Background
During a traffic stop on a rural ranching road in Kinney County, Texas, a sheriff’s deputy noticed that three passengers in Gutierrez’s back seat were slouched down and not wearing seatbelts. Border Patrol determined that the passengers were in the United States illegally. Gutierrez was charged with three counts of “knowingly using a motor vehicle to transport an individual with intent to conceal the individual from a peace officer” under Tex. Penal Code Ann. §20.05(a)(1)(A), (b). A jury found Gutierrez guilty, and she was sentenced to ten years’ imprisonment. Gutierrez filed a motion for new trial, arguing that the statute under which she was convicted was “unconstitutional as it was applied to her because it is preempted by federal immigration law.” The motion was denied.
Gutierrez’s Arguments on Appeal
In her brief, Gutierrez advanced four arguments. First, Gutierrez argued that the smuggling statute is “both field and conflict preempted” by federal law. In support of her field preemption argument, Gutierrez relied on State v. Flores, a 2023 Fourth Court of Appeals Case. The Flores court noted that “the clear and manifest purpose of Congress was to completely oust state power from this area of regulation leaving no room for analogous state crimes.” While Flores ultimately held that § 20.05 has “legitimate applications” and thus was not facially unconstitutional, the court left open the question of constitutionality as applied.
In support of her conflict preemption argument, Gutierrez noted that multiple federal circuit courts and the Colorado Supreme Court have ruled that it is unconstitutional for states to “prosecute the smuggling of noncitizens.” Gutierrez heavily relied on Fuentes-Espinoza v. People, a 2017 Colorado Supreme Court Case.
- State v. Flores, 679 S.W.3d 232 (Tex. App.—San Antonio 2023, pet ref’d). Gutierrez’s case was referred from the Fourth Court of Appeals.
- Id. at 245.
- Id. at 250–51.
- Fuentes-Espinoza v. People, 408 P.3d 445, 452 (Colo. 2017).
In her second point of error, Gutierrez argued that the trial court erred when it failed to strike for cause two venire members who expressed beliefs contrary to the presumption of innocence. In her third and fourth points of error, Gutierrez argued that the sheriff deputy’s testimony about Border Patrol’s determination about the passengers was a violation of the Confrontation Clause and inadmissible hearsay and that testimony about the passengers’ ID cards was inadmissible hearsay.
The State’s Arguments on Appeal
In its brief, the State relied heavily on State v. Flores, arguing that controlling caselaw already found that § 20.05 was not preempted by federal law. The State made an interesting argument:
The tangential immigration facts in this case only serve as one methodology to satisfy the smuggling statute, just like smuggling a group of underage girls for sex trafficking is one way to offend the smuggling statute. One could not reasonably argue that the smuggling statute is discriminatory and violates equal protection simply because only female victims were involved. The same analogy holds true here . . . simply because illegal immigrants were apprehended, does not mean that immigration law was implicated, and therefore, necessarily preempted.
The State also argued that Gutierrez’s indictment did not reference the immigration status of the passengers, and therefore was not related to immigration.
As to Gutierrez’s second point of error, the State blamed the defense for any confusion during voir dire, citing “vague and unclear questioning,” and pointed out that the “defense challenged for cause over 80% of the venire.” The State also alleged that the two prospective jurors in question were successfully rehabilitated. The State’s argument heavily quoted from the record.
Finally, as to the third and fourth points of error, the State argued that the sheriff deputy was simply testifying to background information about her investigation, and did not testify to any hearsay statements.
Gutierrez’s Reply Brief
In her reply brief, Gutierrez reiterated that the Flores decision did not reach the as-applied challenge to the constitutionality of § 20.05, and that the challenge was properly raised on direct appeal. She also provided more context and record cites for her last three points of error.
Majority Opinion
The majority opinion in Gutierrez held that § 20.05(a)(1)(A) as applied to Gutierrez, was conflict-preempted by federal law and therefore unconstitutional.
First, the Court pointed out that Flores solely focused on a facial preemption challenge, and quoted the Flores court in saying that the preemption claim “may be persuasive in the context of a preemption-as-applied challenge.” The Court described their finding that “Congress’s purpose was to create a ‘comprehensive framework’ governing” unauthorized immigration issues as part of “the apparently unanimous view of courts nationwide.”
In response to the State’s analogy in their brief, the Court explained if the federal government had established a “comprehensive framework” regarding sex trafficking, the statute in the State’s example also may have been preempted. Further, the Court rejected the State’s argument that there was not an “immigration motive” in Gutierrez’s prosecution, citing testimony about the passengers being “in the United States illegally” and about Border Patrol. Although the immigration status of the passengers was not, as the State contended, necessary for the indictment, the Court held that Gutierrez was “in fact prosecuted for her transportation and concealment from law enforcement of undocumented noncitizens.” The Court pointed to: 1) the fact that the sheriff’s deputy did not arrest Gutierrez until Border Patrol had determined the passengers’ immigration status and 2) the State’s reliance on the passengers’ immigration status, especially in its closing argument, to prove the element of “intent to conceal.”
The Court did not reach Gutierrez’s other three issues.
Dissenting Opinion – “Texas’s problems require Texas’s solutions.”
Justice Silva dissented from the holding of the majority, objecting that the Attorney General was not given proper notice of the state constitutional challenge under Texas Government Code § 402.010,
- Gutierrez, 2024 Tex. App. LEXIS 8691, at *12 (quoting Flores, 679 S.W.2d at 247).
- Id. at *13 (quoting Ga. Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1263 (11th Cir. 2012)) (collecting cases).
- Id. at *17.
because the opinion was issued thirty-two days after the AG was notified, rather than forty-five days, as required by law.
The majority opinion stated that the AG was informed of the constitutional challenge in February 2024 when Gutierrez filed a motion for new trial, and that the reporting requirement of § 402.010 was met. The majority characterized the November 14, 2024, notice to the AG as “[o]ut of an abundance of caution.” However, Justice Silva in her dissent noted that “Nothing in the statute excuses appellate courts from full compliance with § 402.010 simply because the same constitutional challenge was filed in a different pleading in the trial court and notice of that trial court challenge was given to the attorney general.”
The dissent also concluded that § 20.05(a)(1)(A) was neither field nor conflict-preempted as applied to Gutierrez’s prosecution. The dissent stated that the majority holding “will have a very restricted scope,” explaining:
By limiting the application of its opinion to cases where the record is clear that prosecution is being brought for an “immigration motive,” the majority opinion carves out from its holding any prosecutions under § 20.05(a)(1)(A) in which the smuggled persons are undocumented noncitizens, but law enforcement does not rely on that fact to arrest, and prosecutors do not rely on that fact to convict.
The second part of Justice Silva’s dissent focused on what she characterized as “the majority’s erroneous holdings on preemption.” Justice Silva began by laying out the situation at the border, citing the Fifth Circuit, Border Patrol reports, DPS agent testimony from other cases, and the New York Times. The dissent goes on to explain “The majority opinion does not assert, nor did Gutierrez argue below, that Congress explicitly prohibited the States from enacting state laws regarding human smuggling that could be applied when undocumented noncitizens were the smuggled victims.” Justice Silva also writes that “the presumption against preemption” should have applied to the analysis in this case.
State v. Flores
Both sides in Gutierrez heavily relied on the Fourth Court of Appeals case, State v. Flores, in their briefing. In Flores, the State appealed the trial court’s decision to quash seven indictments for “third-degree felony smuggling of persons.” The appellate court reversed and remanded.
In Flores, the defendants were charged under Texas Penal Code § 20.05(a)(1)(A). They moved to quash their indictments on “preemption, Fourth Amendment, vagueness, and equal protection grounds.” The appellate court construed their arguments both at the trial court level and in their appellate briefing as a facial challenge to the statute, noting that the record was not developed enough for an as-applied challenge. Ultimately, the Flores court found that the neutral language of the statute meant that it was not facially preempted.
As to the other constitutional challenges to the statute, the Flores court found that the statute was not facially a violation of the Fourth Amendment, not unconstitutionally vague, and not an Equal Protection violation.
State v. Burciaga, No. 08-23-0034-CR, 2024 Tex. App. LEXIS 6233 (Tex. App.—El Paso Aug. 23, 2024, pet. filed).
State v. Burciaga is another case relevant to this topic. In this case, the defendant was indicted under § 20.05(a)(1)(A). He moved to quash the indictment on various constitutional grounds, including preemption, selective enforcement, overbroadness, and vagueness. After a hearing, the trial court judge granted the motion, but did not specify a basis for the ruling.
The Eighth Court of Appeals started by addressing the defendant’s as-applied challenges. Like Flores, because the case had not gone to trial, the as-applied challenges could not yet be heard. Then, the Court analyzed the facial challenges to the statute, finding 1) the statute was a valid exercise of Texas’s police powers and was not preempted; 2) the defendant failed to establish that the statute was facially vague, and 3) the statute was not a Fourth Amendment violation. The case was reversed and remanded.
There is one concurring opinion and one dissenting opinion in Burciaga. In the dissent, Justice Soto wrote “I believe current Court of Criminal Appeals’ precedent allows this pretrial challenge because Burciaga cannot be prosecuted under a state statute if, as applied, it is preempted by federal law . . . .” Citing to the record, Justice Soto concluded that it was undisputed that the defendant “is being prosecuted solely because he was transporting and concealing undocumented noncitizens who were allegedly in the country illegally.” Justice Soto concluded that the statute in question was preempted and that she would affirm the trial court’s order.
The concurring opinion, written by Chief Justice Alley, responds to the dissent’s argument, offering factual support from the record to show that the statute was not preempted “either on its face or as applied.”
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