Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 319th District Court of Nueces County, Texas.
Justices Rodriguez, Contreras, and Benavides.
V. RODRIGUEZ Justice.
Andrew Stubbs appeals from the denial of his motion for new
trial following his conviction for three counts of sexual
assault of a child. By two issues, Stubbs asserts that the
trial court erred in denying a new trial on grounds of
ineffective assistance of counsel and newly discovered
evidence. We affirm.
indictment alleged that on or about October 20, 2015, Stubbs
sexually assaulted a child, a felony of the second degree.
See Tex. Penal Code Ann. § 22.011(a)(2), (f)
(West, Westlaw through 2017 1st C.S.). The child, whom we
refer to as "L.R., " was the fourteen-year-old
daughter of Stubbs's long-time girlfriend.
undisputed that on January 27, 2016, L.R. filled out a
"Victim Impact Statement" in which she recanted her
allegations against Stubbs (the "written
recantation"). In the written recantation, L.R. wrote
that at the time she reported the assault, she had been sad
because Stubbs was causing her mother to not pay attention to
her, and in order to "get rid of" Stubbs, she lied
to a school counselor about being assaulted. L.R. apologized
for lying and wrote that Stubbs "never did put a hand on
me" or "touched me, " that she felt guilty,
and that she loved Stubbs, who "is like a dad to
April 7, 2016, Stubbs pleaded guilty pursuant to a plea
agreement with the State. The trial court accepted the
State's recommendation, deferred adjudication, and placed
Stubbs on community supervision for ten years. During the
plea proceedings, the following colloquy took place:
THE COURT: . . . Mr. Stubbs, have you gone over with your
[STUBBS]: Yes, sir.
THE COURT: -regarding the charge pending against you in the
[STUBBS]: Yes, sir. At this point I just want my life back.
response to the trial court's verbal admonitions, Stubbs
indicated that he was satisfied with the advice of his
appointed trial counsel ("Counsel"); that he
understood that the range of punishment was two to twenty
years; that he was pleading guilty freely, voluntarily, and
not due to coercion; and that he would have "a duty to
report and that would last for as long as the rest of [his]
life." Stubbs also initialed written statements
acknowledging his understanding that the trial court would
impose the terms of community supervision, regardless of
whether Stubbs agreed to the terms, and his understanding
that if the trial court adjudicated guilt, it could sentence
him to the maximum term of confinement for the underlying
days later, the State filed a motion to revoke Stubbs's
community supervision. The motion alleged that Stubbs
committed two violations of the terms of his community
supervision: (1) Stubbs possessed a firearm and (2) he was
seen near the residence of L.R.'s mother. Stubbs was
appointed a new attorney.
hearing on May 4, 2016, Stubbs informed the trial court that
he was ready to proceed on the State's motion to revoke,
subject to his right to file a motion for new trial regarding
the original plea proceedings. Based on the State's
evidence, which Stubbs does not challenge on appeal, the
trial court found the State's allegations true, revoked
Stubbs's community supervision, adjudicated guilt on
three counts of sexual assault, and pronounced concurrent
sentences of eighteen years' confinement on each count.
9, 2016, Stubbs filed a motion for new trial on the basis of
ineffective assistance of counsel and the discovery of new
Newly Discovered Evidence
motion for new trial, Stubbs alleged three forms of newly
discovered evidence. The first was a recording in which L.R.
again recanted her allegation that Stubbs sexually assaulted
her (the "video recantation"). However, at the
hearing on Stubbs's motion for new trial, he agreed that
he was aware of the video recantation prior to his guilty
plea, as his niece Trisha Caley had informed him of the video
and described its content. Stubbs further testified that he
did not ask to view the video, even though he knew that Caley
had given a copy to Counsel.
second form of new evidence was the results from a forensic
kit which showed that Stubbs's DNA was not present in any
sample collected from L.R. on the day after the alleged
assault. Stubbs agreed that prior to his plea, Counsel had
mentioned that a sample had been collected from L.R., but
Stubbs testified that Counsel never explained that a test was
going to be performed or what the results could mean for his
third item of new evidence was a Facebook post by L.R.'s
mother on October 22, 2015-two days after the alleged assault
and one day after Stubbs's arrest. The post read,
"Yay I'm single thank god but hell it's worth it
I don't give a dam [sic]."
argued that he was entitled to a new trial based on the three
items of newly discovered evidence.
Ineffective Assistance of Counsel
remainder of the evidence at the hearing focused on
Stubbs's claim that his plea was not voluntary because of
ineffective assistance. In support of this claim, Stubbs
offered his own testimony and elicited testimony from the
following: Counsel; Stubbs's second appointed attorney,
who represented Stubbs at the hearing on the State's
motion to revoke community supervision; and his niece, Caley,
who captured the video recantation.
testified that Counsel was deficient in multiple ways. As
mentioned previously, Stubbs testified that Counsel never
advised him of the DNA test. For another, Stubbs testified
that Counsel lost his copy of the video recantation. When he
was provided with another copy, Counsel responded that it was
"irrelevant" because he was already working on a
plea deal with the State.
further testified that his Counsel briefly mentioned that
L.R. had also made a written recantation on January 21, 2016,
but Counsel did not describe the content of that recantation,
show it to Stubbs, or explain its impact on the case.
According to Stubbs, Counsel never showed him any of the
other discovery received from the State except for briefly
showing him one item of evidence "through the
glass" at Stubbs's facility.
generally, Stubbs testified that during the course of the
representation, Counsel met with him five times for roughly
five to ten minutes each, and between meetings, neither he
nor his family could reach Counsel because he did not answer
his phone. Stubbs testified that he wrote to the trial court
multiple times concerning Counsel's non-responsiveness,
and in response, the trial court ordered Counsel to visit
also testified that Counsel misinformed him about the length
and nature of his sex-offender registration. Specifically,
Stubbs testified that Counsel described it as simply
reporting once per month and paying a fee, and that Counsel
did not inform Stubbs that he would have to register
throughout his life or mention the requirements to take
classes, to have a special license, to submit to lie-detector
testing, or to refrain from using the internet.
testified that he did not ask Counsel to seek a plea deal in
the sense of pleading guilty, but wanted "pre-trial
probation, " that is, "[t]o get out with bond with
restrictions or ankle monitor or something." Stubbs
testified that on the morning of his plea hearing, Counsel
presented Stubbs, for the first time, with the State's
plea offer of eight years' confinement or ten years'
probation, whereupon Counsel explained that this was the best
for which Stubbs could hope. Stubbs testified that at
Counsel's insistence, he then signed the trial
court's written admonitions without reading them, simply
initialing where Counsel indicated. Stubbs testified that
Counsel neither explained deferred ...