackles to remain. I do want the record to reflect that they are on his ankles. He is seated at counsel table, which there is a solid piece of wood going from the top of the desk down to the floor that faces the jury box. It is impossible for them to see the shackles unless he sticks his feet out to show them.

I will instruct my bailiffs not to move Mr. Stevens in front of the jury. We will allow them to leave, and then we'll move him back in the holdover ensuring that they won't see them. Again, the only way they will is if he wants them to.

I agree that the two prior aggravated assault convictions and the present charge for murder are compelling reasons; but in addition, in a review of my file, I saw that he was charged with another murder case in 1980 in Hawaii, that his current range of punishment he's facing is 25 years to life, and that self-mutilation involves using a sharp object on your body. So, in light of all of those factors, I am going to order that he remain shackled.

In reviewing Stevens's challenge, we are mindful that a decision to apply shackles to [a] defendant "must be subjected to close judicial scrutiny to determine if there was an essential state interest furthered by compelling a defendant to wear shackles." Wynn, 219 S.W.3d at 60 (citing United States v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002)). In determining whether the trial court abused its discretion, each case must be evaluated on its own facts as reflected by the appellate record. Id. (citing Culverhouse v. State, 755 S.W.2d 856, 860 (Tex. Crim. App. 1988)).

Here, the trial court apparently ordered Stevens shackled due to concerns over courtroom security. Specifically, the trial court took into account Stevens's two prior aggravated assault convictions, the fact that Stevens had been charged in two murder cases, and that he had a jail infraction involving self-mutilation with a sharp object. We do not agree that these circumstances present a compelling case for shackling.

In Long, the Court of Criminal Appeals held that the trial court's findings in the record did not support the judge's decision to have the defendant shackled during trial. Long, 823 S.W.2d at 283. There, the defendant was charged with a "brutally violent" capital murder but there was no other evidence in the record of violence or threatened violence by appellant during the trial itself. Id. In holding that the trial court abused its discretion in shackling the defendant, the Court of Criminal Appeals concluded, "[t]he fact that a person is charged with the most serious of felonies cannot override that person's constitutional presumption of innocence." Id. (emphasis in original). Like the situation in Long, the trial court here justified the use of shackles by a general appeal to the need for courtroom security and simple reference to the severity of the charged offense. These justifications do not rise to the level of particularity required by the Court of Criminal Appeals. See id. Additionally, we do not find Stevens's prior murder charge or the fact that he tattooed himself while in jail to constitute the type of "exceptional circumstances" that would justify restraint. Wynn, 219 S.W.3d at 59. Therefore, we hold that the trial court abused its discretion in ordering Stevens shackled. See id. at 60; Long, 823 S.W.2d at 282.

When it concludes that shackling was error, an appellate court must determine whether the shackling constituted harmful error. See Tex. R. App. P. 44.2(a). Because the use of shackles implicates constitutional rights, an appellate court must "reverse a judgment of conviction or punishment unless [it] determines beyond a reasonable doubt that the [shackling] did not contribute to the conviction or punishment." Wynn, 219 S.W.3d at 60. Shackling has principally been held to be harmful error when the shackles are detectible to the jurors or when the use of restraints unduly restricts a defendant's ability to communicate with counsel. Id. at 61. According to the Court of Criminal Appeals, all efforts should be undertaken to prevent the jury from seeing the defendant in shackles, except when there has been a showing of exceptional circumstances or a manifest need for such restraint. Long, 823 S.W.2d at 282; Wynn, 219 S.W.3d at 61.

In the instant case, the trial court noted that Stevens's shackles were not visible to jurors and Stevens does not challenge that assessment. See, e.g., Masters v. State, No. 14-06-00458-CR, 2007 WL 2034826 at *1 (Tex. App.--Houston [14th Dist.] July 17, 2007, no pet.) (providing trial court's recitation that it would be impossible for jury to see that defendant was leg-ironed if he kept his feet under table, and there was no evidence that jury could or did see that defendant was leg-ironed). The Court of Criminal Appeals and various courts of appeals have consistently held that, in the absence of evidence that the jury actually saw the restraints, a defendant is not harmed or prejudiced. See Canales v. State, 98 S.W.3d 690, 697-98 (Tex. Crim. App. 2003); Cooks v. State, 844 S.W.2d 697, 722-23 (Tex. Crim. App. 1992); Long, 823 S.W.2d at 282; Simms v. State, 127 S.W.3d 924, 929 (Tex. App.--Corpus Christi 2004, pet. ref'd); Ziolkowski v. State, 223 S.W.3d 640, 644 (Tex. App.--Texarkana 2003, pet. ref'd). Therefore, we conclude Stevens was not harmed as a result of being shackled.

We overrule Stevens's third point of error.

C. Prosecutorial Misconduct

In his fourth point of error, Stevens contends that the prosecutor engaged in misconduct by deliberately misstating the evidence. Specifically, Stevens complains of the prosecutor's statement that Stevens "finished [Owens] off."

During redirect examination of Sergeant Elliott, the investigating officer, the following transpired:

State: And do you recall--you know, you've been asked how you formed your opinion--the statement from Mr. Stevens to Mr. Parmelee that, "I went ahead and finished him off?"

Elliott: Yes.

Defense Counsel: Judge, I object. That statement is not in evidence or any statement.

State: Mr. Parmelee testified to it, for starters.

Court: Overruled.

To preserve error for prosecutorial misconduct, appellant must (1) make a timely and specific objection; (2) request an instruction to disregard the matter improperly placed before the jury; and (3) move for mistrial. See Tex. R. App. P. 33.1(a); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). In the instant case, Stevens did not object on the basis of prosecutorial misconduct, did not request an instruction to disregard, and did not move for a mistrial. Therefore, Stevens has not properly preserved his complaint on appeal, and we cannot consider it. See Tex. R. App. P. 33.1.

We overrule Stevens's fourth point of error.

D. Sufficiency of the Evidence

In his fifth and sixth points of error, Stevens challenges the legal and factual sufficiency of the evidence supporting his conviction. Specifically, Stevens claims that the evidence indicates that Owens was killed by an automobile accident or by Parmelee, rather than by the acts of Stevens.

1. Standard of Review

a. Legal Sufficiency

When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston [1st Dist.] 1998, no pet.). When examining the legal sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). This standard concedes to appellate courts only a limited role. Teer v. State, 923 S.W.2d 11, 17 (Tex. Crim. App. 1996). The inquiry does not require a reviewing court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. In this regard, the court is not to position itself as a thirteenth juror in assessing the evidence. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992) (stressing that appellate judges are not factfinders); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Rather, the court is to position itself as a final, due process safeguard, ensuring only the rationality of the factfinder. Moreno, 755 S.W.2d at 867. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

b. Factual Sufficiency

When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). There are two prongs to a factual sufficiency analysis. First, we must ask whether the evidence introduced to support the verdict, although legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Second, we must ask whether, considering any conflicting evidence, the jury's verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 415.

During the course of the analysis, we are mindful that we must give appropriate deference to the jury's findings in order to prevent intruding on the factfinder's role as the sole judge of the weight and credibility of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. See Marshall, 210 S.W.3d at 625. In other words, as the determiner of the credibility of the witnesses, the jury may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 n.5. In our review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

2. Murder

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). A person also commits murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Id. § 19.02(b)(2). In the present case, Stevens was charged by indictment with (1) intentionally or knowingly causing the death of Owens by striking Owens with his hand or foot or an unknown object, or (2) intending to cause serious bodily injury to Owens and causing his death by intentionally or knowingly committing an act seriously dangerous to human life, namely by striking Owens with his hand or foot or an unknown object.

3. Analysis

Stevens argues that the evidence is legally and factually insufficient to support the allegation in the indictment that Stevens intentionally or knowingly caused the death of Owens. Initially, Stevens claims that he had no motive to commit murder, while Parmelee did. Stevens points to inconsistencies in Parmelee's testimony and claims that Parmelee gave implausible explanations for not calling the police immediately during the beating incident. Stevens also asserts that the neck injury Parmelee suffered the day of the incident could have been sustained during a struggle with Owens.

In a legal-sufficiency review, the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. Therefore, it was the jury's prerogative to resolve any apparent conflicts within Parmelee's testimony in the State's favor.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense of murder as to Stevens beyond a reasonable doubt. The evidence reflects that, from his doorway, Parmelee saw Stevens lifting Owens over his head and slamming him into the exposed root of a tree in Baird's front yard. Parmelee testified that he saw Stevens repeat the action several times and then drop Owens on the ground and kick and punch him while Owens was in the fetal position. Once Parmelee had returned to the interior of his house, he saw a shadow pass by the window, presumably the shadows of Stevens and Owens. Parmelee testified that two hours later Stevens returned to the Baird home holding Owens's possessions in his bloody hands. Parmelee told the jury that Stevens said Owens had followed him around the corner and that Stevens had knocked him out.

Consistent with this scenario, Owens's body was found in a ditch not far from Baird's home and Stevens's home. When the police found Owens, he was already dead and had suffered numerous contusions from multiple blows, extensive internal injuries, and bleeding in the brain.

Additionally, upon executing the search warrant at Stevens's home, officers recovered Owens's property and collected blue jean shorts which had blood on them. Officer Riddle testified that based on his training and experience, most of the bloodstains on the shorts were transfer stains, which could have been transferred from Stevens's hands to the shorts. Stevens's DNA was on the shorts and the testimony revealed that Owens could not be excluded as the contributor to the minor component of DNA mixture on the shorts. In light of this evidence, any rational trier of fact could have concluded that Stevens murdered Owens.

Alternatively, Stevens alleges that Owens could have sustained his injuries from being hit by a car rather than by Stevens. In support of his theory, Stevens points to evidence in the record that Owens was alive during the time in which he was being beaten in Baird's front yard. Later, around 2:00 a.m., the people in the home near the location where Owens was found heard a "thump." Stevens contends that a car, not a person, would have made a thump. Stevens also notes that some of Owens's injuries were consistent with those suffered in car accidents.

Contrary to Stevens's theory, both Officer Elliott and the assistant medical examiner testified at trial that Owens's injuries were not consistent with an auto-pedestrian accident. Furthermore, there was no evidence of skid marks or tire marks on the road or on Owens's clothing.

Given all the evidence in its entirety, we hold that that a rational jury could have concluded beyond a reasonable doubt that it was Stevens who caused the death of Owens and that he did so intentionally. Therefore, the evidence is legally sufficient.

For the same reasons given in our resolution of Stevens's legal sufficiency claim, we also reject his factual sufficiency challenge. Again we note that the issue of Parmelee's credibility is within the sole province of the jury in a factual-sufficiency review. Cain, 958 S.W.2d at 408. Moreover, there is no objective basis in the record upon which we can conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. Viewing all of the evidence in a neutral light, we hold that the evidence showing that Stevens intentionally caused the death of Owens is not so weak as to render the verdict clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. Therefore, the evidence is factually sufficient to support Stevens's conviction.

Because we hold that the evidence is legally and factually sufficient to support Stevens's conviction for murder, we overrule Stevens's fifth and sixth points of error.

E. Ineffective Assistance of Counsel

In his seventh point of error, Stevens contends he received ineffective assistance of counsel at trial because his trial attorney: (1) failed to follow up on the telephone message allegedly left by Baird with Stevens's private investigator, and (2) failed to request a jury charge on the lesser-included offense of manslaughter.

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the Strickland test, a defendant must prove (1) his trial counsel's representation was deficient, and (2) the deficient performance was so serious that it deprived the defendant of a fair trial. Id. at 687, 104 S. Ct. at 2064. To establish both prongs, the defendant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. at 690-94, 104 S. Ct. at 2066-68. A defendant's failure to satisfy one prong makes it unnecessary for a court to consider the other prong. Id. at 697, 104 S. Ct. at 2069. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

Our review of defense counsel's performance is highly deferential, beginning with the strong presumption that the attorney's actions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.3d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial counsel's strategy, we will not conclude that defense counsel's assistance was ineffective unless 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)).

When considering the first prong of Strickland, we must decide whether there is sufficient evidence in the record to refute the strong presumption that trial counsel rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). To this end, the Strickland standard requires Stevens to rebut the presumption of adequate assistance by a preponderance of the evidence. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

1. Failure to Follow-up on Telephone Message

Stevens alleges that trial counsel failed to adequately investigate because counsel did not "follow-up with Ms. Baird who recanted her initial statement to the police that Stevens was responsible and was now inculpating her own son." However, it was the responsibility of the investigative firm to follow-up on the telephone call, not the responsibility of defense counsel. In fact, defense counsel stated that the investigator who Baird allegedly called quit working for the firm and she did not know "if it fell through the cracks or what." Therefore, defense counsel may not have even known about the message left with the investigator in order to follow-up with Baird prior to her death.

Moreover, because Stevens did not file a motion for new trial, the record in the present case is silent as to defense counsel's reasons for her actions. When there is no motion for new trial hearing and the record is silent as to counsel's reasons for his or her actions, an appellate court will not speculate as to counsel's trial strategy. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.) Thus, Stevens has not rebutted the strong presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment. Based on the totality of this record, Stevens has not established that trial counsel's performance fell below an objective standard of reasonableness or that counsel's conduct was "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392. Stevens, therefore, has failed to satisfy the first prong of Strickland.

2. Failure to Request Lesser-Included Charge on Manslaughter

Stevens also asserts that defense counsel was ineffective for failing to request a jury instruction on the lesser included offense of manslaughter. To establish his claim that defense counsel's performance was deficient, Stevens must first show that he was entitled to the instruction. See Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).

Under the Texas Code of Criminal Procedure, an offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

We agree that manslaughter is a lesser included offense of the offense of murder in the instant case. See Pierce v. State, 234 S.W.3d 265, 269 (Tex. App.--Waco 2007, pet. ref'd) (citing Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) (setting forth recent requirement that reviewing court must compare statutory elements of murder as set out in indictment to elements of requested lesser offense)). However, Stevens did not give defense counsel the opportunity to explain her decisions because Stevens did not move for a new trial and request a hearing. In the absence of a record of counsel's reasoning, we must generally presume that Stevens's defense counsel had a plausible reason for her actions. Lumpkin v. State, 129 S.W.3d 659, 664 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd).

Furthermore, as the State correctly notes, defense counsel may have decided not to ask for a jury instruction because counsel did not want the jury to consider inconsistent defenses. Stevens's defensive theory was that Parmelee was the individual responsible for the death of Owens. By not asking for an instruction on the lesser-included offense of manslaughter, the jury could convict Stevens of murder or find him not guilty. In the course of pursuing such an "all-or-nothing" strategy, defense counsel does not act deficiently in failing to request a lesser-included offense instruction. See Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). Therefore, we cannot conclude that defense counsel's decision not to request the lesser-included offense of manslaughter was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392; Bone, 77 S.W.3d at 833-34 n.13. Thus, Stevens has not rebutted the strong presumption that defense counsel made all significant decisions in the exercise of reasonable professional judgment and has again failed to satisfy the first prong of Strickland.

We overrule Stevens's seventh points of error.

III. Conclusion

Having overruled all of appellant's points of error on appeal, we affirm the judgment of the trial court.

Bea Ann Smith

Justice

Panel consists of Chief Justice Radack and Justices Higley and Smith. ⁽⁷⁾

Do not publish. Tex. R. App. P. 47.2(b).

1. Baird died on September 21, 2006, before trial.

2.

Jackie died before trial.

3.

Stevens did not testify at trial.

4.

At the time of trial, Parmelee was serving time in the Texas Department of Criminal Justice--Institutional Division for the felony offense of failing to register as a sex offender.

5.

U.S. Const. amend. XIV.

6.

Tex. Const. art. I, § 19.

7.

The Honorable Bea Ann Smith, retired Justice, Third Court of Appeals, participating by assignment.