The Herald Banner, Greenville, TX

Monday Newspaper

June 9, 2014

New sentencing hearing in aggravated robbery case

GREENVILLE — A Caddo Mills man, sentenced to prison for a 2010 hold-up of an area convenience store, will receive a new punishment hearing in the case.

A state appeals court ruled in March that Miguel Alberto Gutierrez received ineffective defense after a prosecutor improperly referenced his immigration status during his trial.

The 196th District Court has issued a bench warrant for Gutierrez to be returned to local custody by June 18. A date for the sentencing hearing had not been set as of Friday.

The Court of Appeals for the Fifth District of Texas at Dallas ruled Gutierrez’s 2012 conviction should stand, but overturned his 30 year prison sentence and $10,000 fine.

“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,” said Justice Michael J. O’Neill in the opinion. “After reviewing the entire record, we conclude the probability of prejudice 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.”

Gutierrez entered a plea of guilty in August 2012 to one count of aggravated robbery causing serious bodily injury.

A jury then heard testimony during a punishment hearing before returning with the sentence.

Gutierrez was alleged to have acted along with a juvenile in robbing the store U.S. Highway 380 just outside of Caddo Mills, on Oct. 11, 2010. The pair were alleged to have beaten a female employee of the store with their hands, fists, a DVD box and an unknown object to where the employee lost consciousness with a concussion. Gutierrez was arrested on Oct. 26, 2010.

The aggravated robbery charge is a first degree felony, punishable upon conviction by a maximum sentence of from five to 99 years to life in prison and an optional fine of up to $10,000.

According to the appeal ruling, the prosecutor with the Hunt County District Attorney’s office made repeated references to Gutierrez’s status as an unauthorized immigrant, who was brought to the United States when he was 5 years old, arguing in part that the status would not make the defendant a good candidate for probation.

O’Neill said the appeals court had “concluded the prosecutor’s questioning and arguments were improper” and also looked at the defense counsel’s failure to object to the statements.

“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,” O’Neill said. “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.”

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