Opinion
NO. WR-84,238-01
12-14-2016
EX PARTE SARINA SANCHEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013-CR-11692-W1 IN THE 226TH DISTRICT COURT BEXAR COUNTY ALCALA, J., filed a concurring opinion.
CONCURRING OPINION
I join this Court's majority order that remands the habeas application filed by Sarina Sanchez, applicant, to the habeas court for additional findings of fact. I write separately to more fully explain my rationale for joining this Court's order.
In the instant proceedings, applicant challenges the voluntariness of her guilty plea to the offense of intoxication manslaughter. The record shows that applicant entered into a plea agreement, in which she agreed to plead guilty to the offense in exchange for a sentence of fifteen years' confinement with an affirmative deadly-weapon finding. Although the habeas record does not contain a transcription of the proceeding at which applicant pleaded guilty, the habeas record does contain the written admonitions, waivers, and other documents that were signed by applicant and filed at the time of her plea. Under the terms of the plea agreement, applicant acknowledged that she fully understood the plea agreement and that she "was not threatened, coerced, or placed in fear by any person to induce" her to enter her plea. Applicant did not appeal her conviction.
Applicant subsequently filed the instant application for a post-conviction writ of habeas corpus in which she contends, among other things, that her plea was rendered involuntary as a result of misconduct by her trial counsel. The habeas court held an evidentiary hearing at which it considered evidence through live testimony and affidavits. Applicant and two of her friends, Alfred Kunz and Robert Negley, testified at the hearing, and that evidence is detailed below. Trial counsel did not testify, but he provided an affidavit in response to applicant's allegations. In his affidavit, counsel denied that any promises were made to applicant, and he suggested that he secured the best plea bargain possible for applicant and that she did not desire a trial in this case.
At the writ hearing, applicant testified in accordance with the pleadings in her application about three particular actions by trial counsel that were the basis for her claim of ineffectiveness. First, applicant testified that trial counsel told her and her friends that he had a close personal relationship with the judge, which suggested to applicant that if she did not submit to counsel's sexual requests, he would use his personal relationship with the judge to ensure that she was punished more harshly for her offense. Second, applicant testified that trial counsel led her to believe that, if she hired or consulted another attorney about her case, he would act in a manner that was adverse to her interests. Third, she testified that trial counsel pressured her to plead guilty and led her to believe that, due to his personal relationship with the trial judge, her plea agreement for fifteen years in prison would be reduced by the judge at the time of sentencing, despite the terms stated in the written plea-bargain agreement. The testimony of Kunz and Negley was consistent with applicant's assertions.
In pertinent part, the record shows the following testimony by applicant: Q: Okay. And what did you think was going to happen as far - if you did not cooperate with him? A: I mean, I was scared of him. I thought if I didn't do what he wanted me to do being that he told me that the judge was his children's godfather, I thought he would get me a worse deal. . . . . Q: Okay. And so how many times did this occur? A: A few times. Q: Did you consider part of your representation that you had to submit to these advances? A: Yes, I thought I had to. . . . . Q: Okay. Now, while you were out on bond did you have to come to court and - several court appearances? A: Yes. Q: And during any of those court appearances did you and [trial counsel] go into [judge's] jury room? A: Yes, we did. Q: And was it to look at a video or review evidence or for what purpose? A: No, he had me go in the back in the jury room and we had sex. And then like afterwards we washed up in the bathroom in the jury room behind the chambers of the 399th. Q: Okay. Now, did you think that you had to do that or did you do it voluntarily? A: No, I thought I had to do it. . . . . Q: The time of the court appearance where he took you into the jury room and you had sex with him, did you feel free on that occasion to say no, I don't want to do this? A: No, I did not. Q: Did you think he was going to get your bond revoked or say something to the judge, what was your fear? A: I was scared that he was going to get my bond revoked. I was scared that he was going to tell the judge something that was going to get me a worse sentence. Because he always told me that he would get me a good deal at the end and that I always had to keep my attorney happy. And I was scared that if I didn't do it he was not going to comply with the promises that he promised me.
The record shows the following testimony by applicant: Q: Now, in this whole relationship, the attorney-client relationship, did he allow you to contact other attorneys or to get second opinions about your case? A: No, he did not. Q: And did he have the - the power to revoke your bond or to drop your bond if you didn't cooperate? A: I believe so. . . . . Q: Okay. Did you ever talk to another lawyer while this case was pending? A: I tried to hire [lawyer], but I - we were so scared of him I thought if I hired [lawyer] that he would - he would screw me - he would screw me in the end. Q: He who? A: [Trial counsel]
In pertinent part, the record shows the following testimony by applicant: Q: Okay. Now at the time of your plea were you instructed to enter a plea of guilty? A: Yes. Q: And did you understand that you were - you had signed a plea agreement for 15 years in the Texas Department of Corrections? A: I was told - I mean, I didn't understand, I was scared. Q: Did you - did you know that 15 years was what you signed for? A: Yes, at the time. Q: Did you know - did you know - did you believe that you were going to receive the 15 years though? A: No. Q: And why did you believe that you would not receive 15 years? A: Because he told me - he told me that he would get me a fair deal because him and the judge - [trial counsel] and [judge] were very good friends due to the relationship they had with their kids. . . . . Q: Okay. And so you are asking the Court - the Court of Criminal Appeals to set aside your conviction so you can have a trial? A: Yes, I am. Q: And do you feel that in that trial that you would be able to speak to the family, to the jury and express your remorse? A: Yes, I will.
With respect to the three particular contentions asserted by applicant, the habeas court made numerous findings of fact that, at first blush, appeared to me to have largely accepted applicant's testimony as true. Upon my initial review of the habeas court's findings of fact, it appeared to me that the habeas court was definitive in finding applicant's evidence credible as to her assertions of misconduct by counsel, but, on further reflection, it appears that reasonable minds may disagree as to whether the habeas-court judge was merely reciting the evidence in the record or whether he was rather affirmatively stating that he believed this evidence to be credible. I, therefore, agree with this Court's assessment that it is necessary to remand this case for clarity as to the habeas judge's assessment about the credibility of the evidence.
First, I note that the habeas court's findings could be reasonably interpreted as indicating the court's belief that counsel led applicant to believe that she had to perform sexual acts with him as part of his representation, which she appears to have performed without her consent on multiple occasions. The habeas court's findings also suggest that it may have found that applicant believed that, if she did not comply with counsel's sexual demands, counsel would use his personal relationship with the trial judge either to have the judge revoke her bond or to provide the judge with negative information about her for the purpose of increasing her punishment for the offense. Second, the habeas court's fact findings appear to note that applicant wanted to hire another attorney but that trial counsel would not permit her to hire or consult other attorneys, and that she did not hire another attorney due to her fear of retribution by trial counsel. Third, the habeas court made fact findings that could be interpreted as observing that applicant's counsel did not communicate with her about the facts or evidence in the case. In particular, with respect to the plea proceedings, the habeas court's findings might indicate that, after applicant was arrested due to the revocation of her bond and while she was held in jail pending trial, trial counsel did not communicate with her. The court appears to have found that, at the time of her plea, counsel had not discussed with her whether there was a possibility of a probated sentence, and he instructed her to enter a plea of guilty under the terms of the plea agreement that provided for a fifteen-year sentence. The habeas court appears to have further determined in its fact findings that applicant did not understand the contents of the documents that she signed due to her counsel's failure to explain them to her, and that, even though she agreed to the term of fifteen years' in prison, she did not believe that she would actually be sentenced to that amount of time. The court also may have found that, due to trial counsel's claimed personal relationship with the judge, applicant believed that the judge would actually sentence her to a lower term of years than what was shown on the plea-bargain agreement.
The habeas court's finding of fact stated: • "8(h). While Applicant was out on bond she met with trial counsel at his office. At the office trial counsel would have Applicant perform sexual acts with him. Trial counsel told Applicant that she had to 'keep [her] attorney happy.'" • "8(i). These encounters at trial counsel's office occurred a few times. Applicant was led to believe that she had to submit to these advances as part of her representation."
The habeas court's findings of fact stated, "8(l). During a court appearance Applicant and trial counsel went into the jury room of the 399th District Court to have sexual relations. This was not voluntary; applicant believed that she had to do it. Applicant believed if she did not comply that trial counsel was going to get Applicant's bond revoked, or tell the judge something that was going to get Applicant a worse sentence."
The habeas court's findings of fact stated: • "8(m). Trial counsel did not allow Applicant to contact other attorneys or to get second opinions about Applicant's case." • "8(n). Applicant told a family friend, Mr. Robert Negley, that she wanted another lawyer but Applicant was afraid to hire another due to actions that trial counsel might take against her." • "8(o). In June 2014 trial counsel called Mr. Negley and told him that if he ever came to court on Applicant's scheduled court hearings again that Mr. Negley would regret it."
The habeas court's finding of fact states, "8(j). Applicant was never told any facts from the case, never shown any evidence, and never shown the toxicology report. Trial counsel also failed to keep Applicant and her family informed about the case."
The habeas court's findings of fact state: • "8(p). Applicant was arrested on revocation of bond, and trial counsel did not get Applicant out of jail after that point. Applicant had no further communication with trial counsel until the time of the plea." • "8(q). Trial counsel did not discuss any request for probation with Applicant." • "8(s). Applicant was not made aware of the contents of the documents that she was stipulating to in the plea agreement, and was unsure whether a police report was attached to those documents."
The habeas court's finding of fact states, "8(r). Applicant was instructed by trial counsel to enter a plea of guilty. Applicant signed an agreement for fifteen years in the Texas Department of Corrections, but she did not believe she was going to receive the full sentence as trial counsel had told her that trial counsel and the judge were very good friends."
Although the fact findings may appear to have largely adopted applicant's assertions about her attorney's misconduct, the habeas court recommended that habeas relief be denied. The habeas court's view appears to have been that, regardless of the sexual misconduct and other events transpiring between counsel and applicant, counsel had secured the best plea bargain possible for applicant under the circumstances of her cases. With respect to this matter, I note that the habeas court may have found credible counsel's assertion that applicant had requested that he simply "do [his] best" in representing her. Also, the habeas court may have found that applicant understood that she was pleading guilty to fifteen years in prison, which was the least amount of prison time that counsel could negotiate with the State, and that she had desired to avoid a trial. It also appears that the habeas court disregarded the sexual assault of applicant by counsel on the basis that it was immaterial to her decision to plead guilty. The habeas court explained that "the allegations of sexual assault, fraud, official oppression, or any of the numerous other ethical breaches applicant claims in trial counsel's representation of applicant . . . have no legal bearing on her conviction."
The habeas court's findings of fact stated, "7(e). After an Affirmative Finding of a Deadly Weapon was filed by the District Attorney's Office it was discussed that in no way probation was to be an option. Applicant agreed and understood and only would say 'just do your best.'"
The habeas court's findings of fact stated, "7(f). The amount pled to was understood by Applicant and Affiant to be the least amount of prison time negotiated with the District Attorney's Office. Applicant further agreed and was adamant that this case not go to trial."
This statement by the habeas court, though listed as finding of fact number 9, is, in actuality, a conclusion of law, and thus, may be treated by this Court as a conclusion of law. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008); see also State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016) (noting that regardless of how a trial court labels its findings of fact and conclusions of law, an appellate court must examine the substance of the findings and conclusions and treat them by their substance rather than their label). --------
Given that I am uncertain whether applicant's testimony elicited during the writ hearing was found to be credible by the habeas court, it is necessary to remand this case to the habeas court for further findings of fact and conclusions of law. In determining whether applicant has established that she is entitled to habeas relief, this Court is the ultimate fact finder. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). We defer to the habeas court's findings of fact that are supported by the record. Id. However, we may exercise our authority to make contrary or alternative findings and conclusions if we determine that the habeas court's findings and conclusions are not supported by the record. Id. With respect to pure legal conclusions and legal conclusions based on mixed questions of law and fact that do not turn on a credibility determination by the habeas court, we review such conclusions of law de novo. See Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014). With respect to mixed questions of law and fact that do turn on an evaluation of credibility and demeanor, we generally defer to such conclusions by the habeas court, unless we determine that the underlying factual findings are not supported by the record. Id.
I observe that many of the habeas court's purported factual findings would appear to support a conclusion that counsel performed deficiently. These findings include that
• applicant believed that she had to perform sexual acts with counsel as part of his representation,It appears to me that, if the habeas judge's factual findings are based on his having found applicant's evidence credible rather than merely constituting a recitation of the evidence introduced at the hearing, then these findings support the conclusion that counsel was deficient in his representation of applicant. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (noting that a reviewing court must look to the totality of the representation in evaluating ineffective-assistance claims). For instance, if the habeas court found the evidence credible that applicant was led by her attorney to believe that, due to counsel having told applicant that he had a personal relationship with the trial judge, the prison term that was described in the plea-bargain agreement would be reduced to a lower number of years by the judge, then it appears to me that applicant's plea was likely involuntary on that basis. Similarly, if the habeas judge found the evidence credible that counsel manipulated applicant into submitting to his will under an implied threat to adversely impact her interests if she refused any of his demands, then it appears to me that applicant's plea was likely involuntary on that basis.
• applicant performed sexual acts on counsel due to his insinuation that, if she refused to comply, then he would act in a manner that was adverse to her interests by providing the judge with information for the purpose of increasing her punishment for the offense,
• applicant did not hire or consult with another attorney due to her perception that trial counsel forbade it,
• counsel did not discuss the facts or evidence of her case with her,
• counsel did not communicate with her until the time of her plea,
• applicant did not understand the contents of the plea documents that she signed due to her counsel's failure to explain them to her, and
• applicant believed that, due to counsel's representations about his personal relationship with the judge, she would be sentenced to a lesser amount of time than what was shown on the plea papers.
Further, some of the habeas court's fact findings may appear to support the determination that counsel's deficient performance prejudiced applicant. In particular, the habeas court may have found credible the evidence that
• applicant was manipulated to believe that she could not consult with other counsel or hire other counsel to represent her,If the habeas judge believed that applicant was pressured into her plea of guilty by counsel who led her to believe that she would be sentenced to a prison term of less than fifteen years despite what was written on the plea papers, then I would likely conclude that her plea was involuntary on that basis.
• counsel did not discuss the facts or evidence of her charge, keep her informed about the case, or explain the details and contents of her plea bargain, and,
• based on counsel's pressure to accept the plea bargain, applicant pleaded guilty believing that she would be sentenced to less than fifteen years even though the plea papers showed that she had agreed to fifteen years.
I recognize that there is a lack of clarity in the habeas judge's findings in that the habeas court made two fact findings, numbers 7(e) and 7(f), that may suggest that applicant was not prejudiced by counsel's performance. Those two fact findings appear to observe that applicant understood that fifteen years in prison was the least amount of time that her attorney could negotiate in a plea bargain with the State, that she understood that she could not get probation in her case because of the deadly-weapon finding, and that she "agreed and was adamant that this case not go to trial." Depending on whether the habeas judge was merely describing the evidence that was introduced at the hearing, as compared to his assessment about the credibility of the evidence, these findings may be inconsistent with the habeas court's other fact findings that applicant desired to obtain legal representation by another attorney and that she was coerced and threatened by counsel to submit to his sexual advances and to plead guilty to the offense. Due to the lack of clarity in the habeas court's findings with respect to the parts of the record that it found credible and not credible, I cannot ascertain the habeas court's rationale for attempting to separate the sexual assaults of applicant by trial counsel from the voluntariness of her plea that would appear to have been premised on similar pressure by counsel to submit to his demand that she plead guilty to the offense.
Ordinarily, this Court defers to the habeas court's factual findings on the credibility of the evidence. For this reason, I agree with the Court's decision to remand this case to the habeas court for it to more clearly express which evidence it found to be credible in this case. With these comments, I join this Court's majority order remanding this case to the habeas court. Filed: December 14, 2016 Do Not Publish