REVERSE and REMAND; and Opinion Filed March 20, 2014.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-12-01278-CR
MIGUEL ALBERTO GUTIERREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 27,326
OPINION Before Justices O’Neill and Myers 1 Opinion by Justice O'Neill Appellant Miguel Alberto Gutierrez appeals his conviction for aggravated robbery. After
appellant pleaded guilty to the offense, the jury assessed punishment at thirty years’
imprisonment and a $10,000 fine. In three points of error, appellant contends (1) he was denied
a fair trial and due process of law when the prosecutor used his ethnicity and immigration status
as a reason to deny him probation, and (2) he received ineffective assistance of counsel. Because
we conclude appellant received ineffective assistance of counsel, we reverse the trial court’s
judgment and remand for a new hearing on punishment.
Because claims of ineffective assistance of counsel require we review the totality of the
representation, and because we must review the entire record to determine prejudice, we recount
1 Although Justice Brown was initially on the panel, she did not participate in deciding this cause. TEX. R. APP. P. 41.1(b). the trial proceedings in some detail. Appellant pleaded guilty to a jury the aggravated robbery of
Chassidy Bond. The indictment alleged appellant, acting with E.G., a juvenile, committed the
robbery and caused “serious bodily injury” to Bond by striking her in the face and head “with his
fist(s) and hand(s) and a DVD box and an object unknown to the grand jury” causing “a
temporary loss of consciousness and a concussion and balance problems and hearing loss.”
At the trial to determine appellant’s punishment, the State presented evidence that on
October 11, 2010, appellant, who was then seventeen, and his friend, E.G. who was sixteen,
entered a Valero convenience store where Bond was working the graveyard shift. They wore
hats and sunglasses. Appellant went to the back of the store and got a drink, and E.G. stood near
the register pretending to look at videos. When appellant went to the counter with the drink,
Bond opened the register. As soon as she did, E.G. struck her in the head, knocking her to the
ground. Appellant ran around the counter and emptied the register. E.G. continued to hit Bond,
as she attempted to cover her face. When appellant emptied the register, they fled. After they
left, Bond called her boyfriend, who came to her assistance. Meanwhile, a customer entered, and
he called police.
Officer Joel Gibson responded to the call. Gibson photographed Bond’s injuries, which
showed a long cut on her forehead, blood on her ear, abrasions on her face, and a bloody nose.
He said Bond was fuzzy and blurred. He did not get a statement from her at that time because it
was apparent she needed to seek medical attention.
Two days after the offense, Bond went to the police station to give a written statement.
Gibson said at that time, she seemed much clearer and was able to provide more details. In her
statement, she said the offense was committed by two young Hispanic males. One of them hit
her in the right temple, which “knocked her out” instantly. She said he continued to hit her with
a DVD case about twelve to fifteen times. After the “shorter one” grabbed the cash, they fled.
–2– She said she “woke up” before the last one could actually get out of the store. She said she could
identify both individuals because they had come in the store the night before, were caught
stealing, and she had it on videotape. That videotape and a videotape of the robbery were
admitted into evidence.
Gibson testified that when Bond went to the police station to give her statement, she took
her old yearbook from Bland High School with her to identify appellant and E.G. He identified
State’s exhibit 13 as the yearbook page she used to identify appellant by placing a mark next to
his photograph. State’s exhibit 13 shows a star mark under E.G.’s eighth grade school picture,
but appellant’s photograph is not on the page.
At the time Bond identified E.G., he had moved to McKinney and had dropped out of
school. Gibson said two efforts were made to locate him at the McKinney residence where his
family lived, but both efforts were unsuccessful. Because E.G. was a minor, no warrant issued
for his arrest. Gibson has since heard that E.G. may have fled to California or Mexico.
About ten days after the offense, appellant, who was still a student at Bland High School,
went to his P.E. teacher, Rodney Godwin, and told him he had something he wanted to get off
his chest. He then confessed that he and E.G. had robbed the Valero, and told Godwin that E.G.
had hit Bond with a hammer. Appellant claimed he committed the offense because he owed
some Dallas drug dealers money, and he was afraid for his and his family’s lives. Godwin felt
appellant was remorseful, and he encouraged appellant to turn himself in. After appellant left
his office, Godwin called police. Godwin said he and appellant had a good rapport, and
appellant had been one of Godwin’s “special projects” he was trying to get in the “right
direction.”
Bond testified at trial. She said she had just started working the graveyard shift when the
robbery happened. She said the night before the robbery, E.G. and appellant were in the store.
–3– She said she knew E.G. from when they went to the same school and appellant from being “in
the store.” She had suspected them of shoplifting multiple times before, but this time she saw
E.G. put a pack of gum in his pocket, and she stopped them. Although they denied the theft,
E.G. returned the gum. Bond said it was not an “unpleasant conversation.” The following
night, they came in the store again at about 2 a.m., wearing hats and sunglasses. Bond sensed
something was up because of their age, the time of evening, and what they were wearing.
She said when she opened the register, E.G. hit her, and she “blacked out.” She does not
recall the assault, but when they fled, she remembers getting up and calling her boyfriend. Bond
went to the hospital for her injuries. She suffered a concussion, a cut on her forehead, and
swelling all over her face. She was supposed to go back to the hospital several days later, but
she does not think that she did.
After the assault, she suffered headaches and vision problems, which went away when
the swelling went away. She said she still cannot hear as well as she used to and sometimes gets
dizzy, causing her to suffer balance problems. She also testified that her memory had been
affected because, although she can remember the night of the offense, she cannot remember
getting hit.
Bond said after the offense, she returned to work, but had lost some income because of
her injuries and had significant unpaid medical bills. She later left her job because it “caught on
fire.” She said after she lost her job from the fire, she had problems paying her school loan. She
said that since the robbery, she has problems with trusting people, and she now felt a little guilty
because she is nervous around Hispanic males, and she knows not all Hispanic males could do
something like that.
Appellant was arrested at his house five days after he confessed to Godwin. Gibson
interviewed him, and appellant again confessed to the offense. When appellant confessed to
–4– Godwin, appellant did not blame the offense on the drug debt. Godwin said appellant had
“maybe to some degree” minimized his conduct in confessing to the offense. But Godwin also
conceded that appellant appeared to give police the “college try” to help find E.G. He also
testified that after the offense, appellant appeared to “do the right thing by coming clean” with
his coach and the police.
Appellant testified and admitted participating in the offense. He also admitted he was
with E.G. when Bond caught E.G. shoplifting the night before. He denied knowing that Bond
would be working the night of the robbery, stating that she usually worked days. He admitted
lying to Godwin when he tried to blame his commission of the offense on his fear of Dallas drug
dealers. He admitted he was trying to come up with an excuse. Appellant claimed he did not
know E.G. had initially “hit” Bond and thought he had tackled her to the ground, but when he
looked he “saw everything.” Appellant testified that police had told him E.G. had “used” a
hammer, but said he “already knew about it.”
To establish his eligibility for probation, appellant testified he had never been convicted
of a felony. He also testified that “other than a traffic ticket,” he had no crimes of moral
turpitude. Appellant also admitted he had had problems with marijuana and “pills,” like Xanax,
and had been to rehab twice. Appellant said that after he was arrested, he spent eighteen months
in jail before he was released on a $100,000 bond. He said he did not get into any significant
trouble in jail, and since being released, he has been working for his father.
During her cross-examination, the prosecutor began a line of questioning concerning
appellant’s citizenship and immigration status. She first asked whether appellant was a “legal
citizen.” When appellant said he was not, she asked whether he had ever driven a car. Appellant
admitted that he had, and that he had neither a driver’s license nor liability insurance. She asked
“[w]hy would this jury give probation to an individual who is not legally in our country.”
–5– Appellant’s trial counsel objected that the question “invaded the province of the jury.” The
prosecutor responded that she “would like appellant to explain why he thinks he is entitled to [a
second chance] when he’s not legally present here in our country.” The trial court did not rule
on the objection, and instructed the prosecutor to rephrase. The prosecutor then asked appellant
why the jury should give him “an opportunity to stay in Hunt County, out of jail, when you’re
not legally in our country.” Appellant said he wanted to prove he could do better. The
prosecutor responded, “[d]o you understand that by being here today, you’re breaking the law?”
Appellant’s mother testified and apologized for her son’s actions. She said she had
brought appellant to the United States when he was five-years-old, and he had no say in the
matter. Appellant’s father also testified that since appellant’s release from jail, he has seen many
positive changes in him and he has become a hard worker. He thought appellant could redeem
himself and become a productive member of society.
In closing, the prosecutor argued for a serious sentence, asserting appellant had failed to
come clean, was continuing to tell lies, had failed to turn himself in to police, and had failed to
show remorse. She further argued that appellant only confessed because he “got caught.” She
asserted the robbery was a crime of revenge against Bond because they wanted to teach her a
lesson for catching them stealing.
Trial counsel argued for leniency based on appellant’s age, he was not the person that
inflicted the injuries, and he had confessed to his participation in the crime. Trial counsel
conceded appellant had made mistakes, and requested the jury to give him a second chance. He
asked the jury to assess a probated ten-year sentence, pointing out that appellant had already
been in jail for eighteen months for the offense, and appellant could be required to serve the
sentence if he could not comply with the conditions of his probation. Finally, trial counsel
argued his own children had made mistakes, and he would never give up on them. He argued,
–6– “[A]t the end of the day, that’s your kid. Well, [appellant] is our kid. This is a Hunt County kid
who completely messed up, completely messed it up but who has done every single thing since
that day right.”
In rebuttal, the prosecutor made the following references to citizenship, appellant’s
immigration status, and his candidacy for probation. In direct reference to appellant’s failure to
have a Texas driver’s license, she asserted appellant had no respect for the laws of “our” country.
She argued, “[t]his court room is about justice. Justice for a citizen of our United States.” She
continued:
This is not your kid. This guy is not even a citizen of our country. He is not your kid. Your kid has been raised to follow the rules. Your kid understands when he does something wrong, his mom and dad are going to take him under hand.
Your kid follows the law. Your kid wouldn’t be sitting in that chair. Your kid wouldn’t have hurt that lady. Your kid when he was caught doing something wrong would have told her, thank you very much. I am so grateful, and I will never do this again and meant it with every fiber of his being. That’s what your kid would have done.
This young man has parents. He has parents, and they are not you. He is not a candidate for probation in Hunt County. He’s not even legally here. He is breaking the law by being present in our community
Probation requires an individual live in a certain place, report at a certain time and do certain things. This young man cannot legally be in Hunt County. He cannot legally report to probation. He cannot legally appear in this courtroom. He is not a candidate for probation.
She requested a fifty-year sentence. The jury assessed a thirty-year sentence, and a
$10,000 fine.
In his first point of error, appellant contends he was denied a fair trial, due process, and
equal protection when the prosecutor used his ethnicity and immigration status as a reason to
deny a probated sentence. A defendant’s failure to make a timely and specific objection during
trial forfeits complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873, –7– 889 (Tex. Crim. App. 2002). A defendant must object to evidence even if the evidence was
elicited solely to appeal to the potential racial prejudices of the jury. Id. Therefore, this
complaint is not preserved for review. Id. at 890. We resolve the first issue against appellant.
In his second and third issues, appellant asserts he received ineffective assistance of
counsel based on trial counsel’s failure to object to the prosecutor’s questions and argument
about his nationality and immigration status. To successfully assert an ineffective assistance of
counsel challenge, an appellant must show that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant.
See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)). An ineffective assistance claim must be “firmly
founded in the record,” and the record must “affirmatively demonstrate” the claim has merit.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We look to the totality of the
representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999).
There is no question that discrimination based on race, ethnicity or national origin is
prohibited by the due process, due course of law, equal protection, and equal rights clauses of the
United States and Texas constitutions. Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App.
1995). Further, the equal protection clause of the United States Constitution also protects
immigrants whose presence in this country is unlawful. See Plyler v. Doe, 457 U.S. 202, 212
(1982). Sentencing a defendant more harshly based solely on his alien status violates the
defendant’s constitutional right to due process. See United States v. Garcia-Cardenas, 242 Fed.
Appx. 579, 583 (10th Cir. 2007); United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir.
1991); United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986); see also United States v.
Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir.1989). However, certain factors that may
–8– accompany such status may provide a rational basis to use such status against a defendant. See
Infante v. State, 25 S.W.3d 725, 727 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Garcia-
Cardenas, 242 Fed.Appx. at 583; Gomez, 797 F.2d at 420.
The State asserts trial counsel was not ineffective because the evidence and the
arguments about appellant’s status as an unauthorized immigrant were proper for three related
reasons. First, the State maintains appellant’s immigration status was relevant at punishment as a
“prior bad act.” Second, it asserts the evidence was admissible to correct the “false impression”
appellant had left with the jury concerning his criminal record and his ability to get a job to pay
the victim restitution. Finally, it asserts the evidence was admissible to show appellant could not
comply with the requirements of probation. We conclude none of these reasons permitted the
State to use appellant’s immigration status against him in assessing punishment.
We begin by noting the State’s arguments in the trial court and on appeal are all premised
on a misstatement, or misunderstanding, of well-settled federal law. Specifically, the State
incorrectly asserts appellant’s presence in the United States, standing alone, is an offense.
Unlawful entry and unlawful reentry into the country are federal offenses. 8 U.S.C. §§ 1301,
1326. Arizona v. United States, 132 S.Ct. 2492, 2499 (2012). Once here, aliens are also
required to register (and must carry proof of registration after they reach the age of eighteen) and
willful failure to do so is a federal misdemeanor. See Id.; 8 U.S.C. § § 1304(3), 1306(a); See
also Arizona, 132 S.Ct. at 2499. But, “[a]s a general rule, it is not a crime for a removable alien
to remain present in the United States.” Arizona. 132 S. Ct. at 2506. Nor is it a crime for a
removable alien to engage in unauthorized employment. See Arizona, 132 S. Ct. at 2504
(“Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or
engage in, unauthorized employment.”).
–9– Here, the evidence showed appellant’s parents brought him to the United States when he
was five-years-old. He was arrested when he was seventeen-years-old, still living with his
parents, and attending high school. After his arrest, appellant thereafter remained incarcerated
until he posted a $100,000 bond to secure his presence in Hunt County. The record is silent as to
whether appellant registered as an alien. The United States Supreme Court has held that a State
cannot penalize the children of unauthorized aliens who can neither affect their parents’ conduct
nor their resident status. See Pyler, 457 U.S. at 220. Under these circumstances, the State failed
to show appellant’s status was admissible as an extraneous offense or prior “bad act.” 2
Therefore, the State’s reliance on cases involving defendants who illegally enter the United
States is misplaced. See Garcia-Cardenas, 242 Fed. Appx. at 583; Gomez, 797 F.2d at 419; see
also Plyler, 457 U.S. at 220 (noting distinction between an adults’ undocumented status as being
the product of conscious action, and a minor child’s status as generally being out of the child’s
control). For the same reasons, the evidence was not admissible to cure the allegedly “false
impression” appellant left when he testified about his desire to comply with the conditions of his
probation or his criminal record. 3
We further conclude the prosecutor’s argument that appellant was not a “candidate” for
probation was improper. The prosecutor did not argue appellant was not a “good” candidate for
probation, but that he was not a candidate at all. This argument was not based on any particular
circumstances that applied to appellant, or any other additional factors that might be associated
with unauthorized status. Rather, she based it on a categorical argument that any unauthorized
2 For extraneous conduct to be admissible there must be sufficient proof to show beyond a reasonable doubt the conduct was committed. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West 2006). We disagree with Infante v. State to the extent it held the trial court could have properly taken the defendant’s alleged status as an illegal alien into account absent proof the defendant was even an illegal alien. See Infante, 25 S.W.3d at 727. 3 We note that appellant was still a juvenile under Federal law at the time of the offense, so even if there was evidence he had failed to register, this would constitute an act of delinquency, not a criminal offense. See 18 U.S.C. § 5031 (a “juvenile” is a person that has not attained his eighteenth birthday).
–10– immigrant cannot meet the terms of probation. On appeal, the State again relies on its assertion
that mere presence in the United States is an offense to support its contention that the argument
was proper. However, as noted above, it is not. But equally problematic is that the prosecutor’s
argument is in direct conflict with the probation eligibility requirements set by the Texas
Legislature in the code of criminal procedure, which required appellant to show only that he had
never before been convicted of a felony offense. TEX. CODE CRIM. PRO. Art. 42.12, § 4(d)(3),
4(e) (West Supp. 2013). The Texas Legislature has not imposed a categorical ban on probation
for unauthorized immigrants, assuming it could properly do so. 4
Additionally, the prosecutor’s references to appellant’s immigration status were not
limited to whether appellant could comply with the terms of probation as a practical matter, but
she also argued that his status justified a harsher punishment. She argued, this case is about
“[j]ustice for a citizen who lives here, who is a citizen of our United States” and that appellant
“was not even a citizen of this country.” She suggested appellant was not “entitled” to a “second
chance” because he was “not legally present here in our country.”
On appeal, the State asserts these arguments were proper to show appellant was not “a
local kid” in response to trial counsel’s argument that appellant was “our kid,” a “Hunt County
kid.” The only evidence in the record was that appellant had lived in the United States since he
was five-years old, and attended the local high school. While we agree the State could argue
appellant was not “their kid,” it could not do so by referencing appellant’s citizenship or
immigration status.
4 The United States Supreme Court has made it clear a State is not permitted to punish an alien based on his illegal presence in the United States or impose any complimentary, additional, or auxiliary regulations regarding the illegal presence of aliens in the State. Arizona, 132 S. Ct. at 2503.
–11– Having concluded the prosecutor’s questioning and arguments were improper, we must
now determine whether counsel was ineffective for failing to object. Because appellant did not
file a motion for new trial, the record does not reflect counsel’s reasoning for not objecting.
Under these circumstances, we can rarely determine the record is sufficient to show ineffective
assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). But when no reasonable
trial strategy could justify trial counsel’s conduct, trial counsel’s performance falls below an
objective standard of reasonableness as a matter of law. Andrews, 159 S.W.3d at 102.
Trial counsel failed to object to the prosecutor’s repeated statements and arguments that
appellant’s immigration status meant he was not a candidate for probation, and further that
appellant’s status and lack of citizenship should be used as an aggravating factor in assessing
appellant’s punishment. We conclude this is one of those rare instances in which we can
conceive of no possible basis in reasonable strategy or tactics for trial counsel’s failure to object.
We further conclude appellant has shown a reasonable probability that, but for counsel’s
errors, the sentencing jury would have reached a more favorable verdict. See Ex Parte Rogers,
369 S.W.3d 858, 862-63 (Tex. Crim. App. 2012). Appellant asserts he was prejudiced because
the jury assessed a thirty-year sentence, even though he was only seventeen when he committed
the offense, admitted his guilt, and was eligible for probation. Although not argued in its brief,
during oral argument the State asserted the thirty-year sentence was not based on appellant’s
immigration status, but on the egregious nature of the offense. 5 While we agree the offense was
serious, we cannot conclude the facts of this offense were so egregious that the jury was not
influenced by the improper evidence and argument concerning appellant’s citizenship and
immigration status. After reviewing the entire record, we conclude the probability of prejudice
5 Among such circumstances the State asserted justified the sentence was that the victim had continued to suffer nightmares, and had lost her job and had to drop out of school because of her injuries. There is no evidence in the record to support these assertions and, indeed, both are contradicted by Bond’s trial testimony.
–12– is sufficient to undermine our confidence in the outcome of the punishment phase. Therefore,
we reverse the trial court’s judgment and remand to the trial court for a new punishment hearing.
TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West Supp. 2013).
/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE
Do Not Publish Tex. R. App. P. 47.7
121278F.U05
–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MIGUEL ALBERTO GUITERREZ, On Appeal from the 196th District Court, Appellant Hunt County, Texas Trial Court Cause No. 27,326. No. 05-12-01278-CR V. Opinion delivered by Justice O’Neill. Justices Myers participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings pursuant to TEX. CODE CRIM. PROC. ANN. Art. 44.29(b).
Judgment entered this 20th day of March, 2014.
/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE
–14–