Roger Marcus v. State

• Court: Court of Appeals of Texas
• Decided: November 8, 2007
• Docket: 01-06-00484-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00483-CR

NO. 01-06-00484-CR

ROGER MARCUS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 1025501 and 1053595

MEMORANDUM OPINION

A jury convicted appellant, Roger Marcus, of arson of a building (trial cause no. 1053595 and appellate cause no. 01-06-00483-CR) and insurance fraud (trial cause no. 1025501 and appellate cause no. 01-06-00484-CR). The jury assessed punishment at seven years' confinement and a $10,000 fine for arson, and ten years' confinement and a $10,000 fine for insurance fraud. In six points of error, appellant contends that (1-4) the evidence is legally and factually insufficient to support the conviction for insurance fraud, (5) the trial court erred by denying appellant's motion to suppress his written and oral statements, and (6) trial counsel rendered ineffective assistance. We affirm.

BACKGROUNDThe Fire

On June 15, 2004, appellant purchased the Blessed Again Thrift Store from Tom Coleman for $75,000. Appellant paid $20,000 down, promised to pay another $5,000 within 45 days, and then to pay monthly installments of $1,567 for 36 months. The store was one of several businesses located in a commercial building owned by David Vise. Appellant, a minister, also held church services in a separate ballroom he rented elsewhere in the building. The business struggled. Over the next several months, appellant fell behind in his payments on the business. On March 22, 2005, Coleman evicted appellant, but then allowed him to reenter the property in return for a partial payment of $6,000. Despite his financial difficulties, in January 2005, appellant attempted unsuccessfully to buy the entire building directly from Vise.

In December 2004, appellant had purchased insurance on the store in the amount of $100,000 for the premises and $150,000 for his property, for a total of $250,000. The policy covered damage from accidental fire, but not from arson. Appellant kept the premiums paid, even when he fell behind in his payments to Coleman. Appellant suggested to Coleman that he should get insurance too, but Coleman did not. Appellant was the only occupant of the building who had insurance. Appellant claimed he decided to buy insurance after the roof was damaged in a storm.

In March 2005, appellant complained to Robert Loving that business was bad and said that he needed money to get out and start a new trailer park venture. Appellant asked Loving if he knew anyone who would burn down the store. When Loving replied that he did not associate with people like that, appellant claimed that he was just joking.

Around the same time, appellant had a similar conversation with Stacy O'Daniel, in which he complained of money problems and expressed a desire to collect insurance on the store in order to start a new business. He asked O'Daniel to burn the store, promising her $1000 and a job, and she initially agreed. Appellant showed O'Daniel around the store, pointing out flammable paint thinner. He showed her a back door through which she could enter, instructed her to break the padlock with a crowbar, and told her that the security cameras would be turned off. Meschelle Betros, O'Daniel's friend who was to accompany her on the job, confirmed much of O'Daniel's testimony and added that appellant wanted to "smoke up the place" so that he could collect insurance money. On the night of April 15th, O'Daniel and Betros drove to the store, but got frightened and decided not to go through with the plan.

Appellant then spoke to Quinton Fontenette, a homeless man whom he had previously met at the store. Fontenette agreed to set the fire. He testified that appellant told him to light the clothes near where the paint thinner was stored and assured him that the cameras would be turned off. Appellant promised him $200 and gave him power tools to pawn for cash. A pawn shop owner later testified to seeing a man matching appellant's description drive Fontenette to his store. The shop owner identified the items pawned and produced a receipt.

Testifying at trial, appellant admitted to having conversations with these four witnesses, but said he was just joking or "insinuating" and denied that he ever directly asked anyone to set a fire.

In the days before the fire, appellant discounted prices steeply, even though he had never held such sales before. He also removed televisions and other high-value items from the building.

Shortly after midnight on April 19th, Fontenette entered the building through the back door, breaking the lock as appellant had instructed him. He set fire to the clothes in the storage area and fled. The fire spread and soon engulfed most of the building. Firefighters arrived on the scene and attempted to enter, but were forced to back off when the roof partially collapsed. There were no injuries, but damage to the building was nearly total. Fire investigators quickly concluded the blaze had been intentionally set. They recovered the security camera footage, but found that the system had been turned off two weeks before the fire. Appellant admitted at trial that he had shut off the cameras.

The Investigation

Appellant reports a loss to his insurance agent and speaks to investigators

Appellant arrived at the scene of the fire and spoke with investigator Kuehl. Kuehl testified that their conversation was interrupted when Fontenette approached and appellant left to talk with him privately. According to Fontenette, appellant told him the fire was "perfect." Later that day, appellant called his insurance agent to report that his store had burned and that it was a "total loss." According to the agent, appellant said "I need to file a claim." The agent initiated the claim process. Appellant, however, claims that he merely called to report the loss, but did not actually file a claim.

On April 23rd, fire investigator Tom Frankum, representing Penn-America Insurance, interviewed appellant and other witnesses. According to Frankum, appellant told him he was not aware of anyone who would want to set the fire intentionally.

Appellant gives a statement

On the evening of April 28th, arson investigators called appellant and asked him to come to their office and answer questions. By this point, they had already spoken to Loving and O'Daniel and suspected that appellant might have had some involvement with the fire. Appellant, along with his wife Anne, arrived at the station around 9:25 p.m.

The interview was conducted by senior investigator D. Deutsch, with L. Blevins assisting. Although the exact duration of the interview is unclear, it seems to have lasted approximately two and a half hours. During this interview, appellant produced a written statement, in which he admitted his involvement in the fire. One hour and forty minutes of the interview was recorded on video and audiotape. Deutsch later testified that "within eight minutes" appellant began making statements that indirectly suggested his involvement in the fire. The beginning of their conversation was not recorded, and it is not clear how long they spoke before turning on the tape.

As the tape begins, appellant has already admitted some sort of conversation with Stacy O'Daniel, and Deutsch is speaking of "damage control." Within four minutes, appellant admits speaking to Fontenette, though claiming not to know his name. At nine minutes, appellant admits that he arranged the fire, but denies that insurance money was his motive. At 15 minutes, Deutsch begins encouraging appellant to make a written statement. At 25 minutes, appellant begins writing and the investigators leave him alone in the room. He writes for about 8 minutes, producing the first paragraph on page 2 of State's Exhibit 56, in which he admits to asking Fontenette to set the fire. At this point, Mrs. Marcus first enters the room; she remains for most of the rest of the interview. At 33 minutes, the investigators return to the room, and appellant reads the paragraph out loud. Deutsch asks him to add more specific details about the tools he gave to Fontenette, and he writes those down. After further conversation, at 48 minutes, Deutsch asks appellant to add a physical description of Fontenette, and appellant complies. They converse for another 30 minutes. At 78 minutes, Deutsch turns to the first page of the statement and begins reading to appellant the pre-printed statutory rights. He reads each warning, asks if appellant understands it, and has appellant initial next to it. At 80 minutes, appellant signs his name on page 3 of the statement, and Deutsch and Mrs. Marcus sign as witnesses. They converse for a further 20 minutes. At 100 minutes the interview ends, and everyone present leaves the room.

Appellant "postpones" his claim

Two days later, on April 30th, appellant e-mailed Tom Frankum asking him to "postpone" his insurance claim. On May 2nd, appellant was charged with arson and insurance fraud. Fontenette, meanwhile, pleaded guilty to the arson; he later testified for the State at appellant's trial.

Appellant moves to suppress his statement

At trial, the defense moved to suppress appellant's written statement as well as the video and audio tapes. The trial court conducted a suppression hearing outside the presence of the jury. After hearing testimony from investigators Deutsch and Blevins as well as from appellant, the court ruled the evidence admissible. At trial, the statement was read and portions of the tape were played for the jury.

Legal and Factual Sufficiency of Insurance Fraud Conviction

In points of error one and two, appellant argues that the evidence is legally insufficient to support his conviction for insurance fraud; in points three and four, he argues that the evidence is factually insufficient. ⁽¹⁾

Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We consider all the evidence presented at trial, whether it was properly or improperly admitted. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). We may not re-weigh the evidence and substitute our judgment for that of the factfinder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

At the time of the offense, the relevant portions of Tex. Pen. Code Ann. § 35.02 read as follows:

(a) A person commits an offense if, with intent to defraud or deceive an insurer, the person causes to be prepared or presents to an insurer in support of a claim for payment under a health or property and casualty insurance policy a statement that the person knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects a person's right to a payment or the amount of payment to which a person is entitled.

(c) For purposes of Subsection (a), information concerning a matter that is material to a claim for payment under an insurance policy includes information concerning:

(8) whether property was damaged or lost in the manner and under the circumstances described in a statement related to a claim for insurance payment. ⁽²⁾

In this case, the false statement that formed the basis for the charge of insurance fraud was appellant's oral declaration to insurance investigator Tom Frankum that he was "not aware of anyone wanting to intentionally set a fire" in his business. The statement was related to the insurance claim appellant had initiated when he called his agent to report the loss. Because the policy would pay for accidental fires but not for deliberate arson, this statement was material and affected his claim for payment. ⁽³⁾ Four witnesses testified that appellant asked them to set a fire; two of these (O'Daniel and Betros) recalled that he specifically mentioned collecting insurance money.

In addition to the witness testimony, ample circumstantial evidence supported the inference that appellant planned the fire in order to commit insurance fraud. A defendant's intent may be inferred from his actions, words, and conduct. Nguyen v. State, 177 S.W.3d 659, 664 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). In Nguyen, the defendant falsely reported to her insurance agent that her car had been stolen, when in fact she had destroyed it, and filed documents in order to make a claim. Id. When combined with evidence of what had actually happened to the car, this was sufficient for a rational factfinder to infer that she intended to commit insurance fraud. Id. at 664-65.

The elements of insurance fraud, including the intent to defraud, can be inferred from circumstantial evidence. See Logan v. State, 48 S.W.3d 296, 301-02 (Tex. App.--Texarkana 2001), aff'd on other grounds, 89 S.W.3d 619 (Tex. Crim. App. 2002); Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.--Dallas 1999, no pet.). In Obigbo, the sheer implausibility of the defendant's insurance claim--that expensive clothes worth $10,000, a sum that conveniently matched his policy limits, were stolen from his rental car, although nothing else was stolen, and that he happened to have receipts for them, when he appeared to lack the means to purchase such items, and the stores shown on the receipts did not actually exist--could support the jury's inference of intent to defraud. 6 S.W.3d at 306-07. In Logan, intent to defraud was inferred from evidence that the defendant was facing foreclosure, that she was seen moving personal property out of her house before the fire, and that she tried repeatedly to avoid placing her signature on her loss claim form and thus affirming that it was true. 48 S.W.3d at 300-01.

In our case, the jury could similarly infer an intent to commit insurance fraud from the fact that appellant purchased insurance only four months before the fire, that he always paid the insurance premiums even when he was unable to pay his note on the business, that he held a sale shortly before the fire, and that he was seen moving expensive items out of the store days before the fire.

Behavior that is inconsistent with a legitimate insurance claim, as observed by witnesses experienced in handling such claims, may also support an inference of intent to defraud. Adelaja v. State, No. 14-05-00544-CR, 2006 WL 3486856, at *2 (Tex. App.--Houston [14th Dist.], December 5, 2006, no pet.) (police sergeant testified that defendant showed no interest in apprehending persons who had allegedly stolen his car, and refused to sign a written statement); Abbott v. State, No. 12-04-00085-CR, 2007 WL 172078, at *3-4 (Tex. App.--Tyler, January 24, 2007, no pet.) (owner of wrecking service testified that it was unusual for defendant to retrieve his "stripped" vehicle himself rather than letting his insurance company handle it). In this case, insurance agent Regan Latta testified that appellant's attempt to withdraw or "postpone" his claim on April 30th was highly unusual: policyholders might sometimes forego making claims for minor losses so as not to raise their premiums, but not for a catastrophic loss such as this one. In considering circumstantial evidence, jurors are "free to use their common sense and apply common knowledge, observation, and experience . . . when giving effect to the inferences that may reasonably be drawn from the evidence." Obigbo, 6 S.W.3d at 306.

Viewing the evidence in the light most favorable to the verdict, a rational factfinder could have concluded beyond a reasonable doubt that appellant made a false statement in support of his insurance claim and that he intended to deceive his insurer.

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). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot say that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that the evidence is factually insufficient to support a verdict under the second prong of Johnson, we must 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. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The factfinder alone determines what weight to place on conflicting testimony because that determination depends on the factfinder's evaluation of witnesses' credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the sole determiner of the credibility of the witnesses, the factfinder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.

The State presented substantial evidence, as described above, to establish appellant's guilt. This evidence was not so weak as to make the jury's verdict wrong or unjust. Nor was there anything of significance--aside from appellant's own testimony--that contradicted the great weight of the state's case. A jury need not give credence to a defendant's self-serving testimony. See Lee v. State, 964 S.W.2d 3, 10 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). The jury was entitled to believe the testimony of four witnesses that appellant had asked them to set a fire, and to disbelieve his denial, especially after he conceded that he could not "disagree with their interpretation" of their conversations with him and admitted asking Fontenette to set the fire. Appellant's insistence that he merely reported a loss but did not file a claim is not credible: two witnesses from the insurance agency (Regan Latta and Christina Southerland) testified that on the day of the fire, he called them and said "I need to file a claim." ⁽⁴⁾ It was only after appellant had admitted his involvement in the fire to investigators that he e-mailed Frankum and asked to "postpone" his claim.

Appellant testified that he decided to buy the insurance because he had suffered storm damage to his roof the previous year; roof damage confirmed by Tom Coleman's testimony. But, the jury could reasonably have inferred a criminal purpose, taking note of the fact that he obtained the insurance only a few months before he arranged the fire. Miller v. State, 566 S.W.2d 614, 617-18 (Tex. Crim. App. 1978) (fact that defendant increased his insurance coverage two months before fire was one of several pieces of circumstantial evidence from which jury could infer intent to commit arson and collect insurance). Even after admitting his involvement with the fire, appellant repeatedly denied that insurance was his motive, yet he never proposed any other reason why he would want the store burned.

Because the evidence is both legally and factually sufficient to support the conviction for insurance fraud, we overrule points of error one through four.

Statement Inadmissible Because of Miranda Violation?

In point of error five, appellant argues that the trial court erred in denying his pretrial motion to suppress his written statement and the video and audio recordings of his April 28 interview with arson investigators. Appellant challenges their admissibility under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), arguing that the interrogation was custodial and he had not been properly advised of his rights before making the statements. Appellant asks for reversal and a new trial.

Standard of Review

We review the trial court's ruling on a motion to suppress for abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); State v. Garrett, 177 S.W.3d 652, 655 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). A trial court abuses its discretion by not suppressing illegally obtained evidence, which is rendered inadmissible by article 38 of the Code of Criminal Procedure. Garrett, 177 S.W.3d at 655; see Tex. Code Crim. Proc. Ann. § 38.23 (Vernon 2006). We view the record in the light most favorable to the trial court's ruling, and we will reverse the trial court's determination only if it is "outside the zone of reasonable disagreement." Dixon, 206 S.W.3d at 590; Powell v. State, No. 01-05-00638-CR, 2007 WL 846646, at *2 (Tex. App.--Houston [1st Dist.] March 15, 2007, pet. ref'd). We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Dixon, 206 S.W.3d at 590. We defer almost totally to a trial court's express or implied determination of historical facts, but we review de novo the court's application of the law of search and seizure to those facts. Id.; Powell, 2007 WL 846646, at *2.

Appellant's Statement

The record undisputably shows that appellant did not receive his Miranda warnings until after he had written his statement. After talking at some length with investigators, appellant wrote the statement which appears on the second page of State's Exhibit 56, in which he admitted asking Fontenette to burn the store. Only after he had finished writing did Investigator Deutsch read him the preprinted Miranda warnings on page 1. After receiving and initialing the warnings, appellant signed the statement on page 3. ⁽⁵⁾

If this were a custodial interrogation, a statement taken in this manner would be inadmissible under Miranda. A defendant must be warned "at the outset" of interrogation, before making any statement. Miranda, 384 U.S. at 467-68, 86 S. Ct. at 1624; Jones v. State, 119 S.W.3d 766, 775-76 (Tex. Crim. App. 2003). Although a written statement is not legally effective or admissible until the defendant signs it, warnings given after the statement is written, but before it is signed, will not satisfy Miranda. Jones, 119 S.W.3d at 775-76. However, the warning requirements do not apply to statements made in a noncustodial setting. See Miranda, 384 U.S. at 478, 86 S. Ct. at 1630; Powell, 2007 WL 846646, at *3; Tex. Code Crim. Proc. Ann. § 38.22 sec. 5 (Vernon 2006). Therefore, the admissibility of appellant's statements will depend on whether his interrogation was noncustodial.

Was the Interview Custodial?

Miranda requirements apply to statements given when a suspect is in custody. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. A person is in "custody" only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322-25, 114 S. Ct. 1526, 1528-30 (1994)). The "reasonable person" standard presupposes an innocent person. Dowthitt, 931 S.W.2d at 254 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991)).

The determination of custody is entirely objective, and the subjective intent of law-enforcement officials is not relevant unless communicated through their words or actions to the suspect. Dowthitt, 931 S.W.2d at 254. The subjective belief of the suspect is also not relevant. Id; Powell, 2007 WL 846646, at *3. Station-house questioning, as occurred here, does not in and of itself constitute custodial interrogation. Dowthitt, 931 S.W.2d at 255. Simply being the focus of a criminal investigation does not amount to being in custody. Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.--San Antonio 2003, no pet.). When a person voluntarily accompanies police officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not "restrained of his freedom of movement" and is not in custody. Shiflet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985).

However, an interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter. Dowthitt, 931 S.W.2d at 255. In Dowthitt, the Court of Criminal Appeals outlined four situations in which custody might arise: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells a suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest, and law enforcement officers do not tell the suspect that he is free to leave. Id; Shiflet, 732 S.W.2d at 629.

Appellant likens this case to the fourth situation outlined in Dowthitt, arguing that because appellant made "statements inconsistent with his innocence" within the first eight minutes of the interview, this created probable cause, and the investigators should have read him his rights before proceeding further. Though appellant's oral admission that he had asked Fontenette to set the fire certainly would have given the investigators probable cause to arrest him, Dowthitt makes clear that probable cause is merely a "factor" and does not automatically establish custody by itself. 931 S.W.2d at 255. Rather, 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 arrest. Id. (emphasis added); see Garcia v. State, 106 S.W.3d 854, 858-59 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).

In Dowthitt, among the circumstances that contributed to establishing custody were that the suspect had been at the police station for fifteen hours before making his statement, that his repeated requests to see his wife were refused, and that police officers insisted on accompanying him when he went to the restroom. 931 S.W.2d at 256. In Resendez v. State, No. 14-05-00098-CR, 2006 WL 3407829, at *7-8 (Tex. App.--Houston [14th Dist.], Nov. 28, 2006, no pet. filed), an interrogation became custodial after a murder suspect failed a polygraph test and then admitted that he had shot the victim; at no time during the interrogation did the officers tell him he was free to leave, and they arrested him immediately after he made the statement. In Ruth v. State, 645 S.W.2d 432, 434 (Tex. Crim. App. 1979), a case cited by appellant, the interrogating officer testified that he "would have detained" the suspect if he had tried to leave without making a statement. Cf. Meek v. State, 790 S.W.2d 618, 622 (Tex. Crim. App. 1990)(distinguishing Ruth on that basis from noncustodial situation in which suspect remained "free to leave").

The facts in this case, by contrast, more closely resemble other instances in which interrogations were found to be noncustodial. According to Dowthitt, probable cause can make an interrogation custodial if officers do not tell the suspect he is free to leave. 931 S.W.2d at 255. But if officers explicitly assure the suspect that he is not under arrest and is free to leave, or if he does in fact finish the interview and leaves without being arrested, courts are likely to find the interview noncustodial even with probable cause. See Meek, 790 S.W.2d at 620-21; Garcia, 106 S.W.3d at 858-59 (appellant came in voluntarily; officer told him he was free to leave; a reasonable person in appellant's position would not have believed he was restrained to the degree associated with a formal arrest).

The record shows that throughout the interview, both before and after appellant wrote his statement, the arson investigators repeatedly assured him that he was not under arrest and that he was free to leave at any time. ⁽⁶⁾ At the conclusion of the interview, appellant went home with his wife. He was not arrested, and was not formally charged until several days later. The circumstances here are identical to those of an interview the United States Supreme Court held to be noncustodial in Oregon v. Mathiason, 429 U.S. 492, 493-95, 97 S. Ct. 711, 713-14 (1977), in which the suspect came to police offices voluntarily, was told he was not under arrest, gave an incriminating confession before being Mirandized, and was allowed to leave unmolested after being told the case would be referred to the district attorney for action. See also Meek, 790 S.W.2d at 622 (holding interview noncustodial under similar circumstances).

Other factors, though not dispositive by themselves, may combine to determine whether an interview took place in a custodial setting. In Dowthitt, the marathon length of the interrogation was crucial in establishing custody. 931 S.W.2d at 256. Here, by contrast, appellant was talking freely within minutes and began writing his statement no more than an hour and a half into the interview. Appellant complains that he felt constrained because he was "not allowed to talk with his wife in a meaningful manner." But, the videotape shows that appellant's wife wandered freely in and out of the room while appellant was writing his statement and during his conversation with investigators afterward, and that appellant and his wife conversed privately and at length on several occasions when investigators left them alone in the room. ⁽⁷⁾ Cf. Garcia, 106 S.W.3d at 859 (after making statement, suspect was taken back to visitor's room and left unguarded with his girlfriend). The videotape also shows that throughout the interview the door to the hallway remained open, and that the two investigators were in plain clothes and never displayed guns or handcuffs in a threatening manner. Cf. Garcia, 106 S.W.3d at 858 (there were only two officers in the room and neither was armed); Trejos v. State, No. 01-05-00646-CR, 2007 WL 1500276, at *10 (Tex. App--Houston [1st Dist.], May 24, 2007, no pet. filed) (appellant was interviewed by one officer in plain clothes, and in "office-like setting").

In sum, the record supports the trial court's finding that appellant was not in custody when he made his statements. Although appellant claims not to remember being told he was free to leave, his denial is clearly contradicted by the videotape and by the testimony of Deutsch and Blevins. The trial court, as the sole finder of fact and judge of the credibility of witnesses in a suppression hearing, was entitled to disbelieve appellant. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Garrett, 177 S.W.3d at 655. Cf. Meek, 790 S.W.2d at 620 (trial court was entitled to disbelieve appellant's claim that he had been placed in handcuffs and threatened, when investigators testified that he was free to leave and had made his statement voluntarily); Colgin v. State, 132 S.W.3d 526, 530 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (trial court's finding that confession was voluntary was supported by record, despite appellant's claim of coercion).

Because the trial court did not abuse its discretion in finding that the interrogation was noncustodial, we overrule appellant's fifth point of error.

Ineffective Assistance of Counsel

In his sixth point of error, appellant claims he suffered from ineffective assistance of counsel, because his trial counsel failed to object to irrelevant and prejudicial "victim impact" evidence offered during the guilt phase of the trial. Specifically, appellant complains that his counsel did not object when Tom Coleman testified to the importance of the building to his family and to his future financial security, and to the emotional impact the loss had on him.

To prevail on a claim of ineffective assistance of counsel, the appellant must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, he must demonstrate that his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S. Ct. at 2064-65; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, the appellant must establish that his counsel's performance was so deficient that it prejudiced his defense. Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist.] 1998), aff'd on other grounds, 990 S.W.2d 274 (Tex. Crim. App. 1999). Thus, the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. The appellant has the burden to establish both these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Because there is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance, appellant must overcome the presumption that, under the circumstances, counsel's action or inaction might be considered "sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. Gamble, 916 S.W.2d at 93.

The record contains no evidence as to counsel's reason for failing to object, and appellant thus fails to rebut the presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 814. The decision not to object to inadmissible evidence can sometimes be justified as part of a sound trial strategy. Darby v. State, 922 S.W.2d 614, 623-24 (Tex. App.--Fort Worth 1996, pet. ref'd). Generally, an isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Cloud v. State, Nos. 01-05-00817-CR and 01-05-00818-CR, 2007 WL 1228630, at *6 (Tex. App.--Houston [1st Dist.], April 26, 2007, no pet.). Appellant has not shown his counsel's performance was deficient, and he fails to satisfy the first prong of Strickland. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.

Even assuming this evidence was improperly admitted, it is unlikely that the error caused significant harm to appellant. Given the overwhelming weight of the evidence supporting appellant's guilt, it is unlikely that the jury would have returned a different verdict during the guilt phase of the trial had these few portions of Coleman's testimony been excluded. Appellant has not shown that trial counsel's failure to object was sufficiently prejudicial to affect the outcome of the proceeding, and he fails to satisfy the second prong of Strickland. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

We overrule appellant's sixth point of error.

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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

1. Appellant does not challenge the legal or factual sufficiency of the arson conviction.

2.

Act of May 25, 1995, 74th Leg., R.S., ch. 621, § 1, 1995 Tex. Gen. Laws 3483, 3483-84 (amended 2003) (current version at Tex. Pen. Code Ann. § 35.02(a)(2)(Vernon 2006)). The offense was committed before Sept. 1, 2005, the effective date of the most recent amendment. The equivalent section of § 35.02 now reads:

(a) A person commits an offense if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

3.

Appellant's assertion that his false statement to Frankum was not a "communication. . . evidencing a loss, injury, or expense" as then defined in former § 35.01(5), Act of May 25, 1995, 74th Leg., R.S., ch. 621, § 1, 1995 Tex. Gen. Laws 3483, 3483 (amended 2003) (current version at Tex. Pen. Code Ann. § 35.01(3)(Vernon 2006)), is unpersuasive. Appellant made his denial in the course of a longer conversation in which he told Frankum about the nature of his business, estimated its weekly cash flow, described his activities on the night of the fire, and identified other people who might have been near the store prior to the fire. This statement, taken as a whole, evidenced appellant's loss. His denial of knowledge is best characterized not as a "statement" by itself, but rather as "false or misleading material information... concerning whether property was damaged or lost in the manner and under the circumstances described" contained within a statement related to his claim. We note that the current version, § 35.01(3), drops the phrase "evidencing a loss" and defines "statement" simply as "an oral or written communication or a record or documented representation of fact made to an insurer."

4.

Even if appellant did not actually use the word "claim," the jury was entitled to believe Regan Latta's testimony that his office would automatically set the claim process into motion whenever an insured called and reported a loss.

5.

This sequence of events is confirmed by the testimony of investigators Deutsch and Blevins. On the videotape, appellant can be seen writing the first paragraph of his statement beginning at 25 minutes and ending at 33 minutes. Over the next fifteen minutes, at the investigators' prompting he adds details of the tools and a physical description of Fontenette. At 78 minutes, Deutsch turns to the first page and reads appellant the Miranda warnings. Appellant initials these and then signs on page 3.

6.

The videotape confirms the investigators' testimony, clearly showing them telling appellant on four occasions that he was not under arrest and was free to leave: at 15 minutes, 64 minutes, 75 minutes and 77 minutes. Each time, appellant can be seen nodding acknowledgment. Appellant wrote the incriminating paragraph of the statement at between 25 and 33 minutes.

7.

Their whispered conversations are completely inaudible on both tapes, and so their privacy remains intact.