Ineffective assistance of counsel and mistrials explained

Makenzie KeeneVolume 50 Staff Member


The issue in this case was whether the court of appeals erred in affirming the decision of the trial court to grant a new trial due to ineffective assistance of counsel. The Court of Criminal Appeals reversed the decision, holding that the court of appeals erred because the wrong standard of review was applied to the determination.

Rene Gutierrez, Appellee, caused a disturbance at a bar during which police were called. The Appellee was arrested shortly thereafter by Officer Ruben Ramirez. The Appellee repeatedly spit on Officer Ramirez and his vehicle while first being transported to a hospital for medical clearance and then to the jail. Officer Ramirez restrained the Appellee and outfitted him with a spit shield after the Appellee kicked his knee caps. The Appellee was indicted with three counts of aggravated assault, one count of assault on a public servant, and one count of harassment of a public servant. At trial, following the swearing-in of Officer Ramirez to testify, one of jurors said, “Judge, I know [the witness]….” The judge excused the jury, questioned the juror, and decided the trial would continue due to the non-existence of juror bias, but that the parties could agree to dismiss the juror and try the case with eleven jury members. Defense counsel advised his client to proceed with eleven jury members, and the State agreed to remove the twelfth juror. The eleven-member jury convicted the Appellee of three of the five charges. The Appellee filed a timely motion for new trial, arguing he would have requested a mistrial but for counsel’s advice to proceed.  A motion for new trial was granted, and the State appealed. The court of appeals found no abuse of discretion because a trial court could have reasonably found the Appellee’s right to a twelve-member-jury trial was abridged, and because a mistrial request by the Appellee would have likely been granted.   The State then filed a petition for discretionary review.

The State argued the granting of a new trial was erroneous because the trial court misapplied the two-pronged test of Strickland v. Washington, which provides a defendant must prove his attorney’s performance was 1) deficient and 2) the deficiency prejudiced him. To meet the prejudice prong, a defendant must prove that absent the failure to advise the client, there is a reasonable probability the outcome of the case would have been different.  Here, the Appellant argued that had he been specifically informed of his right to a twelve-person jury, he would have requested a mistrial. The Court of Criminal Appeals held the appropriate standard is not whether any court would have granted a mistrial, but instead whether that particular trial court would have likely granted one, and that nothing in the record supported that finding. The record in this case showed the judge, in trying to move the trial along, determined the juror was not biased, and thus there was no indication a mistrial for juror bias would have been granted by that court. The Court of Criminal Appeals, further held the trial court would not have abused its discretion in denying a motion for mistrial if the Appellant had so requested. This Court, in reversing the court of appeals, vacated the order for new trial and reinstated the judgment of the trial court.

State v. Gutierrez, No. PD-0197-16 (Tex. Crim. App. Oct. 18, 2017).