Roger Dale Stepp v. State

• Court: Court of Appeals of Texas
• Decided: March 1, 2007
• Docket: 14-05-00635-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 1, 2007

Affirmed and Memorandum Opinion filed March 1, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00635-CR

ROGER DALE STEPP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 970,526

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Roger Dale Stepp of the aggravated sexual assault of his adopted daughter, C.D.S., and the trial court assessed punishment at twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In this appeal, appellant challenges the factual sufficiency of the evidence supporting his conviction, the admission of certain adverse testimony, and the effectiveness of his trial counsel.  We hold the evidence is factually sufficient to support the conviction and any error by the trial court in admitting improper outcry testimony was not presented for review.  We further hold appellant failed to show that his trial counsel was ineffective.  Therefore, we affirm the judgment of the trial court.

I.  Factual and Procedural Background

          Complainant C.D.S. was born on March 13, 1990, and had a prior history of sexual abuse by the time she was adopted by appellant Roger Stepp and his wife, Patti Stepp, at the age of two and a half.   The Stepps adopted another daughter, S.S., a few years later, and they also have a son, C.S.  Throughout the time C.D.S. lived with the Stepps, she displayed behavioral problems.

C.D.S. testified that when she was eight or nine years old, appellant made her take off her clothes and sit on top of him while he was nude in the bathroom of the family=s home.  According to C.D.S., their sexual organs were in contact as appellant rocked her back and forth until he stopped and wiped her off with toilet paper.  She also testified that appellant repeated this activity while she was trying to sleep later that day, and on one occasion, he had a gun with him and told her he would kill her if she told anyone.  According to C.D.S., appellant sexually abused her once or twice a week, usually in the family=s home, until July 2003.  Patti Stepp testified that C.D.S. told her that appellant was sexually abusing her at this time, but Patti=s only action in response was to tell her sisters about the matter. 

On July 9, 2003, Patti=s sister Vicki Cameron and two of Cameron=s children spent the night at the Stepps= home because Cameron was taking S.S. to a gymnastics camp in Oklahoma early the next morning.  Cameron slept in S.S.=s room, which shared a bathroom with C.D.S.=s room.  The bathroom had two doors, one connecting it to C.D.S.=s bedroom and another connecting it to S.S.=s bedroom.  Each bedroom also had a door that opened onto the same hallway. 

C.D.S. testified that she was asleep in her own room that night when she was awakened by appellant.  According to C.D.S., appellant locked her bedroom door and the door between the bathroom and S.S.=s room and told her to Aget ready,@ a phrase he used before incidents of sexual abuse.  She testified that appellant then penetrated her sexual organ with his for three to four minutes before he stopped and wiped both of them with tissue paper.  She stated that as she and appellant were dressing, Cameron called C.D.S.=s name from outside the door that separated C.D.S.=s room from the hallway.  C.D.S. testified that appellant then signaled to her to open the door connecting S.S.=s room to the bathroom, and she did so. According to C.D.S., Cameron then entered the bathroom from S.S.=s room and C.D.S. went to bed.        

Cameron testified that she awoke in the very early hours of July 10, 2003 to use the bathroom but found the bathroom door locked.  She testified that she knocked and called for C.D.S. to unlock the door, and although she received no response, she heard someone moving around.  She then went into the hallway and knocked on C.D.S.=s bedroom door.  She attempted to open that door, but it was locked and someone on the other side held the handle so it would not move.  When Cameron went back to the bathroom door, C.D.S. had unlocked it and Cameron briefly spoke to her without entering her bedroom.  However, Cameron testified that when she was using the bathroom, she heard C.D.S.=s bedroom door open and close.  Hearing this upset Cameron, and she had difficulty falling asleep immediately afterwards.  She testified that while lying in bed awake, she heard appellant go to C.D.S.=s room and tell her that he needed to speak to her briefly.  Shortly afterwards, appellant walked into the room where Cameron was in bed and told her that C.D.S. could go with her on the trip to Oklahoma the following morning.  Later that day, Cameron told two of her sisters that she suspected appellant was sexually abusing C.D.S.  These sisters contacted the authorities, but did not discuss their suspicions with Patti Stepp.

Appellant testified that he visited C.D.S.=s room twice that night: first to discuss the possibility of allowing her to join her aunt and sister on the planned trip the following day, and again to inform her that she had permission to go.  Appellant further testified that during the time between these visits, he watched television briefly, folded a load of laundry, and discussed with his wife whether to allow C.D.S. to go on the trip.  He denied locking any doors upon entering C.D.S.=s room and stated that C.D.S. habitually forgot to unlock the door connecting S.S.=s room to the bathroom.  He admitted that he prevented Cameron from entering C.D.S.=s room by holding the handle of the bedroom door and stated that he did so because he did not want to see Cameron in her nightclothes.  According to appellant, he informed Cameron after the second visit that C.D.S. would be allowed to join her on the trip.

S.S. testified that she slept in C.D.S.=s room on the night of July 9, 2003, and that appellant only entered the room to tell C.D.S. she could go on the trip planned for the next day.  However, Cameron=s daughter, S.C., testified that she saw S.S. wearing her pajamas and lying on a sofa in the bedroom that appellant and Patti Stepp shared on the first floor of the family=s home.  C.D.S. also testified that S.S. slept downstairs that night.

C.D.S. went to the gymnastics camp in Oklahoma with her sister and aunt, but did not discuss the events of the previous night.  On her return to Texas, she met with caseworkers from Child Protective Services and told them about appellant=s sexual abuse.

Caseworker Andrea Chatman^[1] was initially assigned to the case.  She interviewed C.D.S. on July 22, 2003 and determined that the child had been sexually abused.  Forensic interviewer Ivy Biggs Syon^[2] then conducted a detailed recorded interview.  On the same day,

Dr. Margaret McNeese examined C.D.S. and determined that there was a transection, or healed laceration, through her hymen.  According to Dr. McNeese, the transection occurred more than one or two weeks before the examination and was caused by penetration and stretching rather than tampon use or masturbation.  She also testified that such transections cannot be caused by sports such as horseback riding or gymnastics.  Finally, Dr. McNeese testified that transections and clefts are completely different.

After the interviews and examinations on July 22, 2003, C.D.S. was placed in an emergency temporary shelter and never resided with the Stepps again.  Detective Leslie McFarland, who assisted in the investigation, testified that no attempt to collect DNA evidence was made because the complainant and the suspect lived in the same home and more than seventy-two hours had elapsed from the time of the alleged incident.  Detective McFarland interviewed the Stepps, viewed C.D.S.=s interview, and eventually presented the case to the Child Abuse Unit of the Harris County District Attorney=s office. 

Appellant was indicted for aggravated sexual assault of a child in February 2004.  A year later, the first trial of this case ended in a mistrial when the jury was unable to reach a verdict.  In April 2005, the case was retried.

During the second trial, appellant offered the testimony of Dr. Robert Franklin, who reviewed the results of Dr. McNeese=s examination.  Dr. Franklin described a cleft on C.D.S.=s hymen.  He testified that a cleft and a healed transection may be the same thing, and a cleft can be a normally occurring variation.  He could not provide an opinion as to whether penetration had occurred, but stated that tampons and certain sports can damage the hymen.  He further testified that C.D.S.=s condition was Aconsistent with maybe manipulating herself.@  Finally, he testified that C.D.S.=s annular ring, which surrounds the hymen, appeared to be small.  According to Dr. Franklin, this finding is inconsistent with penetration.

Patti Stepp testified that C.D.S. occasionally had fallen during gymnastics training and landed straddling the balance beam.  She also testified that C.D.S. had engaged in excessive masturbation since she was first adopted by the Stepps.  Finally, Patti testified that a few days after C.D.S. had her first period in June 2003, she discovered that some of her large tampons had been used.

The jury found appellant guilty as charged in the indictment.  The trial court denied appellant=s motion for new trial, and assessed punishment at twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  This appeal ensued.

II.  Issues Presented

Appellant presents six issues for our review.  First, he contends the evidence is factually insufficient to prove he committed aggravated sexual assault of a child.  Second, he argues the trial court erred by allowing the prosecutor to use his invocation of his Fifth Amendment right to counsel against him.  Third, appellant asserts the trial court erred in allowing Andrea Chatman to testify as an outcry witness pursuant to article 38.072 of the Texas Code of Criminal Procedure.  In his fourth and fifth issues, appellant contends that his trial counsel was ineffective for failing to (a) object to C.D.S.=s testimony that appellant threatened her with a gun during one instance of sexual abuse, and (b) properly object to the introduction of extraneous offenses beyond the scope of a pre-trial order.  Finally, appellant argues that he was denied effective assistance of counsel based on the totality of his defense counsel=s errors.

III.  Analysis

A.      Factual Sufficiency of the Evidence

In his first issue, appellant challenges the factual sufficiency of the evidence to prove he sexually assaulted C.D.S.  When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)).  Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  We do not reevaluate the credibility of witnesses or the weight of the evidence, and will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  Finally, we must discuss the most important and relevant evidence that supports the appellant=s argument on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant contends that the jury=s verdict Arests upon the continually changing story of a troubled teen and experts who specialize in >making= child abuse cases.@  In support of these contentions, appellant cites evidence that C.D.S. was sexually abused before her adoption and has displayed a number of problematic behaviors since that time.  Appellant also points out that C.D.S. never mentioned a gun until the second trial, and quotes a therapist who testified that, AIn general, if people aren=t telling the truth, the story tends to change.@ However, we are not free to reevaluate the credibility of the witnesses.  See Johnson, 967 S.W.2d at 412.  Appellant had the opportunity to impeach the adverse witnesses at trial, and the jury made its own credibility determinations.  See id.  We have no basis on which to disregard that determination on appeal.

Appellant next contends that the abuse could not have occurred as alleged because his work schedule left him with no opportunity to abuse C.D.S. as frequently as she claimed.  He further argues that other members of the household were always present and would have heard any abuse if it occurred as C.D.S. described.  Again, this is a question of credibility that lies within the jury=s province, and we cannot accept appellant=s arguments without impermissibly substituting our judgment for that of the jury.  See id.

Although the evidence is conflicting, the testimony of C.D.S., Cameron, Dr. McNeese, and Chatman support the verdict.  On this record, we cannot say that the great weight and preponderance of the evidence contradicts the jury=s verdict.  We therefore overrule appellant=s first issue.

B.      References to Appellant=s Request for Counsel

In his second issue, appellant argues that the trial court erred by allowing the prosecutor to use his invocation of his Fifth Amendment right to counsel against him.  This argument concerns a line of questioning that began during defense counsel=s cross-examination of Detective McFarland about her interview of appellant:

Defense Counsel:   Did you bother to get a written statement from him?

McFarland:            He said he wanted to see an attorney.

Defense Counsel:   Are you sure that he said he wanted to see an attorney that night?

McFarland:            He said before we did anything further, he would prefer to talk to an attorney.

Defense Counsel:   I want to ask you to look at your report , if you would, please, ma=am.  And if there is anything in there that points out that he requested to speak with an attorney, I would like for you to find that. 

Your Honor, if it takes too much time, I=ll withdraw that question.  I don=t think that the jury=s . . .

McFarland:            I found it.

Defense Counsel:   That=s okay.  I=ll withdraw the question.

On redirect examination, the following exchange occurred between the State and Detective McFarland:

State:                    Detective, I=m going to show you what I=ve marked just for identification purposes as State=s Exhibit 14, which is your offense report.  Defense counsel asked you about the defendant wanting to speak to a lawyer before he made a statement and where it is in the report.

Defense Counsel:   Objection.  I withdrew that question.

The Court:             Overruled.

State:                    Did you find it in your report?  I will show you your offense report, which is State=s Exhibit 14.  Do you see there in your report that you noted that the defendant wanted to talk to an attorney before he gave any other cooperation or statement?

McFarland:            Yes, sir.

State:                    Pass the witness, Judge.

We are unable to identify the alleged error concerning this testimony.  Although his stated issue complains of trial court error, the testimony regarding appellant=s stated intent to consult an attorney was volunteered by a witness and initially pursued by the defense attorney.  The prosecution then repeated a question previously asked and withdrawn by the defense.  No substantive objections were made to any of the testimony, nor does appellant cite any indication in the record that the testimony was the subject of a motion to exclude.  Appellant does not contend that the trial court was required, sua sponte, to instruct the witness not to answer such questions or to instruct the jury to disregard her answers; thus, appellant has identified no actions by the trial court that arguably are erroneous.  

In support of this issue, appellant relies on Kalisz v. State, 32 S.W.3d 718 (Tex.App.CHouston [14th Dist.] 2000, pet. ref=d), in which we stated, AAn individual may not be penalized for exercising his Fifth Amendment rights when he is under police investigation; evidence of his invocation of his right to counsel is inadmissible as evidence of guilt.@  Id. at 721.  Despite its broad language, Kalisz does not purport to extend federal constitutional rights, nor does it stand for the proposition that the constitutional right to counsel attaches when one becomes the subject of a police investigation.  Rather, this language must be understood in context.  In Kalisz, the appellant was arrested for driving while intoxicated and transported to the city jail.  Id. at 720.  At the jail, officers made a videotape in which the appellant was given his Miranda warnings.  Id.  Based on the conduct of the appellant and the comments of the officers after this point, the videotape gave viewers the impression that the appellant had invoked his right to counsel.  Id. at 723.  Not only did the appellant dispute the admissibility of the videotape both before and during trial, the evidence it recorded was collected during custodial interrogation, after his Fifth Amendment rights had attached.  Id. at 720B21. 

In deciding Kalisz, we followed Hardie v. State, in which the Court of Criminal Appeals held that a defendant=s invocation of the federal right to counsel during custodial interrogation is inadmissible as evidence of guilt.  807 S.W.2d 319, 322 (Tex. Crim. App. 1991).  Here, however, appellant does not contend that his reference to an attorney was made during a custodial interrogation;^[3] thus, the application of Kalisz is unclear.  Moreover, appellant cites no authority for the proposition that we may reverse a conviction in the absence of an identified error.

After reviewing the record and construing appellant=s brief liberally, we are unable to identify an act or omission by the trial court that corresponds to appellant=s argument.  We therefore hold appellant=s second issue is waived.  See Tex. R. App. P. 38.1(h).

C.      Admission of AOutcry@ Statement

In his third issue, appellant contends the trial court erred in admitting the hearsay testimony of Andrea Chatman under Article 38.072 of the Texas Code of Criminal Procedure.  This provision creates an Aoutcry exception@ to the hearsay rule in prosecutions of sexual offenses committed against a child twelve years of age or younger.  Article 38.072 provides that outcry testimony from the first adult other than the accused to whom the child made statements describing the alleged offense will not be treated as hearsay if certain requirements are met.  Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).  Appellant claims the trial court abused its discretion in admitting outcry testimony from Andrea Chatman because C.D.S. was thirteen years old on the date of the charged offense, and because Cameron, not Chatman, was the first adult to whom C.D.S. made statements describing the alleged offense.

To preserve a complaint for appellate review, a party must make a timely, specific objection and obtain a ruling.  Tex. R. Evid. 103(a)(1).  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  The error alleged on appeal must correspond to the objection made at trial.  Id.  Because appellant failed to object to Chatman=s testimony in the trial court on either of the grounds now asserted, these arguments are waived.  Tex. R. App. P. 33.1(a).  Moreover, even if error had been properly preserved, the improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial.  Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (en banc).   The record demonstrates that Chatman testified regarding C.D.S.=s statements to her about the charged offense, and C.D.S. offered substantially the same evidence without objection; thus, Chatman=s hearsay testimony was cumulative of other properly admitted evidence.  See id.  We overrule appellant=s third issue.

D.      Ineffective Assistance of Counsel

Appellant=s fourth, fifth, and sixth issues relate to the effectiveness of his trial counsel.  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, 80 L. Ed. 2d 674 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687, 104 S. Ct. at 2064.  To establish both prongs, an appellant 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  690B94, 104 S. Ct. at 2066B68.  An appellant=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, 56B57 (Tex. Crim. App. 1986) (en banc).

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.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When, as in this case, 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 A>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)).    

1.       Failure to Object to C.D.S.=s Testimony Regarding a Gun

In his fourth issue, appellant contends his trial counsel was ineffective for failing to object to C.D.S.=s testimony that, during at least one episode of sexual abuse, appellant exhibited a gun.  In order to argue successfully that his trial counsel=s failure to object to this testimony amounted to ineffective assistance, appellant must show that the trial court would have erred in overruling the attorney=s objection to the testimony.  See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (en banc) (per curiam).  Appellant has identified no specific objection that his trial counsel should have made, and offers no argument or authority indicating that the trial court would have erred in overruling an objection to this testimony.  This argument is therefore waived.  See Tex. R. App. P. 38.1(h).

Appellant next contends his trial counsel was ineffective because he failed to properly impeach C.D.S. about the change in her testimony from the first trial to the second trial.  The relevant testimony is as follows:

Defense Counsel:   Now, do you recall having givenCpreviously giving sworn testimony in this case?

C.D.S.:                  Yes.

Defense Counsel:   And in that sworn testimony, did you say anything about a gun?

C.D.S.:                  I don=t think so.

Defense Counsel:   And why are you suddenly now saying that there was a gun involved?

C.D.S.:                  Because there was.

Defense Counsel:   And when he would do this to you with the gun, what would he do with the gun?

C.D.S.:                  That was one time.

Defense Counsel:   What would he do with the gun, though?

C.D.S.:                  He was holding it.

Defense Counsel:   So, as he=s doing this to you, he was holding the gun?

C.D.S.:                  No.  He put it down.  He was holding it as he got me out of bed.

We cannot agree that this cross-examination could not have been motivated by sound trial strategy or represents conduct so outrageous that no competent attorney would have engaged in it.  Although appellant insists that his counsel should have impeached C.D.S. further, we are not persuaded that this gentler cross-examination of a minor, who has allegedly been the victim of sexual abuse almost since infancy and who was being cross-examined as the principal witness in the prosecution of her father, falls outside the bounds of objectively reasonable representation. 

Appellant also contends that defense counsel erred by using the word Agun@ six times in the exchange quoted above and by asking another witness if C.D.S. ever spoke of a gun; however, appellant cites no authority for the proposition that these actions could not constitute sound trial strategy. 

On the record before us, we hold that appellant has failed to overcome the presumption that his defense counsel=s actions were reasonably professional and were motivated by sound trial strategy.  We therefore overrule appellant=s fourth issue.

2.       Failure to Object to Extraneous Offense Evidence

In his fifth issue, appellant contends his trial counsel was ineffective for failing to timely object to the introduction of extraneous offenses beyond the scope of a pre-trial order.  The order at issue was the result of appellant=s pre-trial objections to the State=s identification of Ivy Biggs Syon and Andrea Chatman as outcry witnesses.  The trial court partially sustained appellant=s objections to their testimony, and in a handwritten addition to the court=s order, stated Awit. will on direct testify only to events of the last year from the date of the outcry statement.@

Because the appellant=s objection concerned only the testimony of Syon and Chatman, the order partially granting his objection pertained only to them, and not to the complainant.  On appeal, however, appellant complains that his trial counsel failed to object to testimony from C.D.S. that allegedly violated this order.  In support of this argument, appellant points to the following exchange that occurred during a bench conference regarding C.D.S.=s testimony:

Court:          [T]he order is that . . . the witness will be allowed to testify on direct only to the extent of the last year from the date of the outcry.  We=ve gone further than that now.

State:                    Much further.

Defense Counsel:   But it=s getting too far.  It=s going further and further.

State:                    I=m not talking about extraneouses [sic].  I=m only talking about when she told somebody.

Defense Counsel:   This thing is going to open wide open to everything, is what=s going to happen.

State:                    Is that referring to a specific witness, though, Judge, that order?

Court:          Yes, the complainant.

State:                    Judge, we would ask you to reevaluate your order based upon the testimony we=ve already had today.  We=ve already gone into all the extraneouses [sic], what=s happened her whole life in regard to this sexual abuse.

Defense Counsel:   We=ve not gone into all that.  I mean, this was the first attempt by the State to elicit information with regard to complaints that had occurred before that were recanted.         

Appellant complains that his defense attorney objected to C.D.S.=s testimony regarding extraneous offenses that were more than a year old only on the grounds that the questions eliciting the testimony were Aleading@; according to appellant, his attorney should also have objected on the grounds that C.D.S.=s testimony violated the pretrial order. 

Despite the trial court=s misstatement, the order at issue limits the outcry testimony of Syon and Chatman, but does not purport to limit C.D.S.=s testimony regarding facts within her personal knowledge; thus the trial court would not have erred in overruling an objection on such grounds.  See Vaughn, 931 S.W.2d at 566. 

We overrule appellant=s fifth issue.

3.       Totality of Representation

In his sixth issue, appellant argues that, considering the totality of his defense attorney=s errors, he was denied the effective assistance of counsel.  Specifically, appellant contends that three instances, taken together, constitute ineffective representation. 

First, appellant argues that his attorney was ineffective for failing to object to C.D.S.=s testimony.  As explained above, appellant has not demonstrated that his attorney failed to make a sustainable objection to this evidence. 

Appellant also complains that his trial counsel failed to successfully introduce an email appellant printed from his computer.  Appellant testified that the email was written by C.D.S.  After the State objected to the evidence on the grounds that the defense had not presented a proper predicate for its admission, the trial court conferred with counsel out of the jury=s presence.  During that conference, the trial court asked how defense counsel knew that C.D.S. had written the email, and defense counsel accurately responded that appellant said only that he had retrieved it from his computer and that the email bore C.D.S.=s name.  The trial court asked, AWell, isn=t it just as possible that he wrote this?  It=s his computer and her name is under A>Subject.=@ Appellant=s defense counsel responded, AI guess anyone could have written it.@  The trial court then sustained the State=s objection.  The email is not in the record, and appellant does not contend that another course of action by defense counsel would have rendered the evidence admissible. 

Finally, appellant complains in general terms about defense counsel=s failure to successfully introduce character evidence regarding C.D.S. from appellant=s adult daughter from a previous marriage.  The trial court sustained the State=s objection to this testimony as improper character evidence.  See Tex. R. Evid. 404, 608(b).  Appellant does not contend that this ruling was erroneous, or explain how his attorney could have successfully introduced this character evidence. 

Whether considered individually or collectively, the defense attorney=s actions provide no basis on which to conclude that appellant received ineffective assistance of counsel.  On this record, the evidence is insufficient to overcome the presumption that appellant=s defense counsel provided reasonably professional representation or to demonstrate prejudice attributable to these alleged errors.

We overrule appellant=s sixth issue.

IV.  Conclusion

We conclude the evidence is factually sufficient to support the jury=s verdict.  We further hold that appellant has failed to demonstrate that he received ineffective assistance of counsel.  Appellant=s remaining issues are waived; therefore, we affirm the trial court=s judgment.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed March 1, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  In the record, this witness=s last name is spelled AChatman@ and AChapman.@  Because Chatman is the form used slightly more often in the record, and the only form used in the briefs, we will use the name stated by the parties.   

^[2]    Ms. Syon is identified in the record alternatively as Ivy Syon and Ivee Syon.

^[3]  Appellant=s interview with McFarland took place at the Children=s Assessment Center (Athe Center@), and according to McFarland, the building houses Children=s Protective Services caseworkers, the Child Protective Services agency, forensic interviewers, a medical clinic, and a psychology department in which children receive therapy.  According to McFarland, appellant was not accused of a crime at that time.  After the interviews, appellant left the Center, and no charges were filed for several months.  There is no indication in the record that appellant=s presence at the Center was involuntary, or that he believed his ability to leave was restricted at any time.  See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (stating that custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest).