Texas Case Law
Unpublished
OJO v. STATE, 01-05-00998-CR (Tex.App.-Houston [1st Dist.]
11-16-2006) CHARLES UKANWA OJO, Appellant, v. THE STATE OF
TEXAS, Appellee. No. 01-05-00998-CR Court of Appeals of
Texas, First District, Houston. Opinion issued November 16,
2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] On Appeal from County Court at Law No. 1,
Fort Bend County, Texas, Trial Court Cause No. 115301.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
TERRY JENNINGS, Justice.
A jury found appellant, Charles Ukanwa Ojo, guilty of the
offense of terroristic threat of a family or household
member[fn1] and the trial court assessed his punishment at
confinement for 125 days. In three points of error,
appellant contends that the evidence is legally and
factually insufficient to support his conviction, the trial
court erred in denying him an evidentiary hearing on his
motion for new trial, and his trial counsel provided him
ineffective assistance of counsel.
We affirm.
Factual and Procedural Background
Fort Bend County Sheriff’s Deputy J. Tabares testified
that, on December 31, 2004, he was dispatched to the home
of the complainant, Comfort Ojo, in response to a
disturbance call. Tabares found the complainant “hysteric,
crying, breathing heavily, and unable to answer [his]
questions.”
Fort Bend County Sheriff’s Deputy Pocasangre testified that
he was dispatched to the home after receiving a disturbance
call and that he arrived a few minutes after Tabares. When
Pocasangre arrived, he found the complainant “to be upset
[and] crying,” and he also met with the complainant’s son,
who appeared calm. Pocasangre observed that the screen on
the televison was broken and that several picture frames
were on the ground. Appellant was no longer at the
residence. Pocasangre recorded an interview with the
complainant and prepared a report.
The complainant told Pocasangre that on the previous day,
appellant, her husband, “came over to the house and
threatened to kill her” and then left the home. Appellant
returned the next day to their home and started an
argument. As appellant was removing his property, the
argument “escalated into a point where [appellant] started
destroying some of the property.” The audio tape of
Pocasangre’s interview of the complainant was played to the
jury.
The complainant testified that on December 30, 2004, she
asked appellant to discuss their marital problems and also
requested his help in paying household bills. The
conversation escalated, and appellant told the complainant
that he was “not interested’ in their marriage and that he
did not have any money. Appellant became angry, stood up,
started screaming, and both the complainant and appellant
started arguing. Appellant told the complainant he was
going to leave, and then he went upstairs and started
moving his things. Appellant told the complainant that “I’m
going to make sure when I’m finished with you, you’ll be
crawling on your knees” and that he would take her life in
a fashion similar to “the California incident that happened
when the man dragged his wife on the truck until her head
severed from her body.” The complainant was “afraid for her
life.” Appellant left the house and told their teenage son,
who was in the house at the time, that he would return
later to get the rest of his things.
The complainant called a locksmith the next morning and had
the home’s locks changed because she was in fear of what
appellant would do to her. Appellant returned to the home
the next day, and the complainant gave her son permission
to open the door. Appellant came into the house and got the
rest of his possessions from the garage. The complainant
was still afraid, and initially appellant and the
complainant did not speak to each other. However, appellant
came back into the house from the garage and began yelling
about his missing tennis racket. The complainant told
appellant that she had no idea where his tennis racket was,
and appellant said “you get it down before things start
flying and start smashing things.” Appellant then grabbed a
wall clock and some framed photographs and “everything
started to fly into the television.” The complainant “ran
away” because she “didn’t know if [appellant] was going to
hit or bust something over [her] head” and because
appellant had threatened her the night before. The
complainant ran outside screaming, asked for help from some
garbage men, and told them to call for emergency assistance
because her husband was trying to kill her. The complainant
then called for emergency assistance herself because she
was afraid for her life and she had not seen appellant
exhibit “this kind of attitude” during their marriage. The
complainant felt that appellant meant what he said when he
threatened to kill her the night before, and his behavior
indicated that he intended to carry out his threat. As she
called for emergency assistance, appellant told her that he
would come back and get her. He then drove off in his
truck.
On cross-examination, the complainant agreed that she was
upset by appellant telling her that he did not want to be
married to her. She also agreed that appellant did not get
physical with her on the night of the offense and did not
throw anything at her. The complainant also conceded that
in April 2005, after the offense, she called appellant on
the phone and asked him to buy a basketball hoop for their
son’s birthday.
Fort Bend County Sheriff’s dispatcher Delvina Palacios
testified that she answered the emergency telephone call
from the complainant, and the recording of the call was
then played to the jury.
Appellant testified that on December 30, 2004, the
complainant asked appellant to talk about their marriage
and that “she was so upset” “she was almost shaking because
she was mad.” Appellant and the complainant both started
shouting at one another, and appellant told the complainant
that he did not “want to be in the marriage.” Appellant
denied that he told the complainant that he was going to
kill her. In fact, it was the complainant who told
appellant that “she would kill [him] or ruin [his] life.”
Appellant then packed his belongings, stored them in the
garage, left the house, and went to a hotel.
When appellant returned the next morning to pick up his
belongings, he found that the garage door lock had been
changed. He knocked on the front door, and after his son
let him inside the home, he “went straight to the garage.”
Appellant did not talk to or make any threatening moves
toward the complainant. However, when appellant went into
the garage, he noticed that someone had gone through his
boxes and that his tennis racket was missing. Appellant
then went back inside the house and asked his wife about
his racket. The complainant got up, went into the bedroom
without saying anything, came out of the bedroom, and “ran
toward where she was sitting on the couch [and was] looking
for something.” Appellant became afraid. The complainant
found what she was looking for and ran from the house.
Appellant then “went — after her trying to leave”
because “she had something she took from me” and he
“thought she was going to ignore me and just run away.” As
he “was trying to get to her” and “stop her” to answer his
question, he tripped over a picture frame that was on a
coffee table, and the frame hit the television screen and
broke it. Appellant did not touch or make a threatening
move toward the complainant, and the complainant was not in
the house when the television was broken. When appellant
went outside, he saw the complainant, who had a cell phone,
and she told him that she was calling for emergency
assistance. In regard to the call, appellant stated that
the complainant “can act.” Appellant did not make any
threatening moves toward the complainant during her phone
call, and he took his last box and left the house.
Appellant explained that the complainant had a “very high
temper” and that she had been fired more than three times
for arguing with coworkers. Appellant also stated that he
is afraid of his wife because “she’s very combative, she’s
ready to fight at anytime anywhere,” and she threatened to
blackmail him with his criminal history. On
cross-examination, appellant reiterated that the television
broke when he tripped on the picture frame as he was trying
to jump over the coffee table.
Legal and Factual Sufficiency
In his third point of error, appellant agues that the
evidence is legally and factually insufficient to support
his conviction because the complainant’s testimony that
appellant’s threats made her afraid for her life “could not
possibly be believed as being true.”
We review the legal sufficiency of the evidence by viewing
the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have
found the essential elements of the offense beyond a
reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509
(Tex.Crim.App. 2005). The trier of fact is the sole judge
of the weight and credibility of the evidence. Margraves v.
State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when
performing a legal sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and
substitute our judgment for that of the fact finder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).
We must resolve any inconsistencies in the evidence in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406
(Tex.Crim.App. 2000).
In a factual sufficiency review, we view all the evidence
in a neutral light, both for and against the finding, and
set aside the verdict if proof of guilt is so obviously
weak as to undermine confidence in the jury’s
determination, i.e., that the jury’s verdict seems “clearly
wrong and manifestly unjust,” or the proof of guilt,
although legally sufficient, is nevertheless against the
great weight and preponderance of the evidence. Watson v.
State, No. PD-469-05, 2006 WL 2956272, at *10
(Tex.Crim.App. Oct. 18, 2006). In performing a
factual-sufficiency review, we are to give deference to the
fact finder’s determinations, including the determinations
involving the credibility and demeanor of witnesses. Cain
v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may
not substitute our judgment for the fact-finders. Watson,
2006 WL 2956272, at *10.
A person commits the offense of terroristic threat of a
family or household member if “he threatens to commit any
offense involving violence to any person or property with
intent to . . . place any person in fear of imminent
serious bodily injury . . . [and] the offense is committed
against a member of the person’s family or household.” See
Tex. Pen. Code Ann. § 22.07(a)(2), (c)(1) (Vernon
Supp. 2005).
Here, Deputy Pocasangre testified that he was dispatched to
the residence after receiving a disturbance call and that
the complainant told him that on the previous day,
appellant threatened to kill her and that appellant
returned the following day and began an argument and
started destroying property.
The complainant testified that following her discussion
with appellant concerning marital problems, appellant
became angry and told her that when he was “finished with
[her],” she would “be crawling on [her] knees” and that he
would take her life in a fashion similar to an incident in
California when a man “dragged his wife” behind a truck
“until her head severed from her body.” The complainant
testified that she was “afraid for her life” and changed
the locks on her home because she was in fear of what
appellant would do to her. The complainant stated that when
appellant returned to the house the day after making the
above threats, he began yelling and destroying property and
that she ran outside and called for emergency assistance
based on appellant’s threats. The complainant stated that
she was afraid for her life and that appellant’s behavior
indicated that he intended to carry out his threat. Viewing
the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational trier of fact could
have found the essential elements of the offense beyond a
reasonable doubt. Accordingly, we hold that the evidence is
legally sufficient to support appellant’s conviction.
In regard to the factual sufficiency review, appellant
cites the complainant’s testimony that, on the day
following the threat, she gave her son permission to open
the door and let appellant inside the home. Appellant
contends, based on this evidence, that a rational trier of
fact could not believe that the complainant was actually
afraid for her life. However, we conclude that, to the
extent that this fact could permit a fact finder to
question the complainant’s testimony in regard to whether
appellant threatened the complainant, the fact finder was
entitled to resolve this credibility issue against
appellant. Cain, 958 S.W.2d at 408-09. We conclude, viewing
the evidence neutrally, that the evidence is not so weak
that the verdict is clearly wrong or manifestly unjust or
that the proof of guilt is against the great weight and
preponderance of the evidence. Accordingly, we hold that
the evidence is factually sufficient to support appellant’s
conviction.
We overrule appellant’s third point of error.
Evidentiary Hearing on Motion for New Trial
In his first point of error, appellant argues that the
trial court erred in denying him an evidentiary hearing on
his motion for new trial because he had an absolute right
to one as the motion alleged matters that were not
determinable from the record.
In his motion for new trial, appellant asserted that the
evidence was insufficient to support his conviction and that
he received ineffective assistance of counsel based on
“the following facts,” which he contended were “outside the
record”:
[c]ounsel did not consult with the defendant sufficiently
before trial to be able to effectively represent the
defendant; [a]ttorney would not meet with the defendant
anywhere but at the court house where it was not possible
for the attorney and client to talk in an atmosphere that
would facilitate the attorney client relationship and
allow the defendant to openly confer with the attorney;
[t]he attorney for the defendant did not investigate the
case or any of the evidence in the case including . . . a
911 audio tape; [t]he attorney for the defendant did not
proffer the defenses as requested by the defendant;
attorney for the defendant agreed to a stipulation to not
allow any evidence of prior marital disputes of the
parties without consulting with the defendant; [a]ttorney
for the defendant never discussed with the defendant any
strategies or plans for the case; [and] [a]ttorney did not
ask any questions of the two sheriff’s deputies without
any type of trial strategy.
Appellant’s appointed attorney on appeal, Lynn Foster,
attached to the motion for new trial an affidavit in which
she stated, “My name is Lynn Foster. I am the attorney for
[appellant] in this cause. I am over the age of 18 years,
have never been convicted of a felony, and am competent to
make this affidavit. `See attached affidavit.'” However,
there is no additional affidavit attached to Foster’s
affidavit, and her affidavit does not include testimony
concerning any specific facts in the motion or any other
facts concerning matters that were not determinable from
the record.[fn2]
At the beginning of the motion for new trial hearing, and
prior to the presentation of any additional evidence, the
State argued that appellant’s counsel did not swear to any
facts in the motion that were outside the record.
Appellant’s attorney responded that, despite the wording of
the affidavit, he “was swearing to the contents of the
motion,” not another affidavit.[fn3] At the conclusion of
argument, the trial court stated that “the pleadings are
insufficient” and denied the motion for new trial. The
trial court then permitted appellant to present “a
bill.”[fn4]
We review a trial court’s refusal to hold an evidentiary
hearing on a motion for new trial for an abuse of
discretion. See, e.g., Reyes v. State, 849 S.W.2d 812, 816
(Tex.Crim.App. 1993). When a defendant presents a motion
for new trial that raises matters not determinable from the
record upon which the defendant could be entitled to
relief, a trial court abuses its discretion in failing to
hold a hearing. Id. However, the right to a hearing on a
motion for new trial is not absolute. Reyes, 849 S.W.2d at
815. Rather, as a prerequisite to obtaining a hearing, a
motion for new trial must be supported by an affidavit
specifically showing the truth of the grounds for attack.
Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002);
King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000).
“The supporting affidavit must reflect that reasonable
grounds exist for holding that such relief could be
granted.” Martinez, 74 S.W.3d at 21 (citing Jordan v.
State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994)). An
affidavit made by someone without knowledge of the facts,
or an affidavit that is conclusory or that is unsupported
by facts, is not sufficient to put the trial court on
notice that reasonable grounds for relief exist. See Reyes,
849 S.W.2d at 816; Lempar v. State, 191 S.W.3d 230, 235
(Tex.App.-San Antonio 2005, pet. ref’d); Flores v. State,
18 S.W.3d 796, 798 (Tex.App.-Austin 2000, no pet.).
Here, the affidavit provided by appellant’s counsel merely
refers to another affidavit, which is not attached. The
affidavit itself is wholly unsupported by facts and does
not reflect that it is made by someone with knowledge of
the facts of the case or the grounds set forth in the
motion for new trial. Thus, it was not sufficient to put
the trial court on notice that reasonable grounds for
relief existed. Accordingly, we hold that the trial court
did not abuse its discretion in denying appellant an
evidentiary hearing on his motion for new trial, and we
deny appellant’s request to abate the appeal.
We overrule appellant’s first point of error.
Ineffective Assistance
In his second point of error, appellant argues that his
trial counsel provided ineffective assistance because he
did not investigate the case, was not aware of the
existence of the emergency call tape, and did not ask
questions of the State’s “police officer witnesses.”
The standard of review for evaluating claims of
ineffective assistance of counsel is set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984). Strickland requires a two-step analysis
whereby appellant must show both that (1) counsel’s
performance fell below an objective standard of
reasonableness and (2) but for counsel’s unprofessional
error, there is a reasonable probability that the result of
the proceedings would have been different. Strickland, 466
U.S. at 687, 104 S. Ct. at 2064; Vasquez v. State, 830
S.W.2d 948, 949 (Tex.Crim.App. 1992). Strickland defines
reasonable probability as a “probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104
S. Ct. at 2068.
In reviewing counsel’s performance, we look to the totality
of the representation to determine the effectiveness of
counsel, indulging a strong presumption that his
performance falls within the wide range of reasonable
professional assistance or trial strategy. Thompson v.
State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). A claim of
ineffective assistance must be firmly supported in the
record. Id.
Here, although appellant filed a motion for new trial, the
affidavit attached to the motion was deficient, and the
trial court did not conduct an evidentiary hearing and
permit appellant to present evidence on matters not
determinable from the record. To the extent that appellant
sought to assert claims of ineffective assistance that were
not apparent on the face of the record and instead were
only supportable by reference to matters outside the
record, appellant has necessarily failed to meet his burden
of proving ineffective counsel.
We must now determine whether appellant’s claims of
ineffective assistance are firmly supported in the record
before us. We note that because of the presumption that
counsel’s actions and decisions were reasonably
professional or were motivated by sound trial strategy, it
is extremely difficult to show that trial counsel’s
performance was deficient when there is no proper
evidentiary record developed at a hearing on a motion for
new trial. See Sudds v. State, 140 S.W.3d 813, 819
(Tex.App.-Houston [14 Dist.] 2004, no pet.) (citing Bone v.
State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002)). In regard
to appellant’s specific claim that his counsel was
ineffective because he failed to properly investigate the
case and did not ask questions of the State’s “police
officer witnesses,” the Texas Court of Criminal Appeals has
stated that “[o]ften, the decision to not cross-examine a
witness is the result of wisdom acquired by experience in
the combat of trial.” Miniel v. State, 831 S.W.2d 310, 324
(Tex.Crim.App. 1992) (quoting Coble v. State, 501 S.W.2d
344, 346 (Tex.Crim.App. 1973)). Our review of the record
reveals that, during trial, Batchan focused on attacking
the complainant’s testimony by extensively cross-examining
her and questioning the credibility of her story. Batchan
did not seek to challenge the contents of the statements
that she made to the State’s other witnesses, but instead
contended that the complainant was acting at the time she
made those statements and the emergency call. Thus, Batchan
elected to specifically address the emergency call with
appellant rather than with the dispatcher. Batchan could
have reasonably concluded that it would not have been
beneficial to ask the dispatcher about her impression of
the complainant during the phone call or to question the
deputies concerning their personal observations at the
residence. Instead, Batchan could have elected to rely on
the direct testimony of appellant, who categorically denied
that he threatened the complainant, testified in great
detail concerning the sequence of events, and described his
wife as a combative person who had a history of engaging in
arguments with co-workers.
In regard to the audio tape of the emergency call, the
record does establish that Batchan elected not to listen to
the audio tape until trial. But the record also reveals
that, at the time the complainant called for emergency
assistance while standing outside her home, appellant was
standing at the door of their house and was aware that the
complainant was making the call. When appellant’s counsel
questioned appellant concerning “the noise and crying and
stuff” that apparently was audible on the tape and the fact
that the tape reflected that the complainant was upset,
appellant asserted that the complainant “[could] act.”
Appellant also said he “saw [the complainant] talking to
the cops” and that the complainant “likes to call the
cops.” Appellant could have conveyed to Batchan the general
substance of the complainant’s comments as well as the
complainant’s tone and demeanor during the call, and thus
Batchan could have been aware of the general contents of
the audio tape before trial. Again, the record indicates
that Batchan focused his trial strategy on the theory that
the complainant was merely acting when speaking both to the
deputies and the dispatcher and, thus, did not actually
feel threatened by appellant. Appellant portrayed his wife
as a manipulative person who fabricated her story of the
alleged threats because appellant wanted to end their
marriage. Appellant testified that the complainant
threatened to blackmail appellant and ruin appellant’s life
and that he was afraid of the complainant. Appellant also
emphasized that the complainant’s testimony should not be
viewed as credible because she let appellant inside their
home the very next day after the alleged threat and because
she continued to communicate with him during the months
after the alleged offense regarding their son. Finally, we
note that other than the statements made by the complainant
to the dispatcher, the audio tape of the emergency call
does not contain any evidence that appellant threatened the
complainant’s life.[fn5] We conclude that appellant’s
claims of ineffective assistance are not firmly supported
in the record. Accordingly, we hold that appellant has not
established that his trial counsel’s performance fell below
an objective standard of reasonableness.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
[fn1] See Tex. Pen. Code Ann. § 22.07(a)(2), (c)(1)
(Vernon Supp. 2005).
[fn2] The State attached to its response an affidavit from
appellant’s trial counsel, John Batchan. Batchan testified
that he met with appellant twice while appellant was in
jail and that they discussed the charges and “all possible
defenses and strategies.” Batchan and appellant also
discussed trial strategy at two other court settings, and
Batchan would have been willing to meet appellant at his
office. Batchan stated that the case was “a simple
misdemeanor case without witnesses” that centered on the
complainant’s and appellant’s conflicting testimony.
Batchan “elected not to cross-examine the police or the 911
operator because their testimony was not in dispute on a
major issue” and because if he had done so, “the prosecutor
could have asked additional questions . . . which she meant
to ask initially.”
[fn3] The court denied appellant’s request to amend the
affidavit after reviewing Rule 21.4 of the Texas Rules of
Appellate Procedure, which provides, “Within 30 days after
the date when the trial court imposes or suspends sentence
in open court but before the court overrules any preceding
motion for new trial, a defendant may, without leave of
court, file one or more amended motions for new trial.”
Tex.R.App.P. 21.4.
[fn4] Appellant presented two “points” in a “bill,” but
appellant never identified what evidence, if any, was
outside the record and would support his motion for new
trial. In his first point, counsel asserted that the
evidence was factually insufficient based on the
non-credible testimony of the complainant. In his second
point, counsel argued that appellant’s trial counsel was
ineffective in not listening to the tape of the emergency
call and in not cross-examining the State’s witnesses.
Although the basic facts asserted in appellant’s second
point in his bill are supported by the record, appellant’s
counsel never referenced any evidence outside the record,
and appellant himself did not appear at the motion for new
trial hearing.
[fn5] This case is distinguishable from Johnson v. State,
in which the defendant was convicted for assaulting a
police officer. 172 S.W.3d 6 (Tex.App.-Austin 2005, pet.
ref’d). First, in Johnson, the trial court conducted a full
evidentiary hearing, affording the defendant the
opportunity to ensure that her ineffective assistance claim
was firmly supported in the record. Id. Here, in contrast,
there was no evidentiary hearing conducted. Second, in
Johnson, the court concluded that counsel’s failure to
obtain an audio tape that “contained direct admissions”
constituted deficient performance. Id. at 18-20. The court
concluded that obtaining a defendant’s admissions is
essential to adequately prepare “for the prosecution’s
efforts to incriminate the defendant through the
defendant’s own words.” Id. Here, the audio tape contains
only the complainant’s statements, and the record indicates
that, based on the circumstances, appellant, and his
counsel, could have been aware of the general contents of
the audio tape.