Memorandum Opinion of May 25, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed December 5, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00544-CR
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OLLIE ADELAJA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 991,150
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We withdraw our memorandum opinion of May 25, 2006 and substitute the following in its place.
Appellant was convicted of one count of insurance fraud and the court assessed punishment at two years= confinement in a state jail facility.[1] In two issues, appellant contends (1) the evidence is factually insufficient to support his conviction, and (2) he received ineffective assistance of counsel. We affirm.
I. Factual and Procedural Background
On June 10, 2003, appellant reported that two Hispanic men had stolen his 1998 Toyota Camry at gunpoint. Appellant filed an insurance claim on the car the same day. On November 10, 2003, after an investigation, appellant=s insurance company paid $6,783.27 for the car and paid an additional $476.79 to the lien holder.
On April 19, 2004, John Kim attempted to obtain title on the 1998 Camry. Because the car had been reported stolen, the Department of Transportation contacted Sergeant Eric Williams of the Department of Public Safety. Sergeant Williams contacted Kim and discovered Kim had purchased the car from Woong Kang. Kang told Williams that appellant brought the Camry into his automobile repair shop for repairs in March 2003. Kang informed appellant that the engine needed to be replaced and the cost would be $1700. According to Kang, appellant said he could not afford the repairs and told Kang to hold the car until he could pay for the new engine. Kang testified that appellant did not pay for the engine, so Kang replaced the engine at his own cost and sold the car to Kim. Kang testified the car never left the shop until he sold it, and he did not know that the car had been reported stolen.
Appellant testified that he did not leave his car with Kang, and did not know how the car ended up in Kang=s repair shop. Appellant claimed that two Hispanic men took his car at gunpoint. To rebut Kang=s testimony that the car was in the repair shop, appellant=s uncle testified that appellant drove him to work in the Camry on June 7 and 8, 2003. A friend of appellant testified he had seen the Camry in a church parking lot during the first week of June, before appellant reported the car stolen.
A jury convicted appellant of insurance fraud, and after he was sentenced by the trial court, appellant moved for a new trial, citing only Athe interest of justice.@ The motion was denied, and this appeal ensued.
II. Discussion
A. Factual Sufficiency of the Evidence
In his first issue, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant argues Kang=s testimony was not credible. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). 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, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Although we examine all of the evidence presented at trial, we may not re‑weigh the evidence or substitute our judgment for that of the jury. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc). Unless the record clearly reveals a different result is appropriate, we Amust 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.@ Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (en banc).
A person commits the offense of insurance fraud if, with intent to defraud or deceive an insurer, the person presents a statement for a claim to an insurer that he knows to contain false and misleading material information. See Tex. Penal Code Ann. ' 35.02 (Vernon Supp. 2005). Kang testified appellant took his car to Kang=s shop in March 2003, and the car never left the shop until it was sold to Kim. Appellant testified his car was stolen at gunpoint on June 10, 2003, and denied having left the car with Kang. Appellant further presented the testimony of two witnesses who stated they had seen appellant with his car one week before appellant=s report of the alleged theft.
Appellant argues the verdict is against the great weight and preponderance of the evidence because Kang=s testimony was not credible. Appellant points out that Kang did not remember whether appellant=s vehicle was towed to his shop and that he replaced the engine in the car without a written work order, a request from appellant, or any payment. Appellant further argues Kang is not credible because he did not properly file a mechanic=s lien prior to selling the car to Kim.
The jury is the sole judge of the weight and credibility to be given to witness testimony. Johnson, 23 S.W.3d, at 7. A jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. Although there was conflicting evidence, the jury chose to believe Kang=s testimony that appellant brought the car to his repair shop in March 2003 and the car never left the shop until Kang sold it to Kim. When recovered, the car showed no evidence of damage, but in conformity with Kang=s version of events, the vehicle and the engine had different identification numbers.[2] In addition, Sergeant Williams testified that when he contacted appellant and told him the vehicle had been recovered, appellant said he did not need to talk with the police, repeatedly stated that he had already settled his claim with his insurance company, showed no interest in apprehending the persons who committed the alleged robbery, and refused to sign a written statement.
Based on the evidence presented, the jury could have concluded that when appellant filed the insurance claim on the car, he knew the claim was false and intended to deceive the insurer. After reviewing the record, we cannot say that the great weight and preponderance of the evidence contradicts the jury=s verdict. See Watson, No. PD-469-05, 2006 WL 2956272, at *10.
Appellant=s first issue is overruled.
B. Was Appellant Denied Effective Assistance of Counsel?
In his second issue, appellant contends he was denied effective assistance of counsel because his trial counsel failed to object to certain testimony and elicited improper opinion testimony that the police did not believe appellant=s version of events. To prevail on a claim of ineffective assistance of counsel, an appellant must show: (1) his attorney=s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability the result of the trial would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693B94, 104 S. Ct. 2052, 2067B68, 80 L. Ed. 2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001). To satisfy the first Strickland prong, the appellant must (1) rebut the presumption that counsel is competent by identifying the acts or omissions of counsel that are alleged as ineffective assistance and (2) affirmatively prove that such acts or omissions fell below the professional norm of reasonableness. McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App.1996) (en banc), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997), overruled on other grounds, Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (en banc), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999). To satisfy the second prong of Strickland, the appellant must show the probability that the alleged errors caused a different trial result than would have otherwise occurred is sufficient to undermine confidence in the outcome of the proceedings. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (en banc). In our review, we indulge a strong presumption that counsel=s actions were motivated by sound trial strategy, and we will not conclude the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351, 154 L. Ed. 2d 1030 (2003).
Appellant argues that police opinion testimony that appellant was not telling the truth was objectionable under Rules 701 and 702 of the Texas Rules of Evidence.[3] See Tex. R. Evid. 701 (governing opinion testimony by lay witnesses); Tex. R. Evid. 702 (addressing expert testimony); Yount v. State, 872 S.W.2d 706, 709, 711 (Tex. Crim. App. 1993) (en banc) (holding that Aexpert testimony that a particular witness is truthful is inadmissible under Rule 702.@); Matter of G.M.P., 909 S.W.2d 198, 206 (Tex. App.CHouston [14th Dist.] 1995, no writ) (AA determination of who is telling the truth is the sole province of the jury.@). Because trial counsel elicited or did not object to such testimony by Williams, appellant contends his counsel rendered ineffective assistance.
For example, appellant argues that Detective Dennis Matties Atestified without objection that he thought that Williams told Matties that he did not believe appellant=s explanation.@ But, this argument misstates the testimony, which was transcribed as follows:
Defense Counsel: Did Sergeant Williams tell you back on July 8, 2004 that the Defendant, that he had gotten a statement from the Defendant and the Defendant admitted the vehicle was in the possession of his mechanic at the time of the robbery?
Detective Matties: Yes.
Defense Counsel: Pass the witness.
Prosecutor: Do you remember the specifics of that conversation without your offense report?
Detective Matties: No I do not.
Prosecutor: Is it possible that OfficerCexcuse me. Sergeant Williams told you that he believed that the Defendant had recanted his statement?
Detective Matties: Yes.
Prosecutor: Did he specifically tell you or can you say from your own personal memory whether he specifically told you that the Defendant had recanted his story about the robbery I mean?
Detective Matties: No.
Prosecutor: So it=s possible that he just told you something along the lines of this guy is telling me one thing and I don=t believe him?
Detective Matties: Yes.
Prosecutor: It=s possible he told you this guy is telling me one thing and all the other evidence says something else. It=s possible that that=s what he told you isn=t it?
Detective Matties: Yes.
Here, appellant=s trial counsel attempted to attack Sergeant Williams=s credibility with evidence that Williams falsely told Matties the appellant had recanted his earlier description of the robbery. In response, the State elicited testimony that Matties had no independent recollection of Williams=s statement, and also questioned Matties regarding other possible reasons why Matties might concluded he need not investigate the robbery further after speaking with Williams. At best, Matties testified Williams might have said he disbelieved appellant. This testimony was offered only to show that such a statement might have been made, not that Williams in fact disbelieved appellant. Accordingly, an objection to this testimony based on Texas Rule of Evidence 701 or 702 would have been properly overruled. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (en banc) (stating that, in order to argue successfully that trial counsel=s Afailure to object to the State=s questioning and argument amounted to ineffective assistance, appellant must show that the trial judge would have committed error in overruling such an objection.@).[4] Appellant also argues his trial counsel elicited testimony that Williams believed Kang rather than appellant. The actual exchange was as follows:
Defense Counsel: What caused you to I guess put more credibility in Mr. Kang=s version of events given the totality of versions versus Mr. Adelaja?
Sergeant Williams: It=s what you said the totality of the evidence.
As the record reflects, appellant=s trial counsel asked a question that assumed Williams found Kang=s version of events more credible than Williams=s version of events. But, the question itself is not testimony, and the answer did not state an opinion. In addition, Sergeant Williams stated he found Kang=s Aversion of events@ credible based on Athe totality of the evidence@; he did not state that Kang himself was credible or that appellant was not credible. Hence, we are not persuaded that the trial court would have erred in overruling an objection to this exchange on the grounds that it impermissibly expressed an opinion on the credibility of these witnesses in violation of Texas Rule of Evidence 701 or 702.
According to appellant, Sergeant Williams also testified without objection that he did not believe Kang stole the car, and was convinced there was not a robbery. That testimony is as follows:
Prosecutor: So at this point has he [Kang] both identified him byCMr. Adelaja by name by photo spread?
Sergeant Williams: That=s correct.
Prosecutor: At that point did you suspect that Mr. Kang had stolen the vehicle?
Sergeant Williams: No.
Prosecutor: Why not?
Sergeant Williams: Based upon that extent of my investigation I believe that Mr. Kang had come into possession of the vehicle by the person, known person, the Defendant Mr. Adelaja.
Here, Sergeant Williams testified that at a certain time, he did not consider Kang a suspect. Williams=s testimony does not state his opinion regarding appellant=s truthfulness. Notably, the only Abelief@ Williams identified in this statement is his belief that Kang Ahad come into possession of the vehicle by [appellant].@ Moreover, Williams attributes this belief to his own investigation, and not to the appellant=s truthfulness or lack of same. This investigation included the examination of the car, which was undamaged and which had a replacement engine.
Appellant also points to the following testimony in support of his argument that opinion evidence was improperly admitted:
Prosecutor: Were you convinced at this point that an aggravated robbery had not occurred?
Sergeant Williams: Yes, I was.
Prosecutor: And what was that based on?
Sergeant Williams: It was based upon the prior interview that I had with Mr. Kim as well as Mr. Kang, the reviewing of the offense report as well as the vehicle itself.
Here, Williams implies that the statements of Kim and Kang and the condition of the vehicle were inconsistent with the appellant=s report of an aggravated robbery. Based on this information, Williams concluded that an aggravated robbery did not occur. Again, Williams did not state his opinion regarding the credibility of Kang or appellant, but testified that he reached this conclusion based on his interviews of Kim and Kang and his review of the offense report and the vehicle. Moreover, the quoted testimony does not indicate that Williams had even spoken to appellant at this time.[5]
Because the challenged testimony does not contain expressions of opinion regarding the witnesses= credibility, appellant=s trial counsel did not fall short of professional standards by failing to object to it. Assuming, however, that the testimony could properly be characterized as opinion testimony on the issue of credibility,[6] we cannot say, based on the record before us, that counsel was ineffective.
In reviewing the record for ineffective assistance of counsel, we begin with the strong presumption that the trial counsel=s actions Afell within the wide range of reasonable and professional assistance.@ Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We will reverse a conviction if Athe record demonstrates that no plausible purpose was served@ by the challenged acts or omissions. See Ramirez v. State, 987 S.W.2d 938, 945 (Tex. App.CAustin 1999, pet. ref=d). But, it is rare that the trial record contains sufficient information to permit a reviewing court to fairly evaluate a claim of ineffective assistance of counsel. Bone, 77 S.W.3d at 833. If trial counsel=s actions may have been the result of tactical decisions, but the record contains no specific explanation for counsel=s decisions, we will not normally conclude that counsel was ineffective. Id. at 830. Moreover, trial counsel Ashould ordinarily be afforded an opportunity to explain his actions before being denounced@ for providing representation below an objective standard of reasonableness. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (en banc). AAbsent such an opportunity, an appellate court should not find deficient performance 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, 57 S.W.3d, at 440 (Tex.).
Moreover, appellant is not guaranteed error-free representation; rather, he is entitled to Areasonably effective assistance@ of counsel. Strickland, 466 U.S. at 687B88, 104 S. Ct. at 2064. AThe constitutional right to counsel does not mean errorless counsel whose competency or accuracy of representation is to be judged by hindsight.@ Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc). Isolated failures to object to improper evidence do not constitute ineffective assistance of counsel. Id. We instead look Ato the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel.@ Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Here, appellant points to no evidence in the record explaining trial counsel=s motives for allowing or eliciting testimony indicating that Sergeant Williams did not believe appellant=s version of events. There is no direct evidence in the record explaining why appellant=s trial counsel permitted such testimony, and the record does not A>affirmatively demonstrate= the meritorious nature of the claim.@ Goodspeed, 187 S.W.3d at 392 (citing Thompson, 9 S.W.3d at 813). Thus, appellant is unable to Aovercome the presumption that, under the circumstances, the challenged action >might be considered sound trial strategy.=@ See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
Anticipating this conclusion, appellant argues that A[n]o reasonable trial strategy could ever justify conduct of this nature.@ We disagree. For exampleCand without speculating on trial counsel=s thought processes concerning the specific exchanges at issue[7]Cwe note that the record as a whole indicates that trial counsel generally attempted to show that Williams=s investigation was biased. In his opening statement, appellant=s trial counsel stated that:
[The] evidence will show that Sergeant Williams gets involved in the case and I believe the evidence will show that Sergeant Williams had a single suspect on his mind. He does not do a thorough job. I believe the evidence will show that he did not consider other possibilities. He didn=t consider other conduct of other parties . . . . Sergeant Williams focuses on one person and one person only and does not consider other options.@
Trial counsel restated this theory of the case in a bench conference:
Defense Counsel: When the witness they choose to believe [Kang] is committing a state jail felony in the presence of this officer and admitting it I think it goes directly to the credibility of the officer and the witness.
The Court: He admits it today?
Defense Counsel: I believe so.
Prosecutor: At no point does Mr. Kang admit that he committed this state jail felony offense he=s never been convicted of. He=s never even been charged with it. To use that impeachment evidence for his character is completely outsideC
Defense Counsel: I=m using it to show the bias of this witness [Williams] in his investigation. That=s what [I] want to do.
(emphasis added). Although trial counsel=s theory of the case may have required him to show that Williams was biased, we cannot determine, on this record, if this was in fact the reason that trial counsel permitted the specific questions and testimony at issue.[8] Moreover, a reviewing court is not permitted to supply trial counsel=s reasoning by mere speculation. See Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) AWhatever trial counsel=s reasons may have been for pursuing the chosen course, in the absence of a record identifying these reasons, we must presume they were made deliberately as part of sound trial strategy.@ Id. at 209. In sum, we cannot conclude on this record that the actions of appellant=s trial counsel were inconsistent with any plausible purpose or fell outside the range of reasonable and professional assistance.
Appellant=s second issue is overruled.
III. Conclusion
Because the record on appeal does not demonstrate that the evidence was factually insufficient to sustain the conviction or that appellant=s trial counsel rendered ineffective assistance, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Substitute Memorandum Opinion filed December 5, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The trial court suspended the sentence for four years.
[2] The original engine had been replaced with a 1997 Toyota engine.
[3] In the transcript of the trial proceedings, Williams is not referred to as an expert, and the clerk=s record does not contain the State=s witness list. As a result, we are unable to ascertain whether Williams=s challenged testimony was offered as a lay or expert opinion.
[4] Appellant also complains of his trial counsel=s failure to raise similar objections to a portion of the State=s closing argument in which the prosecution said that Sergeant Williams testified he Alooked at what Mr. Kim was telling me, what Mr. Kang was telling me and it didn=t add up and I didn=t believe it.@ This statement by the prosecutor is argument and not opinion testimony, and although the quoted portion of this argument goes beyond Williams=s testimony, appellant does not contend that trial counsel rendered ineffective assistance by failing to object on this basis. Moreover, a proper jury argument may draw reasonable deductions from the evidence and answer the arguments of opposing counsel. See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Thus, we disagree with appellant=s suggestion that an objection to this argument was both required and sustainable.
[5] The record indicates that the lines of questioning that appellant challenges on appeal were apparently intended to determine the time at which appellant became a suspect. Specifically, appellant=s trial counsel attempted to show that Williams=s investigation was biased, because Williams decided that Kang=s version of events was accurate without performing a thorough investigation. Moreover, appellant=s trial counsel pursued this line on cross-examination, and appellant does not contend that the following exchange contains any acts or omissions by his trial counsel:
Defense Counsel: Now, based on your discussions with Kang and Kim you formed an opinion before ever talking to my client that he was a primary suspect correct?
Sergeant Williams: No, I didn=t formulate an opinion at that point. It was based upon the statements that was [sic] provided by Mr. Kim and Mr. Kang as well as the aggravated robbery report that was filed by the Houston Police Department. In correspondence with all that information together once I interviewed your client Mr. Adelaja at that point I formulated the opinion that he was the primary suspect.
Defense Counsel: It was after you talked to my client?
Sergeant Williams: After I talked to your client, after he viewed the photo lines up [sic] and he identified Mr. Kang as the person that he had known for several years.
Defense Counsel: Okay. I thought you had testified something to the effect of you believe Mr. Adelaja was a prime suspect after viewing the 2 statements or talking with Mr. Kim and Kang and getting their statements?
Sergeant Williams: Mr. Adelaja was the next person to interview in reference to the case. It was no one else to interview and after obtaining those statements and the initial interview with him it was determined that there was no one else. He was the primary suspect.
Defense Counsel: In your opinion?
Sergeant Williams: In my opinion.
Defense Counsel: Now, wouldn=t you agree when you=re doing an investigation you want to keep an open mind and evaluate the credibility of all the witnesses?
Sergeant Williams: That=s correct.
[6] See Yount, 872 S.W.2d at 709 (stating that allowing experts to testify to credibility or trustfulness, or the lack thereof, would in most cases fall short of expert knowledge that >will assist the trier of fact.=@); Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App. 1981) (AWhenever the jury is in possession of the same information as the witness and the jury can fully understand the matter and draw the proper inferences and conclusions, the witness=s opinion testimony is unnecessary and inadmissible.@).
[7] See Jackson, 877 S.W.2d, at 77.
[8] After Sergeant Williams answered trial counsel=s question as to why he Aput more credibility in Mr. Kang=s version of events given the totality of versions versus Mr. Adelaja,@ trial counsel asked two more questions to which the State objected. After the trial court sustained the State=s objections to both questions, appellant=s trial court asked to approach the bench where the quoted exchanged occurred. Because it is not clear if the two questions to which the trial court sustained objection were intended to be a new line of questioning, the record does not clearly show that this conversation applies to the earlier question as well.