Cofer, Kelvin

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2013
• Docket: WR-79,032-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-79,032-01 EX PARTE KELVIN COFER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W09-00782-R IN THE 265TH DISTRICT COURT

FROM DALLAS COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated robbery and received deferred adjudication community supervision. His guilt was later adjudicated, and he was sentenced to fifteen years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Cofer v. State, No. 05-11-01007-CR (Tex. App. - Dallas, February 29, 2012)..

Applicant contends that his counsel at adjudication rendered ineffective assistance because counsel advised him to plead "true" to the allegations in the State's motion to proceed to adjudication, advised him that he would receive drug treatment in lieu of prison time if he did so, and failed to present evidence in mitigation of punishment.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order adjudication counsel to respond to Applicant's claims of ineffective assistance of counsel. Specifically, counsel shall state whether she promised Applicant that he would receive drug treatment if he pleaded "true" to the allegations in the motion to proceed to adjudication. Counsel shall also state whether she presented any evidence or argument in mitigation of punishment, and if so, what that evidence was. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's adjudication counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 27, 2013

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