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Stubbs v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 9, 2017


         On appeal from the 319th District Court of Nueces County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides.


          NELDA V. RODRIGUEZ Justice.

         Appellant 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.

         I. Background

         The 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.

         It is 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 me."

         On 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 attorney-
[STUBBS]: Yes, sir.
THE COURT: -regarding the charge pending against you in the indictment? Yes?
[STUBBS]: Yes, sir. At this point I just want my life back.

         In 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 offense.

         Eight 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.

         At the 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.[1] 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.

         On May 9, 2016, Stubbs filed a motion for new trial on the basis of ineffective assistance of counsel and the discovery of new evidence.

         A. Newly Discovered Evidence

         In his 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.

         The 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 case.

         The 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]."

         Stubbs argued that he was entitled to a new trial based on the three items of newly discovered evidence.

         B. Ineffective Assistance of Counsel

         The 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.

         1. Stubbs's Testimony

         Stubbs 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.

         Stubbs 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.

         More 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 Stubbs.[2]

         Stubbs 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.

         Stubbs 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 ...

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