COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAIME ARELLANO,

Appellant, 

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-18-00198-CR

Appeal from the

Criminal District Court No. 1

of El Paso County, Texas

(TC# 20110D03106)

O P I N I O N

Jaime Arellano appeals from his conviction, following a jury trial, for unlawful possession 

with intent to deliver cocaine, more than 4 grams but less than 200 grams. We affirm.

BACKGROUND

On June 22, 2011, the El Paso County Sheriff’s Office obtained information from a 

detective that a certain truck may possibly be loaded with narcotics. A member of the Sheriff’s 

narcotics task force located the truck and, after observing two traffic infractions, pulled the vehicle

over. Arellano, who was the driver, sole occupant, and owner of the truck, was cooperative and 

volunteered that he might have some outstanding traffic warrants. The officer conducted a patdown search, which revealed that Arellano was carrying $700 in cash in his pocket. Arellano 

signed a written consent to search the truck, after having the consent form explained to him in 

English and having been given the opportunity to read it in both English and Spanish.
2

Once a K-9 unit arrived on the scene, the dog and its handler began to search the exterior 

of Arellano’s truck. The dog then jumped through the driver’s open window and alerted to an odor 

of narcotics located high in the cab of the vehicle. The handler returned the dog to his patrol vehicle 

then continued to search the truck by hand. He discovered approximately 53 bindles1of a white 

powdery substance inside an overhead compartment of the truck’s interior. Although the bindles 

were not apparent upon opening the compartment, they were discovered when the console was 

removed from its rail. Arellano was immediately placed under arrest.

At trial, Arellano attempted to introduce testimony from himself and his wife, Cynthia 

Buenrostro, explaining that they and their young daughter had been kidnapped by a drug cartel 

while they were in Juarez, Mexico, on the first Saturday in June 2011. When the State objected to 

preliminary questions about the incident, the trial court excused the jury and heard testimony 

outside their presence to determine its admissibility.

Buenrostro testified outside the jury’s presence that she, Arellano, and their daughter were 

returning to the United States in Arellano’s truck when, approximately a block and a half from the 

border bridge, a truck forced them to stop. Four men with guns emerged from the truck and 

accosted them. Arellano was pulled from his truck and taken away, while Buenrostro huddled on 

the floor behind the driver’s seat, holding the child. A man with a gun got into Arellano’s truck, 

told Buenrostro that he was with the Juarez drug cartel, repeatedly threatened her and her daughter, 

and drove for 20 or 25 minutes before stopping. At that point, the man received a radio call and 

began rummaging through the truck’s glove compartment, the middle console and the console on 

top. He then got out of the truck but returned in a few minutes and again looked through the truck’s 

1 A bindle is a small package, usually containing approximately one gram of narcotics, for street-level delivery.
3

glove compartment. He then received another radio call, laughed, and drove the truck back into 

Juarez. He warned Buenrostro against telling anyone what had happened to her then left.

Buenrostro stayed on the floor of the truck until she soon heard her husband’s voice calling 

her. She saw when he got into the truck that he had been beaten. He said that it had all been a 

mistake and that they were not who the men were looking for. They drove back to the United 

States, went home, and did not report the incident to anyone because they were afraid of the cartel.

Buenrostro testified that even though she did not see her kidnapper put any drugs in their

truck, she had assumed that that was how they got there because she had seen him moving the 

compartments. She admitted on cross-examination by the State that she could not say that Arellano 

had not himself put the drugs in the truck, nor could she say that they were in fact put there during 

the Juarez incident.

Arellano similarly testified outside the presence of the jury that he and his family were 

accosted by four men who forced him to stop his truck as they approached the border. He was 

driven away and beaten, then taken to a white room, where he was beaten some more. He was told 

that he had to sell drugs for the cartel, or they would kill his family. To protect his family, he 

agreed but never actually intended to sell drugs for the cartel.

Arellano was then dropped off in downtown Juarez, where he spotted his own truck and 

called out to his wife. He told her it was all a mistake and they returned to the United States, where 

they did not report the incident because they were afraid. After their return, Arellano examined 

every compartment in his truck except the upper compartment where the drugs were located. He 

explained that did not look there because he never used that compartment.

Arellano testified that the Juarez incident was the only time that his truck had been out of 
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his custody and control. He did not, however, see anyone put drugs in his truck and his kidnappers 

never mentioned putting any drugs in his truck. In addition, no one from the cartel ever contacted 

him after he returned to the United States.

The State objected to the testimony concerning the Juarez incident on the ground that it 

was an improper attempt to raise a duress defense without meeting the requirements of that 

defense. When counsel for Arellano insisted that he was not raising a duress defense, the State 

further objected that the testimony was irrelevant, speculative, an improper attempt to engender 

sympathy for the defendant, and that its probative value, if any, was outweighed by its prejudicial 

effect and the danger of confusing and misleading the jury.

Counsel for Arellano responded that he was offering the testimony only to show why 

Arellano’s truck was out of his custody and control. He denied seeking to use the testimony to 

show that the kidnappers put the drugs in the truck: “We are simply telling the jury what happened 

and nobody is implying or saying these people put this in the—in the compartment.” Limiting the 

scope of the testimony, the trial court ruled that counsel could ask Arellano if his truck was ever 

out of his custody and control, but that the court did not see any relevance in the details of the 

Juarez incident.

Arellano then testified before the jury that his truck was out of his custody and control for 

hours on the first Saturday in June. He began to explain, “when the cartel . . . ,” but was interrupted 

by the State’s objection, which the court sustained. He did, however, testify that “[t]he only 

moment when the truck was out of my reach was when that happened to me in Juarez.” He denied 

putting the drugs in his truck, denied ever having sold drugs, denied intending to sell drugs for the 
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cartel, and guaranteed that his fingerprints were not on the packages found in the truck.2

The jury found Arellano guilty of the offense of unlawful possession of cocaine with intent 

to deliver. The court assessed punishment at seven years’ confinement, suspended for seven years. 

This appeal followed.

DISCUSSION

Arellano asserts in his sole issue that the trial court violated the due process clause of the 

Fourteenth Amendment to the United States Constitution by excluding evidence of the Juarez 

incident and thus preventing him from making his defense.

A. Standard of Review

A trial court’s exclusion of evidence is reviewed for abuse of discretion. De La Paz v. State, 

279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. 

App. 2001) (en banc). This standard applies equally when a court excludes evidence that a 

defendant asserts is necessary to establish his defense. See Miller, 36 S.W.3d at 507. “As long as 

the trial court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of 

discretion, and the trial court’s ruling will be upheld.” De La Paz, 279 S.W.3d at 343–44.

B. Exclusion of evidence of the Juarez incident

A criminal defendant has a fundamental right under the United States Constitution “to 

present evidence of a defense as long as the evidence is relevant and is not excluded by an 

established evidentiary rule.” Miller, 36 S.W.3d at 507. Relevant evidence is evidence that has any 

tendency to make a fact of consequence to deciding the matter more or less probable than it would 

2 Multiple witnesses had testified that law enforcement did not attempt to lift any fingerprints from the packages. One 

witness explained that the packages were too small to be effectively fingerprinted, and another testified that it was not 

normal procedure to fingerprint street-level packages
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be without the evidence. TEX. R. EVID. 401. A court may exclude relevant evidence if its probative 

value is substantially outweighed by a danger of such concerns as unfair prejudice, confusing the 

issues, or misleading the jury. TEX. R. EVID. 403.

An evidentiary ruling might rise to the level of a constitutional violation if a trial court 

makes a clearly erroneous ruling that excludes otherwise relevant, reliable evidence that “forms 

such a vital portion of the case that exclusion effectively precludes the defendant from presenting 

a defense.” Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier v. State, 

68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). Such is the case when an erroneous ruling excludes 

evidence that goes to the heart of the defense. Id.

Arellano asserts on appeal that, by excluding evidence of the Juarez incident, the trial court 

prevented him from presenting the defensive theory that “members of the Juarez cartel had placed 

the drugs in Appellant’s truck without Appellant’s knowledge.” But, at trial, counsel for Arellano 

specifically informed the trial court that he was not attempting to prove that the kidnappers placed 

the drugs in the truck: “We are simply telling the jury what happened and nobody is implying or 

saying these people put this in the—in the compartment.” Counsel further explained that this was 

the only time the truck was out of Arellano’s control and that he simply wanted to provide the jury 

with context:

It’s the only explanation that he gives as to why this truck was out of his care, 

custody and control. And he doesn’t make any sense to just say, “Well, you know, 

there were a couple of hours in the first of—the first Saturday of June when this 

truck was out of my care, custody or control” unless you give the jury the whole 

picture, you know.

An appellate court must review a trial court’s ruling in light of the arguments that were 

before the trial court at the time it ruled. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 
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2004); see also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); TEX. R. APP. P. 

33.1. “The appellate court may not fault the trial court on the basis of arguments not presented to 

the trial court.” Wead, 129 S.W.3d at 129.

Arellano’s argument on appeal not only does not comport with his argument to the trial 

court, it is directly contrary to that argument. Having specifically advised the trial court that he 

was not seeking to introduce evidence of the Juarez incident to prove that the cartel placed the 

drugs in his truck, he cannot now ask this Court to hold that the trial court abused its discretion by 

failing to admit the evidence for that very purpose. In any event, we otherwise conclude that the 

proffered evidence is inadmissible even for the purpose Arellano now advances. 

A defendant may attempt to establish his innocence by showing that someone else 

committed the crime with which he is charged. Wiley, 74 S.W.3d at 406. Even so, he must show 

that the proffered evidence is sufficient “to show a nexus between the crime charged and the 

alleged ‘alternative perpetrator.’” Id. The record in this case lacks any such nexus.

Buenrostro testified, outside the presence of the jury, that she was in Arellano’s truck the 

entire time it was in the hands of the Juarez cartel, and that she saw one of the men rummage 

through the truck’s compartments. She did not, however, see anyone place drugs into any of those 

compartments. She admitted that she could not say that the drugs were placed in the truck during 

the Juarez incident, or that Arellano did not place the drugs there, himself. Arellano also testified 

that he did not see anyone put drugs in his truck, and that the kidnappers never mentioned putting 

drugs in his truck.

The proffered evidence is highly speculative on the issue of whether the cartel placed drugs 

in Arellano’s truck. Evidence of a highly speculative nature has little probative value. See id. at 
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407. It can, however, create a “great threat” of confusion of the issues by forcing the State to 

disprove a nebulous allegation that perhaps someone else committed the crime. Id. This gives rise 

to a “side trial” that may divert the jury’s focus from the case at hand. Id.

It is not sufficient for a defendant merely to offer up unsupported speculation that 

another person may have done the crime. Such speculative blaming intensifies the 

grave risk of jury confusion, and it invites the jury to render its findings based on 

emotion or prejudice.

Id. (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998)); see Dickson v. State, 

246 S.W.3d 733, 739 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (“evidence of third party 

guilt is inadmissible if it is mere speculation that another person may have committed the offense”).

The details of the Juarez incident are “precisely the type of emotionally-freighted but 

speculative evidence that trial judges properly exclude under Rule 403, whether offered by the 

State or the defendant.” Wiley, 74 S.W.3d at 408. We note that the trial court tailored its ruling to 

exclude the “emotionally-freighted” details of the kidnapping and the speculative evidence that 

the cartel placed the drugs in the truck. Yet, Arellano was permitted to testify that he did not put 

the drugs in his truck, the truck was out of his custody and control for several hours in early June 

and, when it was returned to him, he checked every compartment except the one where the drugs 

were found. He was, therefore, permitted to present evidence of the substance of his defense—that 

he did not place the drugs in the truck and was unaware that they were there. See Potier, 68 S.W.3d 

at 666 (excluding evidence is not prejudicial where defendant is not prevented from presenting the 

substance of his defense).

While the trial court excluded some of Arellano’s defensive evidence, Arellano “has failed 

to show how the trial judge’s ruling was erroneous, much less so clearly erroneous that it violated 

his constitutional rights.” Wiley, 74 S.W.3d at 408. Like the excluded evidence in Wiley, the details 
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of the Juarez incident are, at best, marginally relevant. And, insofar as Arellano relies on that 

evidence to show that the Juarez cartel placed the drugs in his truck, it is highly speculative. See 

id.

We conclude that Arellano was not deprived of his constitutional right to present a defense 

because the trial court did not abuse its discretion by excluding testimony concerning the Juarez 

incident. See id. Arellano’s sole issue is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

GINA M. PALAFOX, Justice

August 27, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)