* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10132

Summary Calendar

JOEL GARCIA NUNEZ

Petitioner–Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent–Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-cv-2812

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Joel Garcia Nunez, Texas prisoner # 01002419, appeals from the district

court’s denial of his 28 U.S.C. § 2254 petition. This court granted a certificate

of appealability (COA) on the issue of whether Nunez’s trial counsel was

ineffective for failing to object to the State’s introduction of collateral matters

during cross examination at the penalty phase of his trial. Also pending before

this court is Nunez’s motion for appointment of counsel.

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2008

Charles R. Fulbruge III

Clerk
No. 06-10132

2

With respect to Nunez’s claim of ineffective assistance of counsel, which

was adjudicated on the merits in his state court proceedings, habeas relief will

not be granted unless Nunez shows that the state court’s adjudication “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or that the state court’s adjudication of a claim “resulted in a

decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1);

Williams v. Taylor, 529 U.S. 362, 402-13 (2000). 

To prevail on an ineffective assistance of counsel claim, Nunez must show

that his counsel’s assistance was deficient and that the deficiency prejudiced his

defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate deficient performance, Nunez must establish that counsel’s

representation fell below an objective standard of reasonableness. Id. at 687-88.

To demonstrate prejudice, a defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 694. A failure to establish either

deficient performance or resulting prejudice defeats the claim. Id. at 697.

Nunez pled guilty to the first degree murder of Manuel Martinez, who

Nunez believed was having an affair with Nunez’s common law wife, Floridama

Berrios. On the night of the murder, Nunez stopped by Berrios’s apartment.

When Nunez saw Martinez appear from inside the apartment, Nunez fatally

shot Martinez in the head at point blank range.

During sentencing, which was tried before a jury, Nunez testified, raising

the defense of sudden passion. Nunez testified that he and Berrios were

separated because of Martinez. The State cross examined Nunez on this issue,

asking if his wife had really left him because he had assaulted her two months

prior to the murder. Nunez denied assaulting his wife. The next day, the State

recalled Nunez for rebuttal, again questioning him about the assault. Nunez’s
No. 06-10132

3

attorney did not object to the State’s questions regarding the assault, the

collateral matter which forms the crux of this appeal. At the close of the

evidence, the jury rejected Nunez’s sudden passion defense and sentenced him

to 99 years in prison. 

In order to demonstrate that counsel was deficient for failing to object

under the first prong of Strickland, Nunez must show that an objection would

have had merit – an attorney’s conduct can hardly be found objectively

unreasonable for failing to make a meritless objection. Whether an objection

would have had merit depends on whether the alleged assault by Nunez is a

collateral matter under Texas state law. The resolution of this question resulted

in opposing decisions by two Texas courts. On Nunez’s direct appeal, the state

appellate court agreed thatthe prosecutor’s questions on cross examination were

improper because any facts pertaining to Nunez’s possible assault of his wife

several weeks earlier involved a collateral matter. However, the court affirmed

Nunez’s conviction because his counsel failed to object to the introduction of

collateral matters on cross examination and thus procedurally defaulted the

claim. The appellate court’s rationale lends support to Nunez’s argument that

his counsel was deficient.

However, on state habeas review, the trial court found that the

prosecutor’s questioning Nunez regarding a prior assault during the punishment

hearing did not involve a collateral matter for two reasons. First, the court held

that Nunez’s prior offenses, even unadjudicated ones such as the alleged assault

of his wife, were proper matters of proof at a punishment hearing. Tex. Code

Crim. Proc. Ann. art. 37.07(3)(a) (Vernon 2007). Second, Nunez testified during

direct examination that Martinez’s interference in his relationship with Berrios

led to their separation some weeks earlier. Thus, the prosecutor was permitted

to question Nunez regarding another possible reason for Nunez’s separation

from Berrios, a reason that would have undermined his direct testimony. For

these reasons, the state habeas court held that it was not ineffective for trial
No. 06-10132

4

counsel to fail to object to the prosecutor’s proper question. The Texas Court of

Criminal Appeals denied Nunez’s application for a writ of habeas corpus without

written order; it relied on the findings of the trial court that were reached

without a hearing. Although the two lower courts disagreed regarding the

collateral matter, the state’s highest criminal court denied Nunez’s habeas

application. This is a strong statement by the highest criminal court in Texas

that Nunez’s proposed objection would have been meritless. 

The federal district court held that the Texas Court of Criminal Appeals’

decision was neither contrary to, nor involved an unreasonable application of,

Strickland. Because Nunez failed to object to the magistrate judge’s report and

recommendation, our review is limited to plain error. See Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc). 

On appeal, Nunez has not shown that the Court of Criminal Appeals was

unreasonable when it decided that the cross examination did not involve

collateral matters. Nunez’s counsel cannot have rendered ineffective assistance

by failing to make a meritless objection. See Green v. Johnson, 160 F.3d 1029,

1037 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999). Accordingly, Nunez has

not established deficient performance by his counsel, and we need not address

whether there was any prejudice. See Strickland, 466 U.S. at 697.

The judgment of the district court is AFFIRMED. Nunez’s motion for

appointment of counsel is DENIED.