Pineda v. State

2 S.W.3d 1, 1999 WL 350611
CourtCourt of Appeals of Texas
DecidedOctober 7, 1999
Docket01-96-01306-CR
StatusPublished
Cited by31 cases

This text of 2 S.W.3d 1 (Pineda v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pineda v. State, 2 S.W.3d 1, 1999 WL 350611 (Tex. Ct. App. 1999).

Opinions

OPINION

WILSON, J.

A jury found appellant, Miguel Pineda, guilty of capital murder, and the trial court assessed punishment at life imprisonment. See TexPenal Code Ann. § 19.03 (Vernon 1994). On appeal, appellant complains of (1) ineffective assistance of counsel, (2) error during voir dire examination, and (3) improper argument by the prosecutor. We affirm.

FACTS

In October 1995, the complainants, Cornelio Santibanez and his brother José Santibanez, were released on bond for the charge of the murder of appellant’s brother, Antonio Pineda. On October 8, 1995, Cornelio and José went to a field in southwest Houston to play handball, and their brothers, Abraham Santibanez and Nico Santibanez, went along to watch. The Santibanez brothers regularly played handball at this particular field.

That evening, three or four gunmen entered the field by coming over a fence. Appellant was identified by an eyewitness as being one of the gunmen and as brandishing a shotgun. Appellant’s brother, Ernesto Pineda, was identified as one of the gunmen accompanying appellant.

Appellant and Ernesto shot José Santi-banez. Cornelio Santibanez ran in the direction of his vehicle when the shooting started; however, appellant was able to shoot Cornelio twice just before Cornelio got inside. Abraham Santibanez ran to his truck and got inside, but appellant was still able to shoot Abraham in his hand and in his leg. As the gunmen began to run away from the scene, Ernesto shot José several more times as José attempted to lift his head from the ground. After the shooting stopped, Tammy Cardenas saw appellant carrying a shotgun, getting into a vehicle, and leaving the area.

When Houston Police Officers James Hudkins and Tasha Herbar arrived at the handball field, they found several people running around in panic. The officers found Abraham, who told the officers that he knew the identity of the shooters and that one of them was appellant.

INEFFECTIVE ASSISTANCE OF COUNSEL

In point of error one, appellant contends he received ineffective assistance of counsel during the guilt-innocence stage of his trial because his counsel did not [4]*4secure the attendance of two alibi witnesses.

The standard of review for ineffective assistance of counsel during the guilt-innocence stage is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant seeking relief must demonstrate (1) that counsel’s performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064-65, 2068; Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App.1995). A “reasonable probability” was defined by the Supreme Court as “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Whether this standard has been met is to judged by “the totality of the representation.” Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App.1990).

Our review of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. A fair assessment of counsel’s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991). The burden of proving ineffective assistance of counsel is on the defendant and is one that requires proof by a preponderance of the evidence. Id. at 511 n. 1. Moreover, a defendant’s right to effective assistance of counsel does not guarantee errorless representation, but instead affords the defendant counsel reasonably likely to render effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). The review of counsel’s representation indulges a very strong presumption that counsel’s conduct falls within a wide range of satisfactory representation. Davis v. State, 930 S.W.2d 765, 767 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd).

Appellant contends his trial counsel provided ineffective assistance because counsel did not request subpoenas for two alibi witnesses, José Manual Galarza and José Baltazar. Appellant further contends that Baltazar’s affidavit indicated Baltazar would have corroborated appellant’s alibi defense.

Appellant’s trial counsel, James Walker, executed three affidavits in support of appellant’s motion for new trial. In his December 17, 1996 affidavit, Walker testified that his paralegal, John Zepeda, advised him that a friend of his, Mari Cruz Sierra, had a cousin named Miguel Pineda, who was charged with capital murder. Walker testified that he agreed to represent appellant. After being retained, Walker immediately sent Zepeda to Florida, where Zepeda contacted Baltazar. Baltazar indicated that he was ready and willing to come to Houston to testify for appellant.

Walker testified that when Zepeda returned to Houston, Zepeda reported that Pineda had a good alibi witness, José Bal-tazar, and that Baltazar was willing to come to Houston to testify. Baltazar claimed that appellant was with him in Miami, Florida at the time the murders took place. Baltazar and appellant were allegedly picking up Galarza, who is appellant’s cousin and brother-in-law, at the Miami Airport. Zepeda was unable to interview Galarza, and Zepeda told Walker that Galarza was unavailable to testify at trial: “It was always represented to us that the cousin was unavailable for interview or testimony at trial.... ”

Zepeda also reported that members of appellant’s family living in Florida would also come and testify. Walker believed that Baltazar was a very close family friend. Walker specifically asked Zepeda whether any of the Florida family members and Baltazar needed subpoenas, and [5]*5Zepeda told him that they were willing to come and testify without subpoenas. Walker testified that shortly after his first trip, Zepeda made a second trip to Florida and “reconfirmed the facts that he had obtained on the first trip,” presumably including Galarza’s unavailability. In July 1996, Sierra was murdered, which made it more difficult for Walker to maintain day-to-day contact with the Pineda family in Florida.

Walker testified when he learned of the October 17, 1996 trial setting, he had Zepeda contact the Florida witnesses. These witnesses “once again promised [Zepeda] that [they] would appear.” Walker did not worry about lodging for these witnesses because the Pineda family lived in Houston until 1994 and still had family in town. The Florida family members and Baltazar never indicated that they would have trouble actually getting to Houston.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Estate of Tom Cone, Jr.
Court of Appeals of Tennessee, 2022
Jimmy Vera v. State
496 S.W.3d 293 (Court of Appeals of Texas, 2016)
Brown, Patrick Marcel
Texas Supreme Court, 2015
Brown, Patrick Marcel
Court of Appeals of Texas, 2015
John Allen v. State
Court of Appeals of Texas, 2015
Patrick Marcel Brown v. State
468 S.W.3d 158 (Court of Appeals of Texas, 2015)
Christopher Morris Bowman v. State
Court of Appeals of Texas, 2013
Francisco Javier De La Rosa v. State
Court of Appeals of Texas, 2011
Zunker v. State
177 S.W.3d 72 (Court of Appeals of Texas, 2005)
Klock v. State
177 S.W.3d 53 (Court of Appeals of Texas, 2005)
Enrique Valenzuela, Jr. v. State
Court of Appeals of Texas, 2005
Longoria v. State
154 S.W.3d 747 (Court of Appeals of Texas, 2005)
Zunker, Scott Alan v. State
Court of Appeals of Texas, 2005
Klock, Valin Thomas v. State
Court of Appeals of Texas, 2005
Longoria, Richard v. State
Court of Appeals of Texas, 2004
Nicholas Anthony Conner v. State
Court of Appeals of Texas, 2003
Thompson v. State
95 S.W.3d 537 (Court of Appeals of Texas, 2003)
James Kenneth Taylor v. State of Texas
Court of Appeals of Texas, 2003

Cite This Page — Counsel Stack

Bluebook (online)
2 S.W.3d 1, 1999 WL 350611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pineda-v-state-texapp-1999.