Cody Lynn Rector v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 27, 2023
• Docket: 07-22-00063-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00063-CR

CODY LYNN RECTOR, APPELLANT

V.

THE STATE OF TEXAS

On Appeal from the 47th District Court Randall County, Texas, Trial Court No. 26518A, Honorable Dan L. Schaap, Presiding

February 27, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

This is a revocation of community supervision case. Pursuant to a plea agreement,

Appellant pleaded guilty to the offense of indecency with a child by contact, 1 and in

February 2017 was placed on seven years deferred adjudication community supervision

with conditions.

1 See TEX. PENAL CODE ANN. § 21.11(a)(1), (2), (d) (felony of second degree). A felony of the second degree is punishable by confinement for two to twenty years and fine not to exceed $10,000. See id. § 12.33. In December 2021, Appellant pleaded “true” to the allegation that he had violated

two conditions of community supervision; the trial court found he also violated two other

conditions. Thereafter, the trial court sentenced Appellant to twelve years of confinement

and a $2,500 fine. 2 On appeal, Appellant does not challenge the sufficiency of the

evidence that he violated four conditions of community supervision. Rather, via a single

issue, Appellant asserts he was denied effective assistance of counsel because his

counsel failed to present evidence of how serious he suffered from mental problems,

particularly with depression. We affirm.

Background

Because the sufficiency of the evidence supporting the trial court’s revocation of

community supervision is not in question, we offer a truncated discussion of the evidence.

Appellant agreed in February 2017 to comply with a number of conditions for deferred

adjudication community supervision for the guilty plea to the offense of indecency with a

child by sexual contact. 3 Shortly thereafter, Appellant struggled to comply with the

conditions of supervision. After admitting to his supervision officer that he had consumed

2The trial court did not rule on Appellant’s motion for new trial. Appellant’s motion simply stated that the “Defendant received ineffective assistance of counsel at the hearing on the State’s motion” to revoke/adjudicate without any factual explanation or affidavit attesting to the facts underlying the claim. No hearing was held. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (holding that trial court did not abuse its discretion in denying hearing on motion for new trial because defendant “failed to say why counsel’s investigation was deficient, or what further investigation would have revealed”). 3 This is a lesser-included offense to Appellant’s indicted offense of continuous sexual assault of a minor.

2 marijuana and alcohol and had contact with a minor (his son), the State in August 2017

moved to revoke Appellant’s community supervision. 4

Pursuant to another plea agreement, Appellant agreed to be placed in an

Intermediate Sanction Facility (ISF) and complete a cognitive intervention track designed

to treat Appellant for mental and/or emotional issues and substance abuse. In March

2018, Appellant completed the treatment program and was released from the ISF to

continue the term of his community supervision.

In October 2020, the State again moved to revoke Appellant’s community

supervision due to an alleged failure to report to the supervision officer during the two

preceding months. In March 2021, the trial court ordered a competency evaluation for

Appellant due to Appellant’s history of mental health issues. The competency evaluation

was performed by Dr. Gina Matteson, a board-certified psychiatrist. After reviewing the

history of Appellant’s criminal and legal problems, his past symptoms and diagnoses,

treatment history, and current evaluation based on his current symptoms/diagnosis, Dr.

Matteson concluded Appellant was able to assist in his defense and was competent to

stand trial. 5

4 The State’s motion also alleged that Appellant had failed to pay certain fees as conditions for his supervision.

5 The trial court placed Dr. Matteson’s report under seal. See, e.g., Bluntson v. State, No. AP-

77,067, 2021 Tex. App. LEXIS 349, at *8 n.7 (Tex. Crim. App. June 30, 2021). We note that during Appellant’s revocation/adjudication hearing, the trial court took judicial notice of the contents of the clerk’s record.

3 A year after initially filing its motion to revoke, in October 2021, the State filed its

Third Amended Motion to Proceed to Adjudication, alleging Appellant violated several

conditions of community supervision, including the following:

• Condition 1, wherein the Appellant agreed to commit no offense against the laws of Texas or any state or the United States (i.e., failure to register as a sex offender);

• Condition 5, wherein the Appellant agreed to report to the supervision officer and obey all rules and regulations of the Community Supervision and Corrections Department (i.e., failure to report from August 2020 through April 2021);

• Condition 6, wherein the Appellant agreed, among other things, to notify the supervision officer not less than 48 hours before any change in home or employment address; and

• Condition 46, wherein the Appellant agreed to attend and successfully complete sex offender treatment as recommended by the sex offender assessment.

During a hearing in December 2021, Appellant pleaded “true” to the State’s

allegations that he violated Conditions 5 and 46. The State proceeded to present

evidence to support its allegations that Appellant also violated Conditions 1 and 6. After

presentation of the evidence, the trial court found that Appellant had violated Conditions

1, 5, 6, and 46 of his terms of deferred adjudication community supervision. The trial

court revoked Appellant’s community supervision, found him guilty of the offense of

indecency with a child by sexual contact, and sentenced him to twelve years of

confinement and assessed a $2,500 fine.

Analysis

Evidence that a defendant violated a single term or condition of community

supervision is sufficient to support a trial court’s decision to revoke. Garcia v. State, 387

4 S.W.3d 20, 26 (Tex. Crim. App. 2012); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. [Panel Op.] 1980). Here, because Appellant entered a plea of “true” to two

allegations in the State’s motion, “the proceeding becomes a unitary proceeding to

determine the remaining issue of punishment.” Tapia v. State, 462 S.W.3d 29, 31 n.2

(Tex. Crim. App. 2015).

On appeal, Appellant complains he was denied effective assistance of counsel

because his trial counsel failed to present documentation from the Texas Panhandle

Center Behavioral and Developmental Health (TPC) that he alleges would “apprise the

court of the severity of Appellant’s depression, the diagnosis, prognosis, or any type of

treatment plan or type of medication” and show “how serious Appellant suffered from

mental problems, particularly depression.” According to Appellant, had these records

been presented as mitigation evidence, he would have received a more lenient sentence.

To prevail on a claim that his attorney was unconstitutionally deficient in

representing him, Appellant must show by a preponderance of the evidence both (1) that

counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith v. State, 286 S.W.3d

333, 340 (Tex. Crim. App. 2009). 6 The first Strickland prong requires a showing that

counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms. See Strickland, 466 U.S. at 687–88; Smith, 286 S.W.3d

at 340. When trial counsel is alleged to have failed to investigate facts of a defendant’s

case, the defendant must show what the investigation would have revealed that

6 Failure to make the requisite showing on either prong is fatal to the claim. Avila v. State, Nos. 07- 18-00143-CR, 07-18-00144-CR, 2019 Tex. App. LEXIS 6364, at *4 (Tex. App.—Amarillo July 14, 2019, no pet.) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).

5 reasonably could have changed the result in the case. Stokes v. State, 298 S.W.3d 428,

432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d

906, 912 (Tex. Crim. App. 2007)). We presume that counsel gave his client reasonable

professional assistance; our review of counsel’s representation is highly deferential. See

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). For an appellant to defeat the

presumption of reasonable professional assistance, an allegation of ineffectiveness “must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Id. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)

(ineffective assistance claims may not be built on retrospective speculation).

The second Strickland prong requires a showing of a reasonable probability that

but for counsel’s errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687, 694; Smith, 286 S.W.3d at 340. As in this case, when the

State alleges, and the trial court finds true, multiple violations of the defendant’s terms of

community supervision, the defendant must demonstrate that reasonable grounds exist

to overturn each of the findings of true that led to the revocation of community supervision.

See Smith, 286 S.W.3d at 342.

Appellant’s theory on appeal appears to stem from remarks the trial court made on

the record prior to sentencing, when the court addressed Appellant’s argument that his

failure to comply with the terms of community supervision were due to depression and

other mental health issues:

So while it is no doubt a difficult task – and I have no doubt that Mr. Rector was faced with a very difficult task given his circumstances. I am – it is not lost on me that the person he perpetrated has faced a very difficult task as well.

6 It is not an issue of retribution. It is an issue of responsibility. And counsel is aware that one thing that this Court has little patience for, and that is the failure to continue to work with probation officers to try to combat their difficulties and work through those difficulties and not bring them back to the Court. So things like failing to report for a substantial period of time, failing to successfully complete sex offender programs, there may be excuses for doing that, there may be a feeling of the helplessness that you’ve talked about, but you’re asking me to excuse those things and accept those excuses and give Mr. Rector a pass, and I don’t think I can do that. The question then becomes really in light of the fact that I do not intend to give him a pass on those, what do I do? The crimes that are committed are – they’re – they’re heinous. They affect somebody for a long, long time. That’s what I heard today, and that’s what I’ve heard, of course, in the past.

We disagree with Appellant’s claim that his attorney’s performance fell below an

objective standard of reasonableness. Notably, Appellant fails to show whether TPC’s

records actually contain favorable evidence that reasonably could have changed the

result in the case. See Stokes, 298 S.W.3d at 432; Cooks, 240 S.W.3d at 912. Evidence

of Appellant’s depression was front and center throughout the entire hearing, but

Appellant’s use (and purported reason for use) of TPC and related services was mixed.

As an example, Troy Timmons, the licensed professional counselor and sex

offender treatment provider, testified about Appellant’s “significant” depression, and noted

he observed an improvement in Appellant’s mood and energy levels when Appellant took

his medication and participated in TPC services. However, Appellant also continued to

attempt to minimize his committing the offense of indecency with a child by sexual contact.

Appellant eventually stopped attending sessions with Timmons. Appellant attributed this

lack of contact to spotty mobile phone reception, but Timmons expressed the concern

that Appellant was not taking the treatment seriously: “the difficulty I see is his amenability

7 to treatment.” Timmons also observed Appellant was “kind of in and out with compliance”

with taking his medication.

Jennifer Watson, the probation officer assigned to Appellant, testified that during

the course of her supervision, Appellant continued to minimize his criminal conduct:

saying “he didn’t do what the victim claimed he did . . . He basically takes no responsibility

for it.” Appellant did not meet with probation officers despite their remote availability

during the COVID-19 pandemic. 7 Appellant also ceased receiving services from TPC for

some time. 8 When a phone call was placed to TPC’s staff, Watson learned Appellant had

not been honest about what he was on community supervision for.

The appellate record does not contain TPC’s documents, and we do not speculate

about what they say. If Appellant intends to suggest that TPC’s records would show

Appellant was taking responsibility for his crime and seeking treatment to better himself,

we point out that other record evidence belies that position. If Appellant is suggesting

that TPC records would explain why Appellant failed to comply with the terms of

community service, we refer to the other evidence regarding Appellant’s refusal to accept

responsibility for his actions, for they offer an alternative explanation for why Appellant

dropped out. Without regard to what the records say, we hold that Appellant has failed

to show that further investigation by trial counsel would have revealed any additional

7 Appellant agreed with his counsel’s question that he did not meet with probation because he felt “like a hamster in a wheel.”

8 She also testified that Appellant dropped out of attending sex offender treatment sessions

because he complained he didn’t fit in with the other patients undergoing treatment. Appellant testified he quit because it was “kind of hard going into those classes and hearing different stories” that put mental pictures in his mind.

8 mitigation evidence. Under these circumstances, Appellant fails to satisfy Strickland’s

first prong.

Moreover, Appellant also fails under the second Strickland prong because there is

no record evidence establishing a reasonable probability that but for counsel’s failure to

seek and admit TPC’s records to show his level of depression, the result of the proceeding

would have been different. As indicated, no one doubted that Appellant suffered from

severe depression. Appellant’s mental health issues were already before the court due

to a competency evaluation that contained a history of his past symptoms and diagnoses.

When his counsel presented argument at closing, he asked that when “you compound

the mental issues Cody suffers from” along with other factors, the trial court should grant

“mercy” and allow Appellant to remain on community supervision.

Appellant overlooks the fact that he had previously violated the terms of community

supervision, and that then, the trial court, in a show of mercy, decided against revocation

in favor of treatment in ISF. There is no indication that further investigation by trial counsel

into TPC’s records would reveal anything other than additional, cumulative mitigating

evidence already presented to the court. Tuft v. State, 940 S.W.2d 114, 121 (Tex. App.—

Tyler 1996, pet. ref’d) (counsel is not ineffective for failing to present evidence that is

merely cumulative of other evidence presented at trial). Appellant failed to establish there

was a reasonable probability that the result of the proceeding would have been different

if TPC’s records had been introduced.

Viewing the evidence in a light most favorable to the trial court’s ruling, we find that

Appellant has not shown either deficient performance by trial counsel or there is a

9 reasonable probability that such investigation or mitigating evidence would have

produced a different result. As such, Appellant has failed to meet his burden under both

prongs of Strickland. Appellant’s issue is overruled.

Conclusion

The trial court’s judgment is affirmed.

Lawrence M. Doss Justice

Do not publish.