Gurrola, Maria Estela v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARIA ESTELA GURROLA, )

) No. 08-00-00219-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 990D03789)

)

O P I N I O N

Appellant Maria Estela Gurrola appeals her conviction for tampering with government records and sentence of 2 years= confinement, probated for 5 years with a fine of $1,000 and additional restitution of $7,166. Appellant raises three issues for review by this Court. First, she argues the trial court erred in receiving the verdict of guilty because no plea was properly entered. Second, Appellant claims the trial court should have ordered a mistrial when she attempted to enter a guilty plea. Third, Appellant contends she was denied effective assistance of counsel at trial. We affirm.

In March 1998, Appellant applied for government assistance through the Texas Department of Human Services. As part of the application process, Appellant completed both a written form and an oral interview. On both the form and to the caseworker during the interview, Appellant indicated both she and her husband were unemployed, received no monthly income, and did not own a vehicle. As a result of these declarations, Appellant qualified for and received government assistance in the form of $226 per month in AFDC benefits, $615 per month in food stamps, and additional Medicaid benefits for herself and her grandchildren.

At trial, the State produced evidence Appellant had misstated the family income and assets. In particular, evidence indicated the Gurrola family owned a 1994 Ford Aerostar vehicle. Appellant=s husband also testified he had been employed since December 1997, earning a weekly income of approximately $258. The caseworker assigned to the Gurrola family testified that if this information had been truthfully and accurately reported to the department, Appellant would not have qualified for benefits. The jury ultimately convicted Appellant for entering false information on the government assistance application. Appellant elected sentencing by the trial judge. She now brings this appeal.

With her first issue, Appellant complains the jury verdict was void as a matter of law because neither she nor her counsel entered a plea of not guilty before the jury. Just before the indictment was read to the jury, defense counsel approached the bench and advised the court and the prosecutor that his client might enter a guilty plea. The indictment was then read aloud and the court asked Appellant how she plead. Appellant responded by pleading guilty. The trial court then removed the jury from the court and requested the prosecutor prepare plea papers. As the judge was speaking to the attorneys, an interpreter was relating the discussion to Appellant. As this occurred, the judge heard Appellant state that she was unsure whether she should plead guilty or not guilty. The judge then stated on record what had transpired and indicated that because Appellant was unsure how to plead, the case would proceed to the jury. After further discussion between defense counsel and Appellant, the court called Appellant as a witness outside the presence of the jury. The following exchange occurred:

The Court: Are you the same Maria Gurrola who is the Defendant in this case?

Appellant: Yes.

The Court: And you understand that you have an absolute right to have this case tried before the jury was selected while you were here?

Appellant: Yes.

The Court: And you have a right to enter a plea of not guilty?

Appellant: Yes.

The Court: And yet you=ve entered a plea of guilty?

Appellant: It=s that I=m confused. I don=t know what to do. I=m very confused. I swear I don=t know what to do, to sign or not to sign. I=m very confused.

The Court: Well, here is what the law says: If you=re confused about what to do, then the law insists that you have all your rights. So I=m going to give you your rights. I=m not going to take your plea. I=m not going to be convinced otherwise. We=re going to try this case. Have your seat.

Defense Counsel: Thank you, Your Honor.

The Court: Mr. Kopra, I suggest that you change your plea, but it=s up to you if you want to leave it guilty --

Defense Counsel: I beg your pardon?

The Court: If you want to change your plea and have her plead not guilty, she can do that.

Defense Counsel: All right.

The Court: Mr. Limas, get the jury.

Defense Counsel: Judge, would you -- on second thought, would you be able to simply instruct the jury that you have entered a plea of not guilty?

The Court: Sure.

Defense Counsel: Thank you.

The jury was then brought back into the courtroom and the trial judge told them, ALadies and gentlemen of the jury, after review of the Defendant=s plea of guilty, the Court is not going to accept such and enters a plea of not guilty for her.@ The trial then proceeded with opening statements.

Appellant now contends the court erred by entering a plea of not guilty for her. She argues that because she did not refuse to enter a plea of not guilty, the court was not allowed to enter a plea on her behalf. She further complains that the court=s action resulted in a nullity of trial that voids the verdict.

The order of proceedings in a jury trial is governed by statute. See Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon Supp. 2002). Article 36.01 mandates a defendant=s plea of not guilty be stated after the indictment is read. See Tex.Code Crim.Proc.Ann. art. 36.01(a)(2). There is no requirement the plea be entered by the defendant herself. See Cantu v. State, 939 S.W.2d 627, 646 (Tex.Crim.App. 1997); Tex.Code Crim.Proc.Ann. art. 27.16 (Vernon 1989). Nor is it necessary for the plea to be entered in the presence of the jury. Cantu, 939 S.W.2d at 646. Furthermore, a defendant may waive her right to enter a plea, and have evidence introduced on her plea, if she fails to make known her desire to plead before the jury. See Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (1953); Vasquez v. State, 653 S.W.2d 492, 495 (Tex.App.--Corpus Christi 1983), aff=d, 665 S.W.2d 484 (Tex.Crim.App. 1984).

In this case, Appellant did not object to the court=s omission under Article 36.01(a)(2). Moreover, when the trial court suggested to defense counsel that Appellant enter a plea of not guilty before the jury, Appellant=s counsel effectively declined, and instead requested the court to instruct the jury it had entered a not guilty plea on Appellant=s behalf. This is precisely what the court did. No objection to the instruction was made. Because Appellant failed to bring the omission to the trial court=s attention through a timely objection, she waived any error. Tex.R.App.P. 33.1; Seale, 256 S.W.2d at 88. We further note that this issue is also barred for review under the doctrine of invited error. See Capistran v. State, 759 S.W.2d 121, 124 (Tex.Crim.App. 1982); Heidelberg v. State, 36 S.W.3d 668, 671 (Tex.App.--Houston [14th Dist.] 2001, no pet.). Accordingly, Appellant=s first issue is overruled.

With Appellant=s second issue, she argues the trial court erred in not ordering a sua sponte mistrial at the time she entered a guilty plea. As previously discussed, Defense counsel approached the bench prior to the reading of the indictment and informed the court of the possibility that Appellant might plead guilty. Appellant now argues the court should have declared a sua sponte mistrial when the plea of guilty was entered. Appellant cites no direct authority for this contention. Instead, she argues that because the court was aware of her possible plea of guilty, the judge should have admonished her before asking for the plea. Appellant fails to explain how the court=s failure to admonish her before asking for her plea created a situation requiring a sua sponte mistrial.

We begin by noting the ordering of a mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). As a rule, once jeopardy attaches, a defendant possesses a valued right to have his or her guilt or innocence determined before the first trier of fact. See Torres v. State, 614 S.W.2d 436, 441 (Tex.Crim.App. [Panel Op.] 1981); Plunkett v. State, 883 S.W.2d 349, 354 (Tex.App.--Waco 1994, pet. ref=d). An exception to this rule exists when a defendant consents to a retrial or if a retrial is mandated by manifest necessity. Id.; Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). As such, a trial court may declare a mistrial if an impartial verdict cannot be reached. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070, 120 S. Ct. 1680, 146 L. Ed. 2d 487 (2000). A mistrial is also appropriate in cases where a verdict of conviction could be reached, but would be reversed upon appeal because of an obvious procedural error. Id. As explained by the United States Supreme Court, and adopted in Texas, a court may declare a sua sponte mistrial Awhenever, in [its] opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated . . . . [T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.@ United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824); Torres, 614 S.W.2d at 442. Because a mistrial affects a constitutionally protected right, we must determine that the trial court did not act irrationally or irresponsibly. Arizona, 434 U.S. at 515, 98 S. Ct. at 835. A trial court=s decision regarding the remedy of mistrial must reflect the exercise of sound discretion. Id. The exercise of sound discretion normally demands consideration of less drastic alternatives to a mistrial. Torres, 614 S.W.2d at 442; Harrison v. State, 788 S.W.2d 18, 22 (Tex.Crim.App. 1990).

In this instance, the trial court=s actions were both rational and responsible. Arizona, 434 U.S. at 515. Nothing in the record indicates a need for a more drastic remedy or course of action. Torres, 614 S.W.2d at 442. Appellant fails to explain how the trial judge=s actions created any form of manifest necessity requiring a suasponte mistrial. Torres, 614 S.W.2d at 442. The record simply does not reflect the urgent circumstances requisite in a sua sponte order of mistrial. United States v. Perez, 22 U.S. at 580. Finding no abuse of discretion or error on the part of the trial court, we overrule Appellant=s second issue.

The third issue on appeal concerns Appellant=s contention she was denied effective assistance of counsel at trial. She argues constitutionally ineffective assistance resulted in an unfavorable verdict of guilty by the jury. In particular, Appellant contends her counsel provided inadequate representation based on the following: (1) failure to move for a mistrial upon the court=s failure to admonish Appellant prior to the reading of the indictment; (2) failure to move for a mistrial when a plea was not properly entered; (3) failure to preserve error by objecting to admission of extraneous offenses; (4) failure to properly object and obtain a ruling on the relevancy of certain evidence; (5) failure to properly address the testimony of Jose Gurrola; and (6) failure to object to improper comments made by the prosecutor during closing argument.

Claims of ineffective assistance of counsel are reviewed according to the two-part test enunciated in Strickland v. Washington.[1] Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). A criminal defendant must first establish he or she received insufficient assistance from counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To do this, a defendant must demonstrate that counsel=s performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). Under the second prong of the Strickland test, a defendant must affirmatively prove counsel=s deficient performance prejudiced her defense. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Such prejudice is shown by establishing there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

Claims of ineffective assistance by counsel must be proved by a preponderance of the evidence, and that burden lies with the defendant. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). An appellate court looks to the circumstances of each case and considers the totality of the representation. Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986); Perrero v. State, 990 S.W.2d 896, 899 (Tex.App.--El Paso 1999, pet. ref=d). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Mallettv. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.). As such, the appellate review is highly deferential to trial counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). Finally, all claims of ineffective assistance must be founded firmly in the record. McFarland, 928 S.W.2d at 500; Perrero, 990 S.W.2d at 899. If the record on appeal is undeveloped and does not adequately demonstrate the failings of trial counsel, then the ineffective assistance of counsel claim will not prevail. See Thompson, 9 S.W.3d 808, 813-14.

In the case before us, Appellant failed to establish a record of counsel=s deficient assistance. No Motion For New Trial was ever filed and no hearing was held on the issue of defense counsel=s assistance. As a result, Appellant=s claims related to ineffective assistance of counsel are not supported by the record before us. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Perrero, 990 S.W.2d at 899. Because the record does not establish the reasons behind the trial attorney=s actions, Appellant has failed to rebut the strong presumption that the actions taken by her trial counsel fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. Appellant=s third issue on appeal is overruled.

Having overruled each of Appellant=s issues raised for review, we affirm the judgment of the trial court.

August 15, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).