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–
