                         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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