State v. Rene Gutierrez

Citation: Not availableDocket: 13-13-00183-CR

Court: Court of Appeals of Texas; December 2, 2015; Texas; State Appellate Court

Original Court Document: View Document

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Rene Gutierrez was found guilty by an eleven-member jury of two counts of aggravated assault with a deadly weapon and one count of harassment of a public servant, resulting in a twenty-year prison sentence imposed by the trial court. Following the conviction, Gutierrez filed a motion for a new trial, which the trial court granted after an evidentiary hearing. The State of Texas appealed, arguing that the trial court abused its discretion in granting the new trial. 

The case background includes an incident on February 4, 2012, where Gutierrez was arrested for brandishing a knife at bouncers outside a bar and subsequently spitting on a police officer. During jury selection, a juror disclosed a prior acquaintance with the police officer, expressing uncertainty about his ability to remain impartial. Despite the trial court's initial assessment that there was no cause to strike the juror, it proposed proceeding with eleven jurors instead. After discussions, both parties agreed to this course of action, leading to the trial's continuation without the dismissed juror. The trial proceeded with testimony indicating Gutierrez's aggressive behavior outside the bar.

Gutierrez brandished a knife and swung it at two bouncers from a distance of three to four feet but did not lunge or approach them closer. A police officer was called, and after interviewing witnesses, decided to arrest Gutierrez, who resisted and was pepper-sprayed twice. Following his arrest, Gutierrez spat at the officer multiple times. At trial, he was found guilty of assaulting the bouncers and harassing the officer. Gutierrez filed a motion for a new trial, claiming ineffective assistance of counsel for not fully informing him about his option to seek a mistrial instead of proceeding with eleven jurors. He testified that he would have opted for a mistrial had he known. His trial counsel acknowledged a lack of experience with such a situation and admitted to not adequately advising Gutierrez. Additionally, Gutierrez argued that there was insufficient evidence for the assault charges, as he did not lunge at the bouncers, and contended that his spitting was involuntary due to the pepper spray. The trial court granted the motion for a new trial, citing ineffective assistance of counsel and insufficient evidence for the aggravated assault charges. Subsequently, the State requested findings from the trial court, which indicated that Gutierrez’s counsel was unprepared and did not conduct any investigation, affirming the decision for a new trial in the interest of justice. An appeal followed.

The State argues that the trial court erred in granting Gutierrez a new trial, stating that the defendant bears the burden to prove grounds for such a motion. Under Texas law, the State has the right to appeal a new trial order, and on appeal, it must demonstrate that the trial court abused its discretion in making that ruling. The appellate court reviews the trial court's decision for reasonable disagreement, presuming that the trial court acted correctly and deferring to any supported factual findings.

The State challenges the trial court’s conclusions that (1) the jury's verdict was contrary to the law and evidence, and (2) Gutierrez's counsel was ineffective. If the trial court is correct regarding the verdict being contrary to the law and evidence, Gutierrez would be entitled to an acquittal. Conversely, if the ruling is based solely on ineffective assistance of counsel, he would receive a new trial but not an acquittal.

In assessing whether the trial court abused its discretion regarding the verdict's legality and evidentiary support, it's noted that a motion for a new trial based on evidence insufficiency presents a legal question. The trial court must evaluate whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt, considering the evidence in the light most favorable to the original verdict.

The jury serves as the sole judge of the facts, witness credibility, and the weight of testimony, and if the evidence meets the sufficiency standard, a trial court's decision to grant a new trial based on a verdict being contrary to law and evidence constitutes an abuse of discretion. The sufficiency of evidence is assessed by the elements of the offense as defined by an accurate jury charge, which must reflect the law, align with the indictment, and adequately describe the offense. In the case of Gutierrez, he was found guilty of two counts of aggravated assault with a deadly weapon against bouncers. Under the hypothetically correct jury charge, he was guilty if he intentionally or knowingly threatened the bouncers with imminent bodily injury while using or exhibiting a deadly weapon.

A "deadly weapon" can include anything capable of causing death or serious bodily injury, as per the Texas Penal Code. Testimony indicated that after being ejected from a bar, Gutierrez brandished a six-to-seven inch folding knife, swinging it from three-to-four feet away while yelling profanities. Both bouncers felt threatened by his actions. Gutierrez contended that the evidence was insufficient since he did not lunge at them and remained at least a yard away. However, a reasonable jury could still conclude that he threatened them with imminent bodily injury by swinging the knife in that manner, as demonstrated in a precedent where similar circumstances supported a finding of aggravated assault with a deadly weapon.

The trial court's review of Gutierrez's motion for a new trial focused on whether a reasonable jury could have found him guilty beyond a reasonable doubt, without assuming the role of a juror. The court determined it abused its discretion by concluding that the jury's verdict on aggravated assault counts was contrary to the law and evidence, as no reasonable interpretation of the record supported such a finding. For the harassment of a public servant charge, the jury found Gutierrez guilty of spitting on an officer, which constituted an offense if done with the intent to assault, harass, or alarm. Gutierrez claimed he lacked intent due to involuntary spitting caused by pepper spray, but the officer testified that Gutierrez's actions were intentional and targeted, allowing the jury to infer intent from the circumstances. The trial court improperly vacated the harassment conviction based on its flawed interpretation of the jury's findings. 

Additionally, the court considered Gutierrez's claim of ineffective assistance of counsel, governed by the Strickland v. Washington two-prong test, which assesses whether counsel's performance was deficient and whether the deficiency affected the outcome. The appellate review of the trial court’s application of this standard is conducted under an abuse of discretion framework rather than de novo.

To establish ineffective assistance of counsel, the defendant must specify acts or omissions of counsel that are not justified by reasonable professional judgment. Courts will assess whether these acts fall outside the broad spectrum of competent assistance. A strong presumption exists that counsel's conduct is sound strategy if the record does not explain the challenged actions. To overcome this presumption, the defendant must provide substantial evidence in the record. Under Strickland’s second prong, the defendant must also demonstrate that counsel's deficient performance caused actual harm to the defense, showing a "reasonable probability" that the trial's outcome would differ absent the deficiency.

In Gutierrez's case, he claimed his trial counsel failed to inform him about the option to move for a mistrial after a juror disclosed a prior association with Gutierrez’s alleged victim. The trial court's decision to grant a new trial suggested a finding of deficient performance, as the counsel did not adequately explain the mistrial option, which failed to meet objective standards of reasonableness. The State contested this finding, arguing that Gutierrez did not provide evidence to counter the presumption of strategic decision-making by counsel regarding the jury composition. However, the State's argument mischaracterized the issue, which centered on whether Gutierrez was informed about the right to request a mistrial, rather than the strategic decision to proceed with eleven jurors.

The record revealed that trial counsel did not formally request a mistrial; he only indicated he would do so if an agreement on proceeding with eleven jurors could not be made. Gutierrez, unaware of his procedural options, consented to the eleven-member jury. The trial court correctly determined that the evidence presented at the new-trial hearing refuted the presumption of reasonable counsel advice, as Gutierrez testified he had not been informed about preserving his right to a twelve-member jury through a mistrial request.

Trial counsel for Gutierrez could not recall if he informed his client about the option of requesting a mistrial, citing insufficient time and experience to properly advise him. The trial court found that this constituted ineffective assistance of counsel under Strickland’s first prong. For Strickland’s second prong, the court evaluated whether this inadequate advice prejudiced Gutierrez, specifically whether the trial outcome could have been different. Under Texas law, a felony trial typically requires a twelve-member jury, with exceptions only if both parties agree or if a juror is dead or disabled. In this case, the juror dismissed was neither dead nor disabled due to bias, which meant Gutierrez's trial could not proceed without his consent to a reduced jury. Gutierrez stated he would not have agreed to continue with fewer than twelve jurors if he had known about the mistrial option.

Had he insisted on a mistrial, the trial court would have faced two choices: declare a mistrial due to the juror's bias and empanel a new jury, or maintain the jury and risk an appeal. The trial court's granting of Gutierrez's motion for a new trial implied it would have opted for a mistrial. The State contended that the trial court’s prior comment about the juror's lack of bias undermined any finding of prejudice. However, the court determined that because a mistrial was never formally requested, there was no opportunity to fully assess the juror's bias. The court emphasized that the trial court's decision to declare a mistrial is typically accorded deference on appeal. Ultimately, the record supported a finding that a mistrial was warranted, given the dismissed juror's acknowledgment that his friendship with a police officer would compromise his impartiality.

A mistrial is warranted if juror bias is discovered after jeopardy has attached, as established in Simmons v. United States and Villanueva v. State. In this case, the trial court found that the failure of Gutierrez's counsel to request a mistrial deprived him of his right to a twelve-member jury under the Texas Constitution. This failure potentially reduced the State's burden of proof since it needed to convince only eleven jurors instead of twelve for a conviction, as highlighted in McClellan and Carrillo. The trial court determined that this error undermined confidence in the trial's outcome, thus justifying a new trial. The court concluded that Gutierrez met the second prong of the Strickland test regarding ineffective assistance of counsel. Consequently, the court affirmed the order granting Gutierrez a new trial and overruled the State's appeal.