Delacruz v. State

Full title: JULIO DELACRUZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 19, 2004

No. 05-03-00236-CR (Tex. App. Feb. 19, 2004)

Opinion

No. 05-03-00236-CR.

Opinion Filed February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265^Th Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-23870-R. Affirmed.

Before Justices THOMAS, MOSELEY, and MALONEY.¹

1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice MALONEY.

The jury found Julio Delacruz guilty of Intoxication Manslaughter on his plea of guilty and assessed a twenty-year sentence. In a sole point of error, appellant contends the trial court erred in admitting evidence of appellant's immigration status because the possibility of deportation caused the jury not to consider a possible probated sentence. We affirm the trial court's judgment.

BACKGROUND

At 8: 26 on a clear May morning, appellant was driving home after a night of drinking. He ran a red light and hit a small blue car. The driver of the blue car died at the scene.

DID THE TRIAL COURT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE OF APPELLANT'S IMMIGRATION STATUS?

Appellant complains the trial court abused its discretion in admitting appellant's immigration status because the State went beyond establishing illegal entry. Rather, the State's "speculation of deportation" when questioning appellant and arguing to the jury effectively removed probation from the jury's consideration. He argues the jury would have inferred that a Immigration and Naturalization Service hold was evidence of illegal entry.² The State responds that a defendant's status as an illegal alien is relevant to punishment.

1. Applicable Law

We review the trial court's ruling in admitting or excluding evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We do not disturb that ruling on appeal if it is within the zone of reasonable disagreement. See id.

2. Application of Facts to Law

Outside the presence of the jury, the trial court held a hearing on appellant's motion in limine regarding the State's referring or alluding to the immigration status of appellant or any witness. No evidence was presented, only argument of counsel. After argument, the trial court ruled that whether a defendant could remain under the court's jurisdiction was relevant to his application for probation. Additionally, the trial court limited the State's questioning to appellant and to the issue of the court's jurisdiction. Appellant recognizes that in Infante, the defendant unsuccessfully contended "the trial court improperly considered that he was an illegal alien." See Infante v. State, 25 S.W.3d at 727. But, he distinguishes Infante in that the judge, not the jury, assessed punishment, and the State never established Infante was an illegal alien.³ Appellant misplaces his reliance on these "distinguishing" facts. We see no distinction in whether the trial court or the jury assesses punishment. We look to the evidence presented to determine what the factfinder, judge or jury, took into consideration in assessing punishment. See Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992) (holding that former rule 81(b) voided the "presumption test"). Additionally, as in Infante, no evidence shows that appellant was an illegal alien. Rather, the only evidence before the jury was that appellant was from Mexico and he might be deported to Mexico after being convicted of this felony. Assuming, without deciding, the trial court erred in admitting evidence appellant's possible deportation, we must decide whether that nonconstitutional error affected a substantial right of the defendant. See Tex.R.App.P. 44.2(b).

HARMLESS ERROR 1. Applicable Law

The rules of appellate procedure provide as follows:

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Id. In applying Rule 44.2(b) and determining whether the error affected a defendant's substantial right, we must decide if the error had a substantial or injurious effect on the jury's verdict. Llamas v. State, 12 S.W.3d 469, 471 n. 2 (Tex.Crim. App. 2000). After examining the record as whole, we must have "fair assurance that the error did not influence the jury, or had but a slight effect" on the jury. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000).

2. Application of Facts to Law

Our review of the testimony at trial reveals only one specific reference to the possibility of appellant's pending deportation. The State briefly questioned appellant's ability to fulfill the terms and conditions of probation with the possibility of deportation. In response, appellant admitted that he could be deported, but never stated he was in this country illegally. The State did not pursue this line of questioning. The State questioned appellant mostly about the facts surrounding the collision and his drinking habits. In its argument, the State did not emphasize appellant's legal status. Rather it argued the facts of the case. Appellant testified to his acts on the night before the collision, his family, and his remorse. On the night before the collision, appellant had gone to a bar alone and had been drinking for some ten hours. He agreed that he had at least one and maybe two or three beers every hour-between twenty and thirty beers-until he left the bar the next morning. He left the bar, got into his van, and started home. While driving home from the bar, he ran a red light and hit the small blue car. A police officer, who specialized in accident reconstruction, testified appellant's van was traveling over fifty-one miles per hour in a thirty-five mile per hour zone. Other witnesses testified that the blue car was stopped at a red light. When the light turned green, the blue car entered the intersection. As the blue car reached the middle of the intersection, appellant's van hit the blue car, caving in the left front fender and the driver's door. Another police officer working patrol happened on the scene immediately after the collision and inventoried both automobiles. In appellant's van, he found an open beer can in a plastic bag that still contained beer as well as several crushed beer cans. Three witnesses, whose vehicles were stopped at the intersection at the time of the crash, testified that appellant made no attempt to stop before he hit the blue car. Everyone who had any contact with appellant that morning testified that appellant reeked of alcohol. Additionally, his blood test showed a .10 alcohol level. At the scene, appellant told paramedics that he had about five beers and was driving about thirty miles per hour. Appellant testified that he never saw the deceased or his car and had no idea he was speeding. Nor did he did see the red light or any cars around him. He only felt a bump before his car crashed. We considered the entire record — the testimony or the physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error and its connection with other evidence, the jury instructions, closing arguments, and the State's and appellant's theory at trial. Having reviewed the evidence the jury heard in this case, we have "fair assurance" that the brief mention of possible deportation did not influence the jury or, at most, had no more than "a slight effect" on the jury. We resolve appellant's sole issue against him and affirm the trial court's judgment.