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MARGARITO ZUNIGA

THE STATE OF TEXAS

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Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion

A jury found appellant, Margarito Zuniga, guilty of aggravated assault, and he was placed on ten years community supervision and assessed a $5,000 fine. By two points of error appellant complains he was denied effective assistance of counsel because his counsel did not investigate and present an alibi defense. We affirm.

The State's evidence showed that Jose Tovar was in front of his home when appellant and some of appellant's relatives attacked him. Tovar's wife saw appellant hit him on the head with a tree trunk. The defense called as its only witness appellant's sister, who testified that appellant was not present during the assault.

Appellant filed a motion for new trial based upon ineffective assistance of counsel. At the new-trial hearing appellant's mother, brother, and wife testified that appellant was not involved in the attack and that his counsel, Michael Garza, did not interview them before trial. Another witness testified that she had told Garza that appellant was not involved, but that Garza did not want her to testify.

Michael Garza testified that he prepared for an alibi defense by reading the offense report and victim's statement, talking to appellant, and visiting the crime scene. Appellant told Garza that he was not involved in the attack. In preparing appellant's defense Garza talked to appellant's mother, wife, brother, sister, and another relative and got conflicting stories about appellant's presence during the assault. He testified that he could tell by these stories that they were not being truthful. He did not call them to testify because he believed they would lie. He let appellant's sister testify because he thought that she would not lie. He stated that she perjured herself. He did not call appellant to testify because he had a "violent past."

To prevail on a claim of ineffective assistance of counsel the accused must first show that counsel's performance was deficient, and then show that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether an accused has met the first prong we must decide whether the record shows that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. at 687. We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The accused must show that counsel's performance was unreasonable under the prevailing professional norms and that the challenged action was not sound trial strategy. See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

Counsel investigated the alibi defense and discovered conflicting stories about appellant's involvement in the assault. Counsel's decision to present only one witness to support the alibi defense was sound trial strategy considering his conclusion that appellant's family members were not telling him the truth and that appellant had a violent past. We hold that appellant failed to meet the first prong of the Strickland test. We overrule the points of error and affirm the judgment.

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J. BONNER DORSEY,

Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of November, 2000.