Sabins v. State

Robert Lee Sabins, Appellant v. The State of Texas, Appellee

NO. 03-18-00732-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 25, 2020

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. CR2016-851, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Robert Lee Sabins was indicted for multiple child sexual abuse offenses—five counts of sexual assault of a child, see Tex. Penal Code § 22.011(a)(2), and one count of indecency with a child by sexual contact, see id. § 21.11(a)(1)—for engaging in sexual activities with his cousin's fifteen-year-old daughter, K.H. In an open plea to the court, appellant pled guilty to all six counts. The trial court found appellant guilty and, after hearing punishment evidence, sentenced appellant to confinement in the Texas Department of Criminal Justice for twenty years for each of the sexual assaults and ten years for the indecency with a child, see id. §§ 12.33, 21.11(d), 22.011(f), and ordered some of the sentences to be served consecutively, see id. § 3.03(b)(2)(A). On appeal, appellant argues that the trial court erred in "not allowing" his oral motion for new counsel and complains that his trial counsel rendered ineffective assistance. We affirm the trial court's judgments of conviction.

BACKGROUND

Appellant was indicted in November of 2016. He received appointed counsel the following month pursuant to the county's "client choice program," which allows an indigent defendant to select an attorney from a list of approved attorneys by listing, in order of preference, the names of three attorneys. The attorney appointed to represent appellant was the attorney that appellant listed as his first choice.¹

The case proceeded to trial. On the day of jury selection, after the venire panel had been qualified, appointed counsel informed the trial court that appellant was being uncooperative, stating that appellant would "have to be dragged out" of the holding cell because "[h]e doesn't want to come out." Appellant was brought before the court. The judge explained to appellant that the case was set for jury trial. He admonished appellant about appropriate courtroom behavior, advised him about the consequences of inappropriate behavior, and encouraged him to cooperate with his attorneys. The judge expressed his opinion that, because of the prior "eight jury [trial] settings" in this case, appellant's appointed attorneys—chosen by appellant—were "ready to go to trial." The judge also explained that, based on his prior experience with these attorneys in his courtroom, he knew that they were qualified to represent appellant.

The judge then informed appellant:

So what I'm going to do is I'm going to send you back and I'm going to send your attorneys back and I want you to talk to them about two or three things. Number one is I understand there's a plea offer including just open with no deferred adjudication and going in front of me.

If you want a jury trial, then you need to decide whether you want the jury to determine punishment or whether you want me to determine punishment.[²] You need to decide whether you're going to sign an application for probation.

If you don't sign that, you don't get — you don't even — nobody considers it. The jury doesn't consider it and I don't consider it. You need to sign that. And you need to assist them in whatever way you can so they can prepare for the case.

Do you understand me?

Appellant said that he understood.

He then sought permission to address the court. The judge reminded appellant that he had a Fifth Amendment right to remain silent but granted him permission to speak. Appellant complained that he had "been in jail for a long time," had not "been to this courthouse in over a year," and had not "been in this courtroom . . . to speak [his] opinion or state [his] case." He said that he had repeatedly asked his counsel to remove himself from his case and had "even wrote [sic] the district clerk up here to help [him] with this."³ He told the court that he had not seen any discovery and was "kind of walking blind."

The trial judge commented on appellant's prior refusal to cooperate with his attorneys: "My understanding is they've tried to talk to you four times in the last week or so and you've chosen not to talk to them so that's on you." Appellant responded, complaining that

they just keep repeating the same things they said a year ago and that's not — that's not — I'm asking for them to be proactive, to make the contacts I asked them to make, to do the things that I asked them to do and to keep me informed and communicate and that is not happening, Your Honor.

He also described an incident when counsel visited him in jail that "did not make [him] feel very comfortable as him representing me" and expressed that he did "not feel comfortable with this situation."

The trial judge indicated that he understood appellant's complaints but explained that "it's too late for that" and that the case was "going to trial." He informed appellant that the court would give his attorneys "as long as they need" to confer with appellant "to go over whatever [they] need to go over." He then directed appellant's counsel to "go talk to [appellant] and get ready for trial." After giving that directive, the court recessed the proceeding.

When the proceeding resumed, appellant was out of the courtroom, but one of his attorneys was present. The court asked if the parties were ready for voir dire. Appellant's counsel informed the court that his partner was still conferring with appellant and that "[i]t sounds like he may accept an offer of an open plea." The judge explained that if appellant accepted "the offer of an open plea," he planned to proceed that day, rather than resetting the case for a later punishment hearing. A discussion regarding scheduling of witnesses then ensued off the record. The court then brought in the venire panel, with the jurors seated in order, to allow the parties to assess whether they wanted a jury shuffle. After that, the court excused the venire panel for lunch and recessed the proceeding.

The judge advised the parties when to return following the lunch break, and, at that point, appellant's appointed counsel, who had been conferring with appellant outside the courtroom, advised the court and the State that appellant "wants to plead guilty and go to [the court] for punishment . . . and plead open." The court recessed the proceeding to allow appellant to complete the plea paperwork.

When the proceeding resumed for the plea, the trial court reviewed the completed plea paperwork with appellant, beginning with the trial court's certification of appellant's right to appeal. The judge informed appellant that he was marking the option on the certification form that indicated, "This is a plea bargain case, but the trial court has given permission to appeal. The defendant has the right to appeal punishment only."⁴ He confirmed with appellant that he knew that the document represented to the court that he understood that he "will not have the right to appeal the guilt/innocence in [his] case, but if anything goes awry in the punishment phase [he was] reserving the right to appeal that."

The court then reviewed a document entitled Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial Confession and Plea Bargain Agreement with appellant. In that document, appellant judicially confessed to the charged crimes and waived various rights, including his right to appeal. In reviewing the document with appellant, the trial court explained appellant's constitutional rights to him:

THE COURT: And you understand that you have a constitutional right to a trial by jury?

[APPELLANT]: Yes, sir, I do.

THE COURT: As a matter of fact, we've got a panel coming in at 12:30 ready to go. And you understand that?

[APPELLANT]: Correct.

THE COURT: And you understand that you have a constitutional right to confront the witnesses against you?

[APPELLANT]: Yes, sir.

THE COURT: Are you willing to waive both of those constitutional rights for the purpose of entering into this —

[APPELLANT]: I am —

THE COURT: — negotiated plea agreement?

[APPELLANT]: I am, Your Honor.

After appellant affirmed his waivers, the judge remarked, "The plea agreement will speak for itself, but it is an open plea with no agreed recommendation; no deferred adjudication; and you are not probation eligible from the Court." In reviewing the punishment range with appellant, the court verified with counsel that the sentences were "stackable" and, after a brief explanation, confirmed with appellant that he understood that the punishment range was "as short as two years and as long as 120 years."

The following exchange then occurred with appellant:

THE COURT: Do you know I'm not obligated to follow this agreement?

[APPELLANT]: I agree. Yes, sir, I do.

THE COURT: If I do follow this agreement, do you understand you will have waived any and all rights to appeal regarding the guilt/innocence of this phase —

[APPELLANT]: Yes, sir.

THE COURT: — or of the trial?

[APPELLANT]: Yes, sir.

Next, the court questioned appointed counsel about appellant's competency and confirmed that appellant "clearly underst[ood] how this open plea work[ed]" and that appellant was advised about the possibility of consecutive sentences. The court then accepted appellant's plea:

THE COURT: Then, [appellant], based upon this negotiated plea agreement, how do you plead as to Counts I, II, III, IV, V and VI in Cause No. 16-851?

[APPELLANT]: Guilty, Your Honor.

THE COURT: Are you pleading guilty because you are guilty and for no other reason?

[APPELLANT]: To an extent, yes, sir, I am.

THE COURT: Do you have any problem with "to an extent"?

[PROSECUTOR]: Judge, I think it needs to be clear on the record.

THE COURT: Are you pleading guilty to Counts I through VI because you are guilty and for no other reason?

[APPELLANT]: Yes, sir.

The State offered exhibits in support of the guilty plea—which included a sealed exhibit containing the...