Christopher Jodale Coffman v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00248-CR
CHRISTOPHER JODALE APPELLANT
COFFMAN
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2013-0002M-CR
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OPINION
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Appellant Christopher Jodale Coffman appeals his conviction and
sentence for indecency with a child by sexual contact, arguing in a single issue
that trial counsel provided ineffective assistance by allowing him to plead true to
the allegations in the motion to adjudicate without first fully investigating and
retaining an expert to evaluate his mental abilities. Because the record is
inadequate to support the claim of ineffective assistance of counsel, we overrule
Appellant’s sole issue and affirm the trial court’s judgment.
Brief Facts
Appellant pled guilty to the charge of indecency with a child by sexual
contact in exchange for a recommendation of six years’ deferred adjudication.
Approximately one month later, the State filed a motion to adjudicate. The State
alleged that Appellant had violated his conditions of community supervision by
failing to report to his community supervision officer; failing to report any changes
to his employment, address, and telephone number five days before such
change; failing to register as a sex offender; contacting the complainant or her
guardian; and going in, on, or within 1000 feet of a playground. Appellant was
declared indigent, and counsel was appointed for him. As part of a plea bargain,
Appellant executed a “Motion to Adjudicate Memorandum,” confessing the
alleged violations and stating that he could not withdraw his pleas of true if the
trial court did not accept the plea bargain. The trial court accepted the
memorandum into evidence. The trial court then adjudicated Appellant’s guilt but
refused to follow the State’s punishment recommendation of five years’
confinement and refused to allow Appellant to withdraw his pleas of true. The
trial court next ordered a supplemental presentence investigation report (PSI)
and considered the earlier PSI.
The trial court ordered a mental and competency examination of Appellant
by Stacy Shipley, a psychologist. Shipley filed a report with the trial court
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regarding Appellant’s competence and understanding of the system. Shipley
specifically addressed Appellant’s understanding of the nature of some of his
conditions of community supervision, including the failure to register as a sex
offender, and the consequences for not complying with those conditions. Shipley
reported that Appellant was able to describe his conditions of community
supervision; knew that he was supposed to register as a sex offender, “go to
classes, not . . . be around kids[, and] do community service”[;] and knew that he
faced confinement for violating a condition. Shipley ultimately found Appellant
“[c]ompetent to [p]roceed.”
Appellant’s mother testified that she had adopted Appellant, that he had
been physically and sexually abused as a child, that his birth mother had used
drugs during her pregnancy, and that he had been classified by the Department
of Human Services as mentally retarded with the mental functioning of an eleven-
year-old.
Priscilla Kleinpeter, a psychologist who is also a licensed sexual offender
provider, also testified. Kleinpeter had one of the only contracts in the Texas
Panhandle to treat federally convicted sex offenders. She had one of seven
programs to treat civilly-committed sex offenders in her area and had contracts
with community supervision and parole departments to treat juvenile and adult
sex offenders. She performed a psychosexual assessment on Appellant. A
psychosexual assessment involves an intellectual assessment, personality
assessment, and risk assessment with recommendations. During her
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assessment, Kleinpeter learned that Appellant had been diagnosed with mild
mental retardation in elementary school and had been in special education
classes throughout his school years. She found that he had competed in the
Special Olympics and received disability benefits while in school. The results of
the intellectual assessment showed Appellant’s full scale IQ to be 66. This score
in turn demonstrated that he functioned below 99 percent of his peers.
Kleinpeter further testified that Appellant functioned at about the level of a ten-,
eleven-, or twelve-year-old.
Appellant’s personality evaluation was invalid because he was not able to
understand the questions due to his intellectual disability. The testing showed
that he was at low risk to reoffend. Kleinpeter also testified that Appellant was
not able to understand the terms of his community supervision. She testified that
she believed a therapeutic group home would be the best place for him.
Patrick Coyle, an employee of Hellen Farabee Centers, the local MHMR
facility, worked with mentally retarded individuals to provide them with services
they needed. He testified that Appellant could live in an intermediate care facility
(ICF), which is a group-home setting. The ICF was supervised, and the workers
there could help Appellant remember to report to his community supervision
officer and to register as a sex offender and could help keep him from going into
child safety zones. The ICF’s supervisors could also help him find a job.
Appellant’s trial counsel argued that Shipley’s opinions were consistent with
Kleinpeter’s and that the issue in the case was whether Appellant fully
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understood what was required of him under the terms and conditions of
community supervision. She urged the trial court to consider returning Appellant
to community supervision, ordering him to a group home, and ordering him to
attend the sex offender treatment that he needed. The trial judge explained that
he could not return Appellant to community supervision because he had already
adjudicated his guilt:
Since this is an indecency with a child case, I’m not sure I’m
authorized—the Court’s authorized to grant regular community
supervision.
So the Court has given significant time and thought to this
case, obviously, since we started this back on October 2013. The
Court’s going to assess punishment at ten years’ imprisonment in the
Institutional Division.
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. 1 An ineffective-assistance claim
must be “firmly founded in the record,” and “the record must affirmatively
demonstrate” the meritorious nature of the claim. 2 Direct appeal is usually an
inadequate vehicle for raising an ineffective-assistance-of-counsel claim because
1
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
2
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
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the record is generally undeveloped. 3 In evaluating the effectiveness of counsel
under the deficient-performance prong, we look to the totality of the
representation and the particular circumstances of each case. 4 The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. 5 Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. 6
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. 7 Trial counsel “should
ordinarily be afforded an opportunity to explain her actions before being
denounced as ineffective.” 8 If trial counsel is not given that opportunity, we
should not conclude that counsel’s performance was deficient unless the
3
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
Thompson, 9 S.W.3d at 813–14.
4
Thompson, 9 S.W.3d at 813.
5
See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415
S.W.3d at 307.
6
Nava, 415 S.W.3d at 307–08.
7
Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
8
Menefield, 363 S.W.3d at 593.
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challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” 9 As the Texas Court of Criminal Appeals has explained,
A claimant must generally prove deficiency using affirmative
evidence in the trial record sufficient to overcome the presumption
that the challenged action was sound trial strategy. However, when
no reasonable trial strategy could justify the trial counsel’s conduct,
counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel’s subjective reasons for acting
as he did. 10
The problem with the case now before this court is that Appellant was
already on deferred adjudication community supervision and had already entered
an unchallenged guilty plea controlling the disposition of the case. Professional
opinions of Appellant’s competence to understand the proceedings and the
requirements of community supervision conflicted. Based on the record before
us, we may speculate, but we cannot determine trial counsel’s strategy in
proceeding as she did. We note that a writ of habeas corpus will still lie to
challenge both the competence of Appellant to stand trial when he entered his
original guilty plea and when he entered his pleas of true to the motion to
9
Nava, 415 S.W.3d at 308.
10
Ex parte Bryant, 448 S.W.3d 29, 39–40 (Tex. Crim. App. 2014) (citations
and internal quotation marks omitted).
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adjudicate, 11 to challenge the effectiveness of counsel, 12 or to raise any other
issue more properly addressed by writ. 13
Conclusion
Based on the record before us, we are compelled to overrule Appellant’s
sole issue and to affirm the trial court’s judgment.
11
See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015), art. 42.07 (West
2006); Ex parte Yarborough, 607 S.W.2d 565, 566 (Tex. Crim. App. 1980)
(holding competency can be raised for the first time by post-trial writ of habeas
corpus), overruled on other grounds, Manning v. State, 730 S.W.2d 744 (Tex.
Crim. App. 1987); Henderson v. State, 132 S.W.3d 112, 115 (Tex. App.—Dallas
2004, no pet.) (same).
12
See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)
(“Claims of ineffective assistance of counsel are generally not successful on
direct appeal and are more appropriately urged in a hearing on an application for
a writ of habeas corpus.”); Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App.
2004) (providing that unlike other claims rejected on direct appeal, claims of
ineffective assistance of counsel rejected due to lack of adequate information
may be reconsidered on an application for a writ of habeas corpus).
13
See Ex parte Moss, 446 S.W.3d 786, 788 (Tex. Crim. App. 2014) (stating
that constitutional rights can be forfeited on habeas due to lack of action but lack
of jurisdiction cannot); Ex parte McCain, 67 S.W.3d 204, 207 (Tex. Crim. App.
2002) (footnote omitted) (stating that the Great Writ “is available only for relief
from jurisdictional defects and violations of constitutional and fundamental
rights”).
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/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
PUBLISH
DELIVERED: June 11, 2015
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