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Andrade v. State

Defense counsel was not deficient for failing to insist on a defense of habitation jury charge, since the evidence did not support such a charge and counsel's insistence would have been futile.

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Eliborio Andrade was tried by a jury and convicted of participating in criminal street gang activity and affray. He was sentenced to fifteen years, five in custody and the remainder on probation. On appeal, he claims that the indictment was void and that his trial counsel was ineffective for failing to have the jury instructed on the defense of habitation. Because the indictment claim is not properly before us and the habitation defense was not applicable, we affirm.

The evidence, viewed in the light most favorable to the verdict, showed that on June 12, 2010, Wilson Almendares, a gang member, was at his cousin Vidal Romero’s house, where they had been drinking all night. When he began to drive home at approximately 2:00 the next morning, a car full of men whom he believed belonged to a rival gang followed him. He then went back to Romero’s apartment and told him what had happened. They got into Romero’s van along with Jairo Quintana and headed to Atlanta Street, where he believed the rival gang members had gone. On the way, he called Andrade and told him what they were doing. They picked up Andrade and Juan Villanueva, who were also gang members according to Almendares.At about 5:00 a.m., they decided to head home.

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