Victor Manuel Pensado v. State
07-14-00401-CR
| Tex. | Jul 31, 2015Background
- Victor Manuel Pensado was indicted for cockfighting (June 9, 2013). He pleaded not guilty; a jury found him guilty and assessed punishment at one year in state jail and a $5,000 fine.
- Animal-control officers and police found 17 live roosters, two recently dead roosters with gaff wounds, pens, gaffs, syringes, vitamins/antibiotics in a refrigerator, blood and feathers, and vehicles registered to Pensado at the property. Several witnesses scattered when officers arrived; Pensado was present briefly, spoke with an officer, then left and did not return while officers were on scene.
- At trial Pensado testified he lived primarily elsewhere, visited the property on weekends, and denied knowingly hosting cockfights (claimed a friend "Mario" managed the roosters). He acknowledged some inconsistent statements to officers and admitted saying he killed roosters to eat because he did not know what else to say.
- Defense did not call Pensado’s mother, sister, or employer at trial; Pensado later filed an untimely amended motion for new trial attaching their affidavits alleging mitigation and language issues. The amended motion was not properly presented and was overruled by operation of law.
- Appellant claimed ineffective assistance of counsel for failing to call the additional witnesses at guilt-innocence and punishment stages. The State responded that Pensado testified extensively and that trial counsel’s omission could be strategic; the record is silent on counsel’s reasons.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Pensado received effective assistance of counsel at guilt-innocence | Counsel was ineffective for not calling mother/sister to corroborate he lived elsewhere and lacked knowledge of cockfighting | Counsel’s failure to call them was not shown deficient; Pensado testified about living situation and omissions may have been strategic; no prejudice shown | Appellant failed to meet Strickland burden; silent record supports presumption of reasonable strategy |
| Whether counsel was ineffective at punishment phase | Counsel should have called employer/family to present mitigation and obtain probation | Pensado gave mitigation testimony himself; additional witnesses would be cumulative or risky; no reasonable probability of a different outcome | No ineffective assistance shown; no demonstrated prejudice |
| Procedural defect: sufficiency of motion for new trial/presentment | Amended motion provided affidavits supporting ineffectiveness claim | Amended motion was untimely and not presented; original motion lacked affidavits; claim can be raised on the record but court treats procedural defects as relevant | Amended motion was untimely/not presented; claim addressed on the record but fails on merits |
| Credibility question central to conviction | Argued additional witnesses could have undermined officer testimony about admissions at scene | State emphasized contemporaneous scene evidence and officers’ communication with Pensado; jury credited officers over Pensado | Jury credited officers; record supports conviction and mid-range punishment |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Ineffective assistance requires deficient performance and prejudice)
- Ex parte Menchaca, 854 S.W.2d 128 (Tex. Crim. App.) (Strickland standard applied in Texas post-conviction review)
- Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App.) (silent direct-appeal record generally insufficient to overcome presumption of reasonable strategy)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.) (presumption that counsel’s conduct was within wide range of reasonable professional assistance)
- Bone v. State, 77 S.W.3d 828 (Tex. Crim. App.) (on direct appeal, undeveloped record usually cannot show counsel deficient when omission-based claims are raised)