Texas Stamp


PD-0197-16 05/25/2016

"Did the court of appeals properly apply either prong of Strickland v. Washington when it affirmed a new trial based on defense counsel's allegedly deficient advice to proceed with an 11-member jury?"

The State and Gutierrez's counsel agreed to proceed with eleven jurors after one of the twelve revealed that he knew the police officer who just testified. Despite finding that the juror was not biased, the trial court dismissed the juror, and the eleven-member jury found Gutierrez guilty. Gutierrez moved for a new trial, arguing that his attorney rendered ineffective assistance by failing to advise him of his right to urge a mistrial based before agreeing to proceed with eleven jurors. At the hearing on the motion, counsel stated that he did not adequately advise Gutierrez of his options. The trial court granted Gutierrez's motion.

The State appealed. The court held that counsel's failure to advise Gutierrez of the options, which counsel conceded was inadequate, was not based on reasonable trial strategy. The issue is whether Gutierrez was informed of the mistrial option, not whether counsel made a strategic decision after discovering the possibility that one juror was biased. The court then concluded that Gutierrez was prejudiced. Gutierrez stated that he would have requested a mistrial and, given the circumstances, it would have been granted. The court added that the decision to proceed with eleven jurors lessened the State's burden.

Addressing the deficiency prong, the State argues that seeking a mistrial was not the only viable way to preserve Gutierrez's right to a twelve-member jury because the trial court had concluded that the juror was not biased. So the only viable options were for counsel to proceed or not proceed with that juror. Further, the court wrongly ignored other strategies by assuming that moving for a mistrial was the only valid strategy. The record does not show that counsel would have changed his strategy even if Gutierrez asked that he move for a mistrial; that decision ultimately belongs to counsel. The State also claims that there is no prejudice because the judge would have denied a mistrial motion because he found the juror was not biased. And an eleven-member jury, contrary to the court of appeals, does not necessarily mean the verdict rendered will be unfavorable for a defendant.

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