Pineda v State

• Decision Date: 26 March 1999
• Parties: <!--2 S.W.3d 1 (Tex.App.-Houston 1999) MIGUEL PINEDA, Appellant v. THE STATE OF TEXAS, Appellee NO. 01-96-01306-CR In The For The First District of Texas Opinion issued
• Court: Texas Court of Appeals

Page 1

2 S.W.3d 1 (Tex.App.-Houston[1st Dist.] 1999)

MIGUEL PINEDA, Appellant v THE STATE OF TEXAS, Appellee

NO. 01-96-01306-CR

In The

Court of Appeals

For The

First District of Texas

Opinion issued March 26, 1999

Rehearing Overruled Oct. 7, 1999.

On Appeal from the 182th District Court Harris County, Texas

Trial Court Cause No. 705,304

[Copyrighted Material Omitted]

WILSON, Justice

Panel consists of Justices Cohen, O'Connor, and Wilson.

O P I N I O N

A jury found appellant, Miguel Pineda, guilty of capital murder, and the trial court assessed punishment at life imprisonment. See TEX. PENAL 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 Jos Santibanez, were released on bond for the charge of the murder of appellant's brother, Antonio Pineda. On October 8, 1995, Cornelio and Jos 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 Jose Santibanez. 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 Jos several more times as Jos 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 secure 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 (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, Jos Manual Galarza and Jos 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, Jos Baltazar, 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 Zepeda 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.

Shortly before trial, Walker received Baltazar's February 22, 1996 affidavit and a copy of an airline ticket stub.¹ Walker testified that "this further led me to believe that Baltazar would appear along with the family," suggesting that Baltazar had purchased a Miami-to-Houston airline ticket. Walker testified that on October 17, 1996, he picked a jury. "Mr. Zepeda and I were expecting the Pinedas to arrive any time. I felt sure that the witnesses would arrive. That was why I announced ready for trial because I felt certain that the witnesses would arrive." On October 18, Zepeda spoke with a Florida family member, Gaudencio Pineda. Gaudencio told Zepeda that he, the rest of the Pineda family, and Baltazar would be in Houston on Tuesday, October 22, 1996, when the guilt/innocence phase of the trial began.

When Baltazar did not appear on October 22, Walker thought about moving for a continuance but did not do so because "I thought that they must be somewhere in route to Houston. I simply never dreamed that they would not appear at all." On October 23, 1996, Walker requested a short continuance to determine the location of the witnesses, which the trial court denied.² In his December 27, 1996 affidavit attached to the motion for new trial, Baltazar testified, "I have to say that the day that they say it was committed the crime [sic] in the City of Houston, Texas, he [appellant] was here [in Florida]. He went with me that same day of the crime to the Miami Airport to pick up a relative that was coming from Mexico."

Walker testified in his January 2, 1997 affidavit that he "had in fact intended to issue out-of-state subpoenas for Mr. Baltazar and for Gaudencio Pineda.³ In his December 31, 1996 affidavit, Walker testified, "In retrospect out of town subpoenas should have been requested by me as I have done on other occasions." These statements negated any possible trial strategy Walker might have had in not requesting the subpoenas.⁴

Our review of the entire record leads us to conclude that appellant did not receive ineffective assistance of counsel. First, Walker did everything he could to ensure that the alibi witness, Baltazar, would be in attendance except request a subpoena for him.⁵ Walker confirmed on at least four occasions that Baltazar and the Florida family members would be in attendance. He was told these did not need subpoenas and would voluntarily appear at trial. Walker's belief that Baltazar would voluntarily appear at trial was bolstered by the fact that Baltazar was a friendly witness and that shortly before trial, Baltazar sent a copy of his airline ticket...