Opinion filed March 18

, 20 2 1



### In The



# Eleventh **Court of**  **Appeals**

__________

No. 11

- 1 9

- 00091

- C R

__________

JESUS ROMAN

- RODRIGUEZ

, Appellant

V.

THE STATE OF TEXAS

, Appellee

On Appeal from the 358th District Court

Ector County

, Texas

Trial Court Cause No. D

- 45,684

M E M O R A N D U M O P I N I O N

The jury convicted Jesus Roman

- Rodriguez of possession of less than one

gram of cocaine

. The jury also assessed Appellant ’ s punishment at confinement for

a term of two years in the State Jail Division of the Texas Department of Criminal

Justice

, imposed a $10,000 fine, and recommended that payment of the fine be

suspended and probated

. The trial court ordered that the sentence of confinement be

suspended

, placed Appellant on community supervision for a term of five years

, and2 suspended the payment of the fine during the period of Appellant ’ s community

supervision

. In his sole issue on appeal

, Appellant challenges the trial court ’ s denial

of his proffer of punishment evidence

. We affirm.

Background Facts

Eduardo Reyes worked as an armed security guard at Chekiro ’ s, a sports bar

in Ector County

. At the end of th e evening on March 1, 2015

, Reyes observed

Appellant drive a vehicle into three cars and the wall of a building

. Reyes and his

partner assisted Appellant

, who smelled of alcohol

, out of his vehicle and placed him

in restraints

. They also contacted the Odessa Police Department.

Jonathan Campbell is a detective with the Odessa Police Department . He was

dispatched to Chekiro ’ s on March 1, 2015. After he arrived, Detective Campbell

spoke with the security guards and administered field sobriety test s to Appellant

.

Detective Campbell concluded that Appellant was impaired . H e arrested Appellant

for driving while intoxicated. While performing an inventory of Appellant ’ s

personal property during the booking process

, Detective Campbell found in

Appellant ’ s wallet a folded dollar bill that contained a white substance . A field test

on the substance yielded a positive result for cocaine.

Marissa Silva Gomez is a lab manager for the Texas Department of Public

Safety in Midland

. Gomez performed a scientific analysis of the substance in the

dollar bill . She confirmed that it contained cocaine and that it had a net weight of

0

. 7 9 grams.

Appellant testif ied on his own behalf during the guilt / innocence phase of trial

.

Appellant testified that he was twenty years old when he entered the bar

. He did not

remember having or receiving the dollar bill that was admitted in to evidence

, did not

know that he possessed it, and did not intend to possess it

. During the punishment

phase of trial, Appellant sought to offer evidence that he had been incarcerated for3 twenty months prior to trial as a consequence of his immigration status . The trial

court denied Appellant’s requested offer of evidence

.

Analysis

In his sole issue on appeal

, Appellant contends that the trial court abused its

discretion when it excluded evidence of his federal immigration detention , which

Appellant asserts was admissible to assist the factfinder in assessing his punishment

.

He asserts that h e proffered this evidence to show the jury that he had already been

punished for the offense for which he was being tried because he was detained by

ICE as a result of his immigration status. Appellant asserts that this evidence was

relevant to the jury’s consideration of the appropriate sentence

.

During his offer of proof, Appellant testified that

, as a result of his arrest for

the underlying case and his immigration status, he was confined for eighteen months

while in the custody of the United States Immigration and Customs Enforcement

agency (ICE) and that he was confined in Odessa for three months. Defense counsel

explained to the trial court that he intended to use this evidence in support of his

argument that a minimum sentence would be proper because Appellant had already

been confined because of his immigration status

. In response, t he trial court

explained that Appellant’s immigration status was not relevant to the case and that

Appellant’s detention because of his federal immigration status was “ a Federal issue,

not a State [ issue ]

. ”

We review the trial court ’ s decision to admit or exclude evidence under an

abuse of discretion standard. S huffield v. State , 189 S. W.3d 782, 793 (Tex. Crim.

App. 2006). A trial court abuses its discretion when it acts outside the zone of

reasonable disagreement. Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App.

2003). We will uphold the trial court’s ruling on the admission or exclusion of

evidence if the ruling was proper under any legal theory or basis applicable to the

case. Martinez v. State , 91 S.W.3d 331, 336 (Tex. Crim. App. 2002).4 At the punishment phase of trial, there are no discrete factual issues; instead,

the task of deciding what punishment to assess is a normative process. Rogers v.

State , 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (citing Miller

- El v. State , 782

S.W.2d 892, 895

– 96 (Tex. Crim. App. 1990)). “[A]dmissibility of evidence at the

punishment phase of a non

- capital felony offense is a function of policy rather than

relevancy.” Miller

- El , 782 S.W.2d at 895. The jury is entitled to consider “any

matter the court de ems relevant to sentencing.” T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 37.07, § 3(a)(1) (West Supp. 2020 ). “R elevancy in the punishment phase is ‘a

question of what is helpful to the [factfinder] in determining the appropriate sentence

for a particular defendant i n a particular case.’” Ellison v. State , 201 S.W.3d 714,

719 (Tex. Crim. App. 2006) (quoting Rogers , 991 S.W.2d at 265). Thus, a trial court

has broad discretion in determining the admissibility of evidence presented at the

punishment phase of trial. Henderson v. State , 29 S.W.3d 616, 626 (Tex. App.

—

Houston [1st Dist.] 2000, pet. ref ’ d).

A dmitting evidence in a state court proceeding that a defendant is an

unauthorized immigrant is a risky proposition. See Gutierrez v. State

, No. 05

- 12

-

01278

- CR, 2014 WL 1118135, at *5

– 6 (Tex. App.

— Dallas Mar. 20, 2014, no pet.)

(not designated for publication) ; see also TXI Transp. Co. v. H ughes , 306 S.W.3d

230, 241

– 44 (Tex. 2010)

. Federal law solely governs the consequences of a person’s

status as an immigrant. Gutierrez

, 2014 WL 1118135, at *5

– 6 . As noted in

Gutierrez , a state is not permitted to punish an alien based on his illegal presence in

the United States. Id

. a t *6 n.4 (citing Arizona v. U nited S tates , 567 U.S. 387, 402

–

03 (2012) ).

A ppellant testified during the offer of proof that he was detained by ICE due

to his immigration status after being arrest ed for the underlying charge. He did not

testify or present other evidence that his federal immigration detention was imposed

as a punishment for his state charge for the offense of possession of cocaine. As5 noted above, the trial court noted that this analytical gap between the reason for

Appellant’s detention by ICE and the underlying charge was the reason why the trial

court did not find the proffered evidence to be relevant. This determinatio n by the

trial court did not constitute an abuse of discretion. If the trial court had admitted

the evidence that Appellant had been detained by ICE, an explanation of why

Appellant had been detained would likely have led to the disclosure of his

immigration status

— a matter that is fraught with risk.

Rule 403 of the Texas Rules of Evidence permits the trial court to exclude

relevant evidence if its probative value is substantially outweighed by the danger of

confusion of the issues or the danger of misleading the jury

. T EX

. R. E VID

. 403. The

State cites Frank v. State

, 992 S.W.2d 756, 75 7

– 58 (Tex. App.

— Houston [1st Dist.]

1999

, pet. ref ’ d )

, as being instructive in the application of Rule 403 to the issue in

this case . We agree. The defendant in Frank was arrested after he and an accomplice

had robbed an armed courier who was delivering funds to a credit union

. Id. at 756.

After his arrest, the defendant was convicted in federal court and was sentenced to

confinement in federal prison for a term of thirty years ; he was then tried and

convicted in state court for charges arising from the same conduct. Id. at 756

– 57.

On appeal, the defendant asserted that the trial court erroneously excluded

punishment evidence that showed he had been sentenced in federal court to

confinement for a term of thirty years for the same conduct for which he had been

tried in state court

. Id. at 757. The defendant desired to present this evidence to the

jury to show that he was being punished in federal court for his conduct and to

“mitigate against a long state sentence.” Id.

The court in Frank noted that S ection 3 (a) of A rticle 37.07 does not require

the admission of all relevant evidence and that evidence may be excluded under

Rule 403 if its probative value is substantially outweighed by the danger of

confusion or of misleading the jury

. Id

. The court concluded that that these6 considerations supported the trial judge ’ s exercise of discretion in excluding the

proffered evidenc e. Id.

In this case, the State asserts that

, if the trial court had ruled that Appellant ’ s

proffered evidence was relevant and had admitted it during punishment

, the jury

would have learned of Appellant ’ s undocumented status

. This would have injected

references to federal immigration laws and their attendant issues into the jury ’ s

determination of a proper punishment for Appellant ’ s state

- based drug conviction

.

For this reason, we agree that the marginal value of Appellant ’ s federal detention

evidence to the mitigation of his state punishment was substantially outweighed by

its inherent danger of confusing the issues and misleading the jury. Accordingly,

the trial court did not abuse its discretion by excluding the evidence of Appellant’s

detention by ICE because of his immigration status. We overrule Appellant ’ s sole

issue.

This Court ’ s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

March 18

, 20 2 1

Do not publish. See T EX

. R. A PP

. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Williams

, J., and Wright, S.C.J. 1

Trotter

, J., not participating.

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,

sitting by assignment.