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Click here for the full text of this decision FACTS:Reza “Ray” Ayari, a taxi driver in San Antonio, picked up his friend Esther Garza in early morning hours of Jan. 4, 1994, to ride with him for the rest of his shift. Around 3 a.m., Ayari picked up two passengers, Joe Amador and Sara Rivas. Amador said he wanted to go to Poteet, about 30 minutes from San Antonio. Ayari said he would need $20 upfront for the trip, so Amador directed Ayari to the house of Yvonne Martinez, Amador’s girlfriend, where he got the money. Just outside of Bexar County, Ayari and Garza were both shot in the head. Ayari died. Garza pretended to be dead. Police who came to the scene found .380 and .25 caliber shell casings at the scene, and a .25 caliber bullet was later removed from Ayari’s nasal cavity. Garza gave police a description of Amador as being just over 6-feet tall with short black hair. Later, Garza worked with police to create a composite sketch of Amador. Police picked up Amador and Martinez for questioning. Police then brought in Garza to provide an identification. At the station, showed Garza a photo array of Hispanic males, but Garza could not make an identification. Rivas gave a written statement to police that Amador had shot Ayari, then gave Rivas a gun to shoot Garza. Amador gave an inculpatory statement: he said that if he committed the crime, he would have used .380 and .25 caliber handguns. Amador filed a pretrial motion to suppress his statement about the guns’ caliber. Amador’s statement about the caliber of the guns was admitted at trial. Garza identified Amador in trial. An eyewitness testified seeing Amador and Rivas walking away from the abandoned taxi. And Martinez also testified that Amador described the murder to her in detail afterwards. Amador had written her from jail urging her not to testify. Amador was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed Amador’s conviction. Amador then filed for state habeas corpus relief. He argued that he was denied effective assistance of appellate counsel because his attorney did not assign error to the gun-caliber statement and failed to specifically alleged that the identification process used with Garza was unnecessary and suggestive. Both arguments were rejected. Amador raised the same issues in federal district court habeas proceedings, which were rejected, but the district court allowed Amador to appeal to the Fifth Circuit. HOLDING:Affirmed. Addressing Amador’s ineffective assistance of counsel claim in regard to the gun-caliber statement, the court did not take up the issue whether counsel’s performance was deficient because Amador was not prejudiced by counsel’s actions. “The prejudice inquiry in this case turns on a question of Texas state law: whether the statement was in fact admissible at trial under Article 38.22, section 3 of the Texas Code of Criminal Procedure.” Next, the court addressed appellate counsel’s performance in relation to Garza’s in-court identification of Amador. The court agreed that counsel’s performance was deficient because counsel never pointed out to the TCCA that its assumption that the trial court had not made a ruling on the issue was incorrect. Nonetheless, the Court held that Amador’s Strickland claim on this point failed because he could not show that he suffered any prejudice from his counsel’s failure. The Court referred to other witnesses that implicated Amador. OPINION:King, J.; Jones, C.J., and King and Dennis, J.J.

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