PD-1333-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/19/2015 4:48:23 PM
Accepted 10/19/2015 5:02:37 PM
ABEL ACOSTA
CAUSE NO. PD-1333-15
NO. PD-1333-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
THE STATE OF TEXAS,
PETITIONER
VS.
ESAW LAMPKIN,
RESPONDENT
Petition in Cause No. 42.897-B
124th Judicial District Court of
From the 124th
Gregg County, Texas and
The Court of Appeals for the
Sixth District of Texas, Cause No. 06-14-00024-CR
PETITION FOR DISCRETIONARY REVIEW
L. Charles van Cleef
State Bar No. 00786305
P.O. Box 2432
Longview, Texas 75606-2432
ORAL ARGUMENT 903-248-8244 Telephone
REQUESTED 903-248-8249 Facsimile
charles@vancleef.pro
charlesAvancleef.pro
COUNSEL FOR PETITIONER
October 19, 2015
I. IDENTITY OF JUDGES, PARTIES AND COUNSEL
Hon. Alfonso Charles, Trial Court Judge
124th Judicial District Court in and for Gregg County, Texas
124th
Chief Justice Josh R. Morriss, III, Justice Bailey C. Moseley, and Justice Ralph K.
Burgess, Appellate Panel, Sixth Court of Appeals, Texarkana, Texas
Esaw Lampkin, Respondent
Texas Department of Criminal Justice
Brandon T. Winn, Trial Counsel for Appellant
Texas Bar #24070866, 411 West Tyler St., Gilmer, TX 75644
Hough-Lewis (“Lew”)
("Lew") Dunn, Appellate Counsel for Respondent
Texas Bar #06244600, 201 E. Methvin, Suite 102, PO Box 2226, Longview, TX
75606
Christopher A. Parker, Trial Counsel for Petitioner
Texas Bar #24046585
Stacey L. Brownlee, Trial Counsel for Petitioner
Texas Bar #09250375
V. Christopher Botto, Trial Counsel for Petitioner
Texas Bar #24064926
Gregg County District Attorney’s
Attorney's Office, 101 E. Methvin, Suite 333, Longview,
TX 75601
L. Charles van Cleef, Appellate Counsel for Petitioner
Texas Bar #00786305, PO Box 2432, Longview, TX 75606-2432
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II. TABLE OF CONTENTS
I. IDENTITY OF JUDGES, PARTIES AND COUNSEL ................................-- 2 -
II. TABLE OF CONTENTS ...............................................................................-- 3 -
III. TABLE OF AUTHORITIES..........................................................................-
AUTHORITIES -4-
IV. STATEMENT REGARDING ORAL ARGUMENT ....................................-- 5 -
V. STATEMENT OF THE CASE ......................................................................-- 5 -
VI. STATEMENT OF PROCEDURAL HISTORY ............................................-- 6 -
VII.GROUNDS FOR REVIEW ...........................................................................-- 6 -
VIII. ARGUMENT
VIII. ARGUMENT ...........................................................................................-- 7 -
A. New Rules for Deficient Performance? ...................................................-- 7 -
1) The Undiscovered Evidence
1) Evidence.....................................................................-- 8 -
2) Error to Weigh the Negative Impact of Evidence? ..................................-- 9 -
3) The New Rule.........................................................................................-
Rule - 10 -
4) Burden on the Wrong Party—A Silent Record Benefits the Party with the
Burden?.........................................................................................................-- 11 -
Burden?
B. Trial Court’s Findings and Conclusions Ignored...................................-
Court's Findings Ignored - 13 -
CONCLUSION.............................................................................................-- 14 -
IX. CONCLUSION
PRAYER FOR
X. PRAYER FOR RELIEF
RELIEF ...............................................................................-- 16 -
XI. CERTIFICATE OF SERVICE.....................................................................-
SERVICE - 17 -
XII.CERTIFICATE OF COMPLIANCE ...........................................................-- 18 -
XIII. APPENDIX
XIII. APPENDIX ............................................................................................-- 19 -
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III. TABLE
TABLEOF
OFAUTHORITIES
AUTHORITIES
Cases
- 11 -
Bone v. State, 77 S.W.3d 828 (Tex.Crim.App.2002).........................................-
(Tex.Crim.App.2002)
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App.2005) .............................-- 11 -
Menefield v. State, 363 S.W.3d 591 (Tex.Crim.App.2012)....................
(Tex.Crim.App.2012) - 11 -, - 12 -
Milburn v. State, 15 S.W.3d 267 (Tex.App.—Houston
(Tex.App.—Houston [14th
[14th Dist.]
Dist.] 2000,
2000, pet.
pet. ref'd)
refd)
.........................................................................................................................-- 13 -
(2009) - 13 -
Porter v. McCollum, 558 U.S. 30 (2009)............................................................-
Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005), pet.
- 13 -
dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007)......-
2007)
Washington, 466
Strickland v. Washington, 466 U.S.
U.S. 668 (1984).......................... - 11 -, - 12 -, - 13 -
668 (1984)
Wiggins v. Smith, 539 U.S. 510 (2003).....................................................
(2003) - 9 -, - 13 -
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TO THE HONORABLE JUSTICES OF SAID COURT:
Comes
Comes now STATE OF TEXAS,
now the STATE TEXAS, Petitioner
Petitioner herein,
herein, and
and files this, its
files this,
Petition
Petition for Discretionary
Discretionary Review. In support
Review. In support thereof,
thereof, Petitioner
Petitioner shows the Court
the following:
IV. STATEMENT REGARDING ORAL ARGUMENT
the event
In the event this
this petition
petition isisgranted,
granted,Petitioner
Petitioner requests
requests oral
oral argument.
argument.
Argument would
Argument would assist
assist the Court because
the Court because resolution
resolution of ground for review
of the ground review
depends upon
depends upon a detailed
detailed exploration
exploration of
of the
the facts
facts of
of this
this case
case and
and the law used by
Appeals in
the Court of Appeals in its
its decision.
decision. Further,
Further, oral
oral argument
argument would
would provide
provide this
Court with an opportunity to question the parties regarding their positions.
V. STATEMENT OF THE CASE
The respondent was charged with driving while intoxicated, a third or more
offense,
offense, enhanced
enhanced by
by two
two prior felonies. CR
prior felonies. CR 5 (Indictment).
(Indictment). A found the
A jury found
respondent guilty and, at the conclusion of the punishment phase, the jury assessed
a sentence of 99 years. See CR 85-86 (Judgment).
(Judgment). The
The Court
Court held
held a hearing
hearing on a
motion for
motion for new
new trial,
trial, but
butdenied
deniedrelief.
relief.CR
CR448-449.
448-449.Respondent
Respondent appealed,
appealed,
presenting 14
presenting 14 issues.
issues. On August 11, 2015, the Sixth Court of Appeals
On August Appeals issued an
Opinion
Opinion denying
denying all of the
all but one of the issues.
issues. Appendix
Appendix (Opinion).
(Opinion). The
The respondent
respondent
filed
filed a motion
motion for rehearing,
rehearing, which
which the
the Court
Court denied. The Court
denied. The Court of
of Appeals
Appeals
remanded and
remanded and ordered
ordered resentencing
resentencingbased
basedon
on aa single
single point
point of
of ineffective
ineffective
assistance of counsel.
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VI. STATEMENT OF PROCEDURAL HISTORY
On August 11,
On August 11, 2015,
2015, the
the Sixth
Sixth Court
Court of
of Appeals
Appeals issued
issued its
its published
published
Opinion
Opinion and
and Judgment
Judgment affirming
affirming the
the trial
trial court
court in all but
but one
one respect.
respect. Appendix.
Appendix.
The respondent filed a motion for rehearing on August 21, 2015. That motion was
overruled on August 25, 2015.
VII. GROUNDS FOR REVIEW
Petitioner
Petitioner respectfully
respectfully contends
contends that
that the
the Sixth
Sixth Court
Court of
of Appeals
Appeals erred
erred in its
resolution of the appeal in the following respects and, in its published decision, has
created
created new rules for
new rules for the
the evaluation
evaluation of
of habeas
habeas corpus
corpus claims
claims of
of ineffective
ineffective
assistance of
assistance counsel that
of counsel that conflict
conflict with
with established
established legal
legal principles
principles and the
and the
decisions of this Court:
1. The Court of Appeals
1. Appeals applied
applied the reverse
reverse of
of the
the well-settled
well-settled Strickland
Strickland
burdens of production
burdens production and
and proof
proof applicable
applicable in habeas
habeas corpus
corpus claims,
claims,
expressly basing
basing its decision on the absence of evidence that an attorney
investigation—evidence which the claimant,
performed specified acts of investigation—evidence
not the
not the State,
State, must
mustpresent—then
present—then expressly
expressly refused
refused to weigh
weigh
undiscovered evidence in determining whether prejudice occurred.
2. Further, the Court of Appeals failed to use the correct standard of review
(abuse of
(abuse discretion) in
of discretion) evaluating the
in evaluating trial court's
the trial court’s findings
findings and
and
conclusions from
from a hearing
hearing on the respondent’s
respondent's motion for new trial and,
fact, expressly
in fact, expressly gave
gave no
no credence
credence whatsoever
whatsoever to
to the trial judge's
the trial judge’s
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findings and conclusions concerning the claim of ineffective assistance of
counsel.
VIII. ARGUMENT
VIII. ARGUMENT
Appeals enunciated
The Court of Appeals enunciated new standards for analysis
analysis of ineffective
ineffective
assistance of counsel claims regarding the discovery and presentation of mitigating
evidence
evidence that reaching consequences
that have far reaching consequences for both
both prosecutors
prosecutors and defense
defense
attorneys. Specifically,
attorneys. Specifically, the
the Court
Court of Appeals
Appeals relied on the absence of evidence of
counsel’s actions rather
counsel's actions rather than requiring the proponent to present such evidence, did
not weigh
not weigh the
the aggravating
aggravating nature
nature of
ofundiscovered
undiscovered mitigating
mitigating evidence
evidence in
in
determining prejudice,
determining prejudice, and
and disregarded
disregarded the
the trial
trial court’s findings and
court's findings and conclusions
conclusions
on these very issues.
A.NEW
A. NEWRULES
RULESFOR DEFICIENT PERFORMANCE?
FORDEFICIENT PERFORMANCE?
One of the points raised in the respondent's
respondent’s motion for new trial was that
counsel was ineffective
trial counsel ineffective for failing to request
request aa competency
competency evaluation
evaluation and
hearing due
hearing to alleged
due to alleged concerns
concerns about
about the
the respondent's
respondent’s mental
mental stability
stability and
and
competence. Both the trial court and Court of Appeals determined that trial counsel
was not ineffective
was ineffective in this regard.
in this regard. This
Thisargument
argument blossomed
blossomed into
into aa further
further
argument that
argument that trial counsel failed
trial counsel failed to present
present what
what the Court
Court of
of Appeals
Appeals labeled
labeled
“mitigating evidence”
"mitigating evidence"inin the
the form mental health
form of mental health and
and other
other records
records from
from
Respondent’s
Respondent's prior incarceration(s), regardless
regardless of
of trial
trial competency.
competency. In essence, the
Court of Appeals concluded
concluded that if there was any
any concern
concern over
over competency
competency then,
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even if it is
is resolved
resolved and
and the
the case
case continues,
continues, trial
trial counsel
counsel must seek out
out possible
possible
evidence
evidence of
of odd behavior or
odd behavior diagnosis to
or diagnosis to use mitigation and,
use in mitigation and, further,
further, that
that it
makes no matter whether
makes whether that evidence is a two-edged
that evidence two-edged sword
sword if, in fact,
fact, counsel
counsel
failed to discover it.
1) THE
1) THEUNDISCOVERED
UNDISCOVERED EVIDENCE
EVIDENCE
During the hearing on the motion for new trial, trial counsel was examined
regarding several
regarding several factors,
factors, some
some of which are discussed
discussed below, for determining
determining a
defendant’s competency.
defendant's competency.At
At that
that time, respondent had
time, the respondent new counsel
had new counsel who
who
obtained
obtained the respondent’s prison
the respondent's prison records
records and
and questioned
questioned numerous
numerous witnesses,
witnesses,
including several
including several attorneys;
attorneys; he
he also presented
presented an affidavit of the respondent.
respondent. The
prison records
prison records constitute
constitute the “undiscovered mitigating
the "undiscovered mitigating evidence”
evidence" at
at issue
issue in the
relevant portion of the Opinion.
The prison
The prison records
records indicated
indicatedthe
the respondent
respondenthad
hadaa low IQ, had
low IQ, had been
been
evaluated
evaluated for mental health services
services and seen a psychiatrist,
psychiatrist, and contained
contained other,
related observations
related observations over
over aa several
several year
year period
period ending
ending in 2010. See Appendix at
“Appendix” (Court’s
"Appendix" (Court's Summary
Summary of Records). The
of Records). The records
records also
also indicated
indicated
malingering, faking
malingering, faking aa disability,
disability, and
and noncompliance.
noncompliance.See
SeeAppendix
Appendixatat69. Trial
69. Trial
counsel did not obtain or use these records for purposes of trial, and did not know
or have reason to know of their existence.
-8-
2) ERRORTO
2) ERROR WEIGHTHE
TOWEIGH NEGATIVE IMPACT
THENEGATIVE IMPACT OF EVIDENCE?
EVIDENCE?
The trial court determined that trial counsel was not ineffective because the
records, even
records, even if trial counsel
if trial counsel had them, could
had them, could not
not only
only be
be argued
argued to
to provide
provide
sympathy for
sympathy for the respondent but
the respondent but could
could also
also show
show that
that he
he was aa malcontent
malcontent or
malingerer. The
malingerer. Appeals disregarded these findings and conclusions
The Court of Appeals conclusions on
the basis that since trial counsel did not obtain the records, he could not have made
strategic decision
a strategic decision not to present
present them.
them. Appendix
Appendix at 70.
70. Having
Having observed
observed that
Wiggins v. Smith, 539 U.S. 510 (2003) required weighing the negative impact
Wiggins impact of
mitigation evidence (as the trial court did) and not to presume prejudice, the Court
of Appeals,
Appeals, it seems,
seems, presumed
presumed prejudice.
prejudice. Appendix
Appendix atat 70-71.
70-71. Relying
Relying on
on a
mélange of cases, the Court of Appeals
Appeals concluded that weighing the positive and
negative impact
negative impact of
of the undiscovered evidence
the undiscovered evidenceisis error.
error. Appendix
Appendixatat69-70.
69-70. The
Court Appeals stated
Court of Appeals stated "we
“we find
find that
thatabsent
absentcounsel's
counsel’sunprofessional
unprofessional error,
error,
Lampkin’s mental health records would have been available for the jury to review,
Lampkin's mental
and these
and these records
records could
could have
have shed
shed aa different
different light
light on
on Lampkin's
Lampkin’s prior
prior
convictions.”
convictions." Appendix
Appendix at
at 70.
70. Then,
Then, without
without reference
reference to
to the
the trial
trial court’s
court's findings
regarding the potential negative
regarding negative impact
impact of the records, concluded
concluded in the very next
sentence of
sentence the Opinion,
of the Opinion, "beyond
“beyond speculation
speculation or conjecture
conjecture that aa reasonable
reasonable
probability exists
probability exists that
that Lampkin’s sentence would
Lampkin's sentence would have
have been
been less severe had the
less severe
-9-
mitigating evidence
mitigating evidencebeen
beenpresented
presentedand
andthat
that the
the trial court erred
trial court erred in
in finding
finding
otherwise.”
otherwise." Appendix at 70-71.
3) THE
3) THENEW
NEW RULE
RULE
The Court
The Court of
of Appeals'
Appeals’ decision
decision establishes
establishes a new
new and
and conflicting
conflicting rule
rule
regarding the
regarding evaluation of
the evaluation ineffective assistance
of ineffective assistance of
of counsel
counsel claims
claims to the effect
effect
that when
that when an attorney
attorney fails
fails to
to obtain
obtain such
such evidence,
evidence, weighing
weighing the evidence
evidence is
essentially
essentially unimportant
unimportantifif any
any element
element of
of the evidence might
the evidence might have
have been
been used in
mitigation; if true, this case should be cited as an exception
exception to
to the
the Supreme
Supreme Court’s
Court's
decision in
decision Wiggins and
in Wiggins and leaves
leaves prosecutors,
prosecutors, defense
defense attorneys,
attorneys, and
and judges
judges
wondering what
wondering what has happened
happened to the Strickland
Strickland prejudice
prejudice prong.
prong. The
The new
new rule is
that undiscovered evidence which tends to be both aggravating and mitigating need
only be analyzed for potential mitigating
mitigating value,
value, and not in its
its totality—which,
totality—which, it
bears repeating,
bears repeating, isis what
what the
the trial
trial court
court did. This is
did. This is in
in contravention
contravention to the
the legal
legal
standard which
standard which requires,
requires, in this context,
in this context, that the
the Court
Court of
of Appeals
Appeals determine
determine
whether there is "a
“a reasonable
reasonable probability that the result of the
the proceeding
proceeding would
have been different.”
different." See Strickland, 466 U.S. at 687-88.
-10-
- 10 -
BURDEN ON
4) BURDEN ON THE WRONG PARTY—A
THE WRONG PARTY—A SILENT
SILENT RECORD
RECORD
BENEFITS THE P
BENEFITS PARTY THE B
ARTY WITH THE URDEN?
BURDEN?
In evaluating trial counsel’s
counsel's alleged ineffectiveness in failing to discover and
present mitigating
present mitigating evidence
evidenceof
of mental
mental health
health history,
history, the Court of
the Court of Appeals
Appeals
concluded that “there
"there is no evidence that counsel performed any investigation into
Lampkin’s
Lampkin's mental
mental health
healthhistory.”
history."Appendix
Appendixatat52. The Court
52. The Court of
of Appeals
Appeals
observed
observed that
that there
there is no evidence
evidence that: (1) trial
trial counsel
counsel hired an investigator
investigator or
attempted to speak to any of Lampkin's
Lampkin’s other
other relatives;
relatives; (2) trial counsel attempted
respondent’s wife
to speak with the respondent's wife or
or other
other relatives;
relatives; or (3) trial
trial counsel
counsel inquired
of jail personnel whether the respondent
respondent was
was receiving
receiving or
or had any type of mental
health services in the
the past.
past. Appendix at 52.
Yet, under
Yet, under Strickland
Strickland v. Washington,
Washington, 466 668, 687-88
466 U.S. 668, 687-88 (1984),
(1984), the
the defendant;
burden is on the defendant; the correct question should have been whether there
was evidence that counsel did not do those things.
Claims
Claims of ineffectiveness must
of ineffectiveness must be
be firmly
firmly founded
founded in
in the record, and
the record, and the
record must affirmatively demonstrate their merit. Menefield v. State, 363 S.W.3d
591, 592 (Tex.Crim.App.2012);
591, 592 (Tex.Crim.App.2012); Goodspeed
Goodspeedv.v.State,
State, 187 S.W.3d 390,
187 S.W.3d 390, 392
392
(Tex.Crim.App.2005). A
(Tex.Crim.App.2005). criminal defendant
A criminal defendanthas
has the
the burden
burden of showing by
of showing by a
preponderance of
preponderance of the evidence that his attorney
attorney failed
failed to
to provide
provide constitutionally
constitutionally
adequate representation. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002).
Limitations of the record often render a direct appeal inadequate to raise a claim of
-11-
- 11 -
ineffective assistance
ineffective assistanceofof counsel.
counsel. See
See Goodspeed,
Goodspeed,187
187 S.W.3d
S.W.3d at 392. "An
at 392. “An
ineffective-assistance claim
ineffective-assistance claimmust
must be
be firmly
firmly founded
founded in
in the
the record
record and the record
affirmatively demonstrate
must affirmatively demonstrate the
the meritorious
meritorious nature
nature of the claim."
claim.” Menefield,
Menefield,
363 S.W.3d at 592.
Here, the Court of Appeals has posed several question that are not answered
the record,
by the record, to
to wit,
wit, whether
whether trial
trial counsel
counsel hired
hired an
an investigator,
investigator, attempted
attempted to
respondent’s relatives, wife, or jailers in order to discover
speak to the respondent's discover facts that
would have led counsel to request the respondent’s
respondent's TDCJ records. Appendix at 52-
53.11 These instances of "lack
53. “lack of evidence"
evidence” are the
the factors
factors that expressly caused the
Court of Appeals to conclude that trial counsel failed to investigate
investigate for mitigating
evidence. Yet, as
evidence. Yet, as noted
noted above,
above, there
there was
was aa hearing
hearing on
on Respondent's
Respondent’s motion
motion for
new trial
new trial and
and trial
trial counsel,
counsel, among
among several
several other
other witnesses,
witnesses, was
was questioned.
questioned.
Respondent did not ask these questions, nor did Respondent present any relatives,
Respondent’s
Respondent's wife,
wife, or
or any
any jailer. Respondent, not
jailer. Respondent, not Petitioner,
Petitioner, has the burden
burden in
these matters.
these matters. In
Inanalyzing
analyzing Respondent's
Respondent’s claims
claims in manner, the
in this manner, Court of
the Court
Appeals shifted
shifted the entire burden set forth in Strickland
Strickland v. Washington,
Washington, 466 U.S.
668, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) and its progeny.
Further, in
Further, regard to prejudice,
in regard prejudice, the Court
Court of
of Appeals
Appeals first
first observed
observed that
that
prejudice is not presumed
prejudice presumed when counsel fails to investigate
investigate and present
present available
available
mitigating evidence,
mitigating evidence, Appendix
Appendix at then considered
at 62, then considered several
several factors
factors concerning
concerning
1i
This lack of evidence morphed into a conclusion that
that trial
trial counsel
counsel did
did not,
not, in
in fact,
fact, contact
contact Respondent’s
Respondent's wife or
hire an investigator in the following page of discussion, Appendix at 53.
-12-
- 12 -
the existence of prejudice where counsel failed to investigate or present mitigating
evidence, citing Milburn v. State, 15 S.W.3d 267 (Tex.App.—Houston [14th Dist.]
2000, pet. ref'd), Wiggins v.
refd), Wiggins v. Smith,
Smith, 539
539 U.S.
U.S. 510, 537 (2003), Porter v. McCollum,
558 U.S. 30, 42 (2009) (per curiam), Shanklin
Shanklin v. State, 190 S.W.3d 154, 165-66
App.—Houston [1st
(Tex. App.—Houston 2005), pet. dism'd,
[1st Dist.] 2005), dism'd, improvidently
improvidently granted,
granted, 211
S.W.3d
S.W.3d 315 (Tex. Crim. App. 2007). However, the Court of Appeals ignored the
fact that, as itit previously
previously observed in the Opinion,
Opinion, trial counsel
counsel intended
intended for the
respondent’s testimony
respondent's testimony to be mitigating. Respondent's
Respondent’s testimony, arguably, did not
intended to be mitigating
go well, but it was intended mitigating as demonstrated in a letter from trial
counsel to Respondent. Appendix at 67-68.
Thus, the
Thus, the Court
Court of
of Appeals
Appeals propounded
propounded a new rule that undiscovered
new rule undiscovered
evidence which tends to be both aggravating and mitigating need only be analyzed
for potential mitigating
mitigating value,
value, and not in its totality—which, it bears repeating, is
what the
what trial court
the trial court did.
did. This
Thisisisinincontravention
contravention to
to the
thelegal
legalstandard
standard which
which
requires, in this context, that the Court of Appeals
requires, Appeals determine
determine whether
whether there
there is "a
“a
reasonable probability that the result of the proceeding would have been different.”
different."
See Strickland, 466 U.S. at 687-88.
B. TRIAL
B. TRIALCOURT'S
COURT’SFINDINGS
FINDINGSAND CONCLUSIONS IGNORED
ANDCONCLUSIONS IGNORED
the Court
In the Court of
of Appeals'
Appeals’ analysis,
analysis, discussed
discussed directly
directly above,
above, the Court of
the Court
Appeals gave absolutely no deference
deference to the trial court’s findings and conclusions,
court's findings
- 13 -
despite the fact that these very arguments
despite arguments were
were presented
presented to
to the
the trial
trial court
court at the
hearing on the respondent’s motion for new trial. The trial court concluded:
respondent's motion
As to not asking for these records. Even if he had had these records, while it
could
have helped
be argued they may have helped and
and provided
provided sympathy
sympathy for Mr. Lampkin,
Lampkin,
looking
at the back of some of these records also shows -- it could be easily argued,
requests and complaints that Mr. Lampkin had while in prison,
with all the requests
that he was
a malcontent or malingerer or other things that could actually have hurt Mr.
Lampkin, had he gone -- had these records been introduced in front of a jury.
Appendix atat 69.
Appendix There isisno
69. There nomention
mention or
oranalysis
analysis of
of the
the abuse
abuse of
ofdiscretion
discretion
standard in this portion of the appellate
standard appellate Opinion;
Opinion; the Court of Appeals
Appeals held that
“the potential
"the potential harm analysis
analysis under
under these circumstances
circumstances would
would not
not amount
amount to
to a
deferral to the considered
deferral considered strategic
strategic decisions
decisionsof
of counsel.” The Court
counsel." The Court ignored
ignored the
trial court's
trial court’s findings
findings regarding
regarding aggravating
aggravating evidence
evidence and application of
and application the
of the
Strickland
Strickland standard,
standard, as
as well
well as
as the trial court's
court’s conclusion
conclusion that counsel
counsel was not
ineffective.
IX. CONCLUSION
IX. CONCLUSION
The Court
The Court of Appeals'
Appeals’ holding
holding presents
presents a new
new rule;
rule; reasonable
reasonable and short
short
extrapolation
extrapolationofof that
that rule
rule is that when
is that when counsel
counsel fails
fails to
to discover
discover and
and present
present
evidence that may have any hint of mitigation—regardless of whether the evidence
aggravating—counsel is per se ineffective.
would also be aggravating—counsel ineffective. The
The undersigned
undersigned finds
no authority for this new rule, and none is expressly cited by the Court of Appeals.
-14-
- 14 -
Without a requirement
requirement to show
show harm
harm in a totality of evidence, it is not possible to
reconcile the Court of Appeals’
Appeals' analysis with Strickland and its progeny.
Further, the Court of Appeals shifted the burden of production
Further, production to the State
insofar as
insofar Court of
as the Court of Appeals
Appeals expressly
expressly considered
considered aa lack
lack of evidence
evidence in the
record that defense counsel
record counsel took certain steps—rather
steps—rather than
than noting
noting a defendant's
defendant’s
burden to produce
burden produce evidence
evidence that
that defense
defense counsel
counsel did not take
did not take those
those steps—to
steps—to
support a conclusion
support conclusion of
of ineffective
ineffective assistance
assistanceof
of counsel. A silent
counsel. A silent record,
record, here,
here,
benefitted the party with
with the
the burden
burden of
of production
production and
and proof.
proof. Put simply, a lack of
evidence does not equate to “evidence”
"evidence" for the party with the burden of production.
Finally, the
Finally, Court of Appeals
the Court Appeals should have given correct
correct deference
deference to the
findings, and the conclusion, of the trial court.
-15-
- 15 -
X. PRAYER FOR RELIEF
of the
In light of the foregoing,
foregoing, Petitioner
Petitioner respectfully
respectfully requests
requests that
that the
the Court
Court of
Criminal Appeals grant discretionary review and direct the parties to prepare briefs
so the matters summarized herein may be fully considered by the Court.
Respectfully submitted,
/s/ L. Charles van Cleef
______________________________
L. Charles van Cleef
State Bar No. 00786305
P.O. Box 2432
Longview, Texas 75606-2432
(903) 248-8244 Telephone
(903) 248-8249 Facsimile
COUNSEL FOR PETITIONER
-16-
- 16 -
XI. CERTIFICATE
M. CERTIFICATEOF
OFSERVICE
SERVICE
the foregoing
I hereby certify that a true and correct copy of the foregoing instrument has
TEX.
been forwarded by email/e-filing to all represented parties in accordance with TEx.
APP. P.
R. APP. P. 9.5(b)(1)
9.5(b)(1) to:
Hough-Lewis “Lew”
"Lew" Dunn
Attorney at Law
201 E. Methvin, Suite 102
P.O. Box 2226
Longview, TX 75606
dunn@texramp.net
Office of the State Prosecuting Attorney of Texas
P.O. Box 13046
Austin, TX 78711-3046
information@spa.texas.gov
and by Fax: 512-463-5724
on this Thursday, October 15, 2015.
/s/ L. Charles van Cleef
______________________________
L. Charles van Cleef
-17-
- 17 -
CERTIFICATEOF
XII. CERTIFICATE OFCOMPLIANCE
COMPLIANCE
accordance with
In accordance with TEX.
TEX. R. APP.
APP. P.
P. 9..4(i)(3),
9..4(i)(3), II hereby
hereby certify
certify that
that the
the
foregoing
foregoing Petition
Petition for Discretionary
Discretionary Review
Review was prepared using Microsoft Word
using 14 point type, and that is contains 2,149 words, excluding portions exempted
by TEX.
by TEX. R. APP.
APP. P.
P. 9.4(i)(1).
9.4(i)(1).
/s/ L. Charles van Cleef
______________________________
L. Charles van Cleef
October 15, 2015
-18-
- 18 -
XIII. APPENDIX
XIII. APPENDIX
Esaw Lampkin v. State of Texas, No. 06-14-00024-CR,
--- S.W.3d ----, 2015 WL 4735664
(Tex.App.—Texarkana, 2015)
-19-
- 19 -
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00024-CR
ESAW LAMPIC1N, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 42,897-B
Before Morriss, C.J., Moseley and Burgess, B.
Opinion by Justice Burgess
OPINION
I. Introduction
While driving a stolen truck in Gregg County, Texas, Esaw Lampkin caught the attention
of a police officer when he backed up on a highway off-ramp, sped through an intersection, and
failed to yield to oncoming traffic. During the lawful traffic stop that followed, Lampkin admitted
that he had been drinking alcohol. A Gregg County district judge executed a warrant authorizing
a blood draw against Lampkin's will. After a jury heard that Lampkin's blood alcohol
concentration (BAC) was .111 grams per deciliter, they convicted him of driving while intoxicated
(DWI), third or more. Because the jury also found that Lampkin was previously convicted of two
prior felony offenses as alleged in the enhancement paragraphs and heard evidence that he had a
substantial criminal history that included eight prior felony convictions, they assessed an enhanced
sentence of ninety-nine years' imprisonment.
On appeal, Lampkin argues that the evidence is legally insufficient to support the jury's
finding of guilt and that the trial court erred (1) in failing to exclude evidence of his BAC, (2) in
failing to suppress evidence obtained in violation of Miranda v. Arizona,1 (3) in failing to include
a jury instruction on the statutory exclusionary rule embodied in Article 38.23 of the Texas Code
of Criminal Procedure, (4) in allowing extraneous-offense evidence, and (5) in overruling his
motion for a new trial based on various complaints that his counsel rendered ineffective assistance.
Additionally, Lampkin raises new grounds on appeal of alleged ineffective assistance of trial
counsel.
'See Miranda v. Arizona, 384 U.S. 436 (1966).
2
We find that the evidence is sufficient to support the jury's verdict of guilt and that no error
or alleged ineffectiveness of counsel impacted the guilt/innocence portion of Lampkin's trial.
However, we also find that the trial court erred in failing to grant Lampkin a new trial on
punishment due to trial counsel's ineffective assistance in failing to investigate and present
mitigating evidence. Accordingly, we reverse the trial court's judgment and remand the matter to
the trial court for a new trial on punishment only.
II. Lampkin's General Points of Error
A. The Evidence Was Legally Sufficient to Support the Jury's Verdict of Guilt
1. Evidence of Lampkin's Intoxication
Joe Cassin, a deputy with the Gregg County Sheriff's Office, testified that at 10:27 p.m.,
he saw Lampkin "backing up towards the interstate on the actual exit ramp itself" According to
Cassin, Lampkin then accelerated through an intersection and failed to yield to oncoming traffic.
After witnessing these traffic violations, Cassin initiated a traffic stop and made contact with
Lampkin, who could not produce a driver's license.2
Cassin testified that he immediately noticed that the truck's cabin smelled of alcohol and
that Lampkin had slurred speech and bloodshot eyes. While being recorded (both audio and video)
by the dashboard camera (dash cam) in Cassin's patrol car, Lampkin informed Cassin that he had
consumed one beer. After hearing this admission, Cassin asked Lampkin to step outside of the
vehicle and discovered that the smell of alcohol was emanating from Lampkin's person, not the
2The record establishes that the truck Lampkin was driving had been stolen and that Lampkin had already been placed
under arrest for the stolen truck before the DWI investigation began. Yet, prior to Lampkin's trial, the State agreed
not to mention that the truck was stolen.
3
vehicle. Cassin's testimony and the recording of the arrest demonstrated that Lampkin was
unsteady on his feet and that his speech was slurred.
Cassin called Bobby Dean, a trooper with the Texas Department of Public Safety (TDPS),
to assist in a DWI investigation. Cassin testified, "I advised [Lampkin] of his rights, asked him if
he understood his rights, and he shook his head up and down in the affirmative and said yes." The
recording of the arrest confirms that Cassin read Lampkin the Miranda warnings in Dean's
presence before Dean's interrogation.
At trial, Dean testified that Lampkin had red, glassy eyes and that his breath smelled of
alcohol. Over an objection, Dean testified that Lampkin initially admitted to drinking one sixteen-
ounce beer, but that "he changed his answer from one to three 16-ounce beers." According to
Dean, Lampkin exhibited four out of six cues during the Horizontal-Gaze Nystagmus Test (HGN
Test). Dean testified, "I asked [Lampkin] to describe how he felt on a scale of 0 to 10, if 0 was
completely sober and 10 is the most intoxicated he had ever heard of anybody being, and he told
me he was a 5." A second recording, taken from the dash cam in Dean's patrol car, corroborated
Dean's testimony and memorialized Lampkin's agreement with Dean that he might be intoxicated.
After this admission, Dean placed Lampkin in his patrol car. The dash cam footage from
inside the patrol car included close-up footage of Lampkin's face as he delivered a lengthy rant
raising several complaints about Dean's methods of interrogation. As a result, the jury was able
4
to see Lampkin's face clearly and hear his slurred speech. While being recorded, Lampkin
threatened to file a formal complaint against Dean for racial profiling.'
After Lampkin refused to voluntarily submit to a blood test, Dean transported him to Good
Shepherd Medical Center and obtained a warrant for a nurse to draw his blood. Karen Ream, a
TDPS forensic scientist, testified that Lampkin's BAC was .111 approximately two hours and
nineteen minutes after the traffic stop.
Based on this evidence, the jury rendered a guilty verdict. Lampkin contends that the jury's
verdict is not supported by sufficient evidence.
2. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the jury's verdict to determine whether any rational jury could have found the essential elements
of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863
(Tex. App.—Texarkana 2010, pet. ref d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence
presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency
under the direction of the Brooks opinion, while giving deference to the responsibility of the jury
"to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
3We only mention this fact because it is the basis of one of Lampkin's points of error alleging ineffective assistance
of counsel.
5
from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was tried." Id.
Under a hypothetically correct jury charge, Lampkin committed the offense of DWI, third or more,
if (1) he (2) operated (3) a motor vehicle (4) in a public place (5) while intoxicated and (6) had
previously been convicted two times of any other DWI offense.4 See TEX. PENAL CODE ANN.
§§ 49.04(a), 49.09(b)(2) (West Supp. 2014).
Lampkin challenges only the intoxication element. Under Section 49.01(2) of the Texas
Penal Code, a person is intoxicated if he does not have "the normal use of mental or physical
faculties by reason of the introduction of alcohol . . . , or ha[s] an alcohol concentration of 0.08 or
more." TEX. PENAL CODE ANN. § 49.01(2) (West 2011). The trial court submitted both definitions
of intoxication to the jury.
3. Analysis
Pointing to evidence of his low IQ, which was not before the jury at trial, Lampkin argues
that Dean and Cassin tricked him into admitting that he was intoxicated and that he had ingested
4Lampkin entered pleas of "true" to the two prior DWI convictions after he discussed the matter with his attorney and
heard the trial court's admonishments as to the effect of such pleas.
6
three beers. Even putting Lampkin's admissions aside, legally sufficient evidence established
Lampkin's intoxication. Cassin stopped Lampkin after witnessing Lampkin commit a number of
unusual moving traffic violations in rapid succession. Dean and Cassin testified that Lampkin
smelled of alcohol and had red, glassy, bloodshot eyes. Although Lampkin's mental health records
indicate that his typical speech patterns are normal, the evidence at trial established that Lampkin's
speech was slurred at the time of his arrest. Lampkin exhibited four out of six cues during the
HGN Test, his BAC was .111 two hours and nineteen minutes after his arrest, Lampkin admitted
he had consumed more than one sixteen-ounce beer before driving, and he rated himself a five out
of ten on a hypothetical intoxication scale where zero was not intoxicated and ten was the highest
level of intoxication possible. Dean and Cassin both told the jury that their independent
conclusions that Lampkin was intoxicated were based on their training and experience as police
officers and on the facts and circumstances with which they were confronted. The jury was able
to reach their own conclusions by observing Lampkin's behavior and slurred speech through the
two dash cam recordings of the stop and subsequent interaction.
We fmd that legally sufficient evidence supports the jury's guilty verdict. Accordingly,
we overrule Lampkin's first point of error.
B. The Trial Court Did Not Abuse its Discretion in Admitting Lampkin's BAC
Lampkin argues on appeal that the trial court erred in admitting evidence concerning his
BAC in the absence of retrograde extrapolation evidence. We disagree.
7
1. Standard of Review
"We review a trial court's ruling under the Rules of Evidence for an abuse of discretion."
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). "We consider the ruling in light of
what was before the trial court at the time the ruling was made and uphold the trial court's judgment
if it lies within the zone of reasonable disagreement." Id. "If the trial judge was correct under any
theory of law applicable to the case, we will uphold the judge's decision." Bowley v. State, 310
S.W.3d 431, 434 (Tex. Crim. App. 2010).
2. Analysis
In support of his argument to the trial court that his BAC was irrelevant absent evidence of
retrograde extrapolation, Lampkin relied on Mata v. State, 46 S.W.3d 902, 910 (Tex. Crim. App.
2001), arguing that this case stands "for the proposition that evidence like this is not probative
once a blood draw exceeds two hours without having an extrapolation expert." Lampkin's reading
of this and similar cases is simply incorrect.
In Mata, the Texas Court of Criminal Appeals specifically stated that it was not addressing
the issue of "whether test results showing a defendant's BAC at some time after the alleged offense
[are] admissible at trial in the absence of retrograde extrapolation." Mata, 46 S.W.3d at 910.
Instead, the sole issue addressed in Mata was whether an expert witness "reliably applied the
science of retrograde extrapolation" in Mata's trial. Similarly, both Burns and Bagheri, cases
referenced in Lampkin's appellate brief, merely held that the retrograde extrapolation evidence
offered at trial in those specific cases was unreliable. Bagheri v. State, 119 S.W.3d 755, 756-57
8
(Tex. Crim. App. 2003); Burns v. State, 298 S.W.3d 697, 702 (Tex. App.—San Antonio 2009, pet.
ref d).
None of the cases cited by Lampkin stand for the proposition that the admissibility of BAC
evidence is dependent upon the inclusion or exclusion of retrograde extrapolation evidence, even
if the defendant's blood is drawn two or more hours after the arrest. See Bagheri, 119 S.W.3d at
760-61. Rather, Texas courts have specifically held that retrograde extrapolation is not required
to establish the admissibility of BAC evidence. Kirsch v. State, 306 S.W.3d 738, 743-47 (Tex.
Crim. App. 2010); Stewart v. State, 129 S.W.3d 93, 96-97 (Tex. Crim. App. 2004) (en banc); see
Phillips v. Tex. Dep't of Pub. Safety, 362 S.W.3d 252, 257 (Tex. App.—Beaumont 2012, no pet.)
(citing Mireles v. Tex. Dep't Pub. Safety, 9 S.W.3d 128, 132 (Tex. 1999) (per curiam)); Garcia v.
State, 112 S.W.3d 839, 849-50 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Here, Lampkin's BAC was probative of the issue of whether he was intoxicated at the time
of the alleged offense. See Garcia, 112 S.W.3d at 850; Stewart, 129 S.W.3d at 96. Lampkin's
argument that the blood test was taken over two hours after the arrest is an argument as to the
weight of the evidence, not its admissibility. Garcia, 112 S.W.3d at 851 (finding no error in trial
court's decision to admit BAC evidence derived from blood drawn two hours after offense in
absence of retrograde extrapolation evidence). Because the Texas Court of Criminal Appeals has
held that the admissibility of BAC evidence is not dependent on the inclusion or exclusion of
retrograde extrapolation evidence, we conclude that the trial court did not abuse its discretion in
overruling Lampkin's objection. Accordingly, we overrule Lampkin's second point of error.
9
C. The Trial Court Properly Denied Lampkin's Motion to Suppress his
Statements to Trooper Dean
Lampkin sought to suppress evidence of the oral statements and admissions he made to
Dean during the DWI investigation. Lampkin contends that he did not waive his Miranda rights
and that his statements to Dean were involuntary. Thus, he argues, the trial court's decision not to
to suppress his custodial statements constituted an abuse of discretion.
1. Standard of Review
The trial court is the 'sole and exclusive trier of fact and judge of the credibility' and
weight of the evidence presented at a hearing on a motion to suppress, particularly where the
motion is based on the voluntariness of a confession. Delao v. State, 235 S.W.3d 235, 238 (Tex.
Crim. App. 2007) (quoting Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996)); Romero
v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Bizzarri v. State, 492 S.W.2d 944, 946
(Tex. Crim. App. 1973). "The determination of whether a statement is voluntary is a mixed
question of law and fact, i.e., an application of law to a fact question." Herring v. State, 359
S.W.3d 275, 282 (Tex. App.—Texarkana 2012), aff'd, 395 S.W.3d 161 (Tex. Crim. App. 2013)
(citing TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005); Garcia v. State, 15 S.W.3d 533,
535 (Tex. Crim. App. 2000)).
In reviewing the trial court's decision on a motion to suppress evidence, we "[give] almost
total deference to a trial court's determination" if the mixed question relies on the credibility of a
witness, but apply "a de novo standard . . . [for] mixed questions that do not depend on credibility
determinations." Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011); Herrera v.
State, 241 S.W.3d 520, 526-27 (Tex. Crim. App. 2007). A trial court's decision on this matter
10
will only be overturned on appeal where a flagrant abuse of discretion is shown. Delao, 235
S.W.3d at 238; Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim.
App. 1995).
2. Admissibility of Custodial Interrogations
As the Supreme Court of the United States articulated in Miranda, "Prior to any
questioning, the person must be warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of an
attorney." Miranda, 384 U.S. at 444; see Coffey v. State, 435 S.W.3d 834, 841 (Tex. App.—
Texarkana 2014, pet. red). "'Under both the Federal constitutional standard and the Texas
Confession Statute, evidence obtained as a result of a custodial interrogation is inadmissible unless
the State proves the officer gave proper warnings and shows an affirmative waiver of rights by the
accused.' Coffey, 435 S.W.3d at 841 (quoting Hutchison v. State, 424 S.W.3d 164, 175 (Tex.
App.—Texarkana 2014, no pet.) (footnotes omitted)); see Miranda, 384 U.S. at 444; Carter v.
State, 309 S.W.3d 31, 35-36 (Tex. Crim. App. 2010) ("Failure to provide the warnings and obtain
a waiver prior to custodial questioning generally requires exclusion of statements obtained.");
Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008)).
Custodial interrogation refers to "(1) express questioning and (2) 'any words or actions on
the part of the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.' Alford v.
State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012) (quoting Rhode Island v. Innis, 446 U.S. 291,
11
301 (1980)). The State concedes that because Lampkin was already under arrest for the stolen
truck and was handcuffed by the time Dean arrived, statements made to Dean were the result of
custodial interrogation.
Article 38.22, Section 2 of the Texas Code of Criminal Procedure requires an officer to
warn a defendant that
(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to and
during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time . . . .
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West Supp. 2014).
Article 38.22, Section 3 of the Texas Code of Criminal Procedure states,
Sec. 3. (a) No oral . . . statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal
proceeding unless:
(1) an electronic recording, which may include motion picture, video
tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given
the warning in Subsection (a) of Section 2 above and the accused knowingly,
intelligently, and voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making an accurate recording,
the operator was competent, and the recording is accurate and has not been altered;
12
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the
attorney representing the defendant is provided with a true, complete, and accurate
copy of all recordings of the defendant made under this article.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West Supp. 2014).
3. The Trial Court Did Not Abuse Its Discretion by Overruling
Lampkin's Article 38.22 Objection
Cassin testified that upon arresting Lampkin for the stolen truck, he gave Lampkin the
statutory warnings. He further testified that Lampkin "shook his head up and down in the
affirmative and said yes" when he was asked if he understood his rights. Lampkin does not
contend that he did not receive the proper warnings. However, he argues that the statutory
requirements of Article 38.22 were not met because the recording does not affirmatively show
Lampkin shaking his head up and down in response to Cassin's question of whether he
understood his Miranda warnings. Thus, Lampkin argues that the recording does not contain a
knowing, voluntary, and intelligent waiver.
It is true that neither Lampkin nor Cassin are fully visible on the screen as Cassin is
reading the required warnings. However, "a waiver need not assume a particular form and, in
some cases, a 'waiver can be clearly inferred from the actions and words of the person
interrogated.' Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (quoting N. Carolina
v. Butler, 441 U.S. 369, 373 (1979)). As a general rule, "'neither a written nor an oral express
waiver is required.' Id. at 24 (quoting Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App.
1988)). "The question is not whether [a defendant] 'explicitly' waived his Miranda rights, but
whether he did so knowingly, intelligently, and voluntarily." Id. at 25. To answer this question,
13
we must determine (1) whether "'the relinquishment of the right . . . was the product of a free
and deliberate choice rather than intimidation, coercion, or deception' and (2) whether the
waiver was "'made with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.'" Id. (quoting Moran v. Burbine, 475 U.S. 412, 421
(1986)). "'Only if the "totality of the circumstances surrounding the interrogation" reveals both
an uncoerced choice and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.'" Id. (quoting Moran, 475 U.S. at 421 (quoting Fare v.
Michael C., 442 U.S. 707, 725 (1979))).
As to the issue of voluntariness, Lampkin argues on appeal that Cassin could have used
coercive measures to secure the waiver of his rights. This argument was not made to the trial
court, and no evidence of coercion is shown by the appellate record.5 As to the issue of an
intelligent and knowing waiver, Lampkin contends that he was confused. At the suppression
hearing, the trial court resolved this fact question against him.
Lampkin received the proper warnings. On the recording, Lampkin is heard replying
with a yes when Cassin asked if he understood the warnings. Although not captured by the
recording, according to Cassin, Lampkin "shook his head up and down in the affirmative,"
indicating that he understood his rights. Further, no evidence suggested that Lampkin did not
waive his rights. In light of the two recordings of the arrest and Dean's and Cassin's testimony,
we find that the trial court did not abuse its discretion (1) in determining that Lampkin
5To overturn the trial court's ruling on this argued point would require pure speculation on our part.
14
voluntarily, intelligently, and knowingly waived his rights and (2) in overruling Lampkin's
Article 38.22 objection. Accordingly, we overrule Lampkin's third point of error.
D. The Trial Court Properly Denied Lampkin's Request to Submit an Article
38.23 Jury Instruction
1. The Objection and Ruling at Trial
At trial, Lampkin requested an instruction to the jury under Article 38.23 of the Texas Code
of Criminal Procedure.6 In overruling his request, the trial court offered the following explanation:
What the law is and what the evidence shows in this particular case, is that
the officer, the Gregg County deputy, read him his statutory warnings under 38.22.
It was on video, and it was audio. The voices have been identified. After the officer
reads him the warnings, then he asks him if he understands. The defendant
affirmatively said yes. On top of that, the officer said he was also shaking and
nodding his head yes.
That officer did not go into any questions, and he is then questioned by the
[T]DPS trooper shortly thereafter, all part of the same proceedings and same
transactions. And the officer knew that he had been Mirandized.
Based on that, there has been no evidence to suggest otherwise. No
affirmative evidence put on. There is no fact issue for a jury to decide on that.
Under these circumstances it is solely a question of law.
Lampkin argues that the trial court erred in refusing to submit an Article 38.23 instruction.
6Article 38.23 of the Texas Code of Criminal Procedure states,
(a) No evidence obtained by an officer or other person in violation of any provisions
of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States
of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed
that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall disregard any such evidence so
obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).
15
2. Standard of Review
Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim.
App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine
whether an error occurred and then "determine whether sufficient harm resulted from the error to
require reversal." Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984) (op. on reh'g), reaff'd by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003).
3. Analysis
An Article 38.23 instruction is only required when there is a factual dispute regarding the
legality of a search. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007); Brooks
v. State, 642 S.W.2d 791, 799 (Tex. Crim. App. [Panel Op.] 1982); Malone v. State, 163 S.W.3d
785, 802 (Tex. App.—Texarkana 2005, pet. ref d). Thus,
[t]o be entitled to an Article 38.23(a) instruction, . . . the defendant must show that
(1) an issue of historical fact was raised in front of the jury; (2) the fact was
contested by affirmative evidence at trial; and (3) the fact is material to the
constitutional or statutory violation that the defendant has identified as rendering
the particular evidence inadmissible.
Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).
A review of Lampkin's objection at trial demonstrates that he was not arguing about
historical facts, i.e., whether a waiver occurred, but instead wanted the jury to determine whether
the waiver was knowing, voluntary, and intelligent. "The first requirement for obtaining a jury
instruction under Article 38.23, is that the defendant requests an instruction on a specific historical
16
fact or facts." Madden, 242 S.W.3d at 511. Here, the jury heard testimony by Cassin and Dean
that Lampkin waived the rights enumerated in Cassin's warning, and Lampkin is heard waving
those rights on the recording of the events. As pointed out by the trial court, evidence of Lampkin's
waiver was not contested by affirmative evidence at trial. Further, in the absence of supporting
evidence, Lampkin's argument that he might have been confused was insufficient to raise a
disputed issue of historical fact.7 When there is no conflict in the evidence that raises a material
disputed fact issue, an Article 38.23 jury instruction is not required. Madden, 242 S.W.3d at 513;
see Robinson, 377 S.W.3d at 718-19.
"If there is no disputed factual issue, the legality of the conduct is determined by the trial
judge alone, as a question of law." Madden, 242 S.W.3d at 510. Accordingly, we conclude that
there was no error in the trial court's refusal to instruct the jury under Article 38.23. We overrule
Lampkin's fourth point of error.
E. Lampkin Failed to Preserve Error Regarding Alleged Admission of
Extraneous-Offense Evidence
Rule 404(b) of the Texas Rules of Evidence prohibits the introduction of evidence of other
crimes to prove the character of a person in order to show action in conformity therewith. TEX. R.
7As shown in in the following excerpt from the charge conference, Lampkin acknowledged that the evidence before
the trial court did not create a disputed fact issue:
THE COURT: But there is no evidence that he did not -- what evidence is there that he
voluntarily -- there's nothing affirmative that has been put on to contest what the officer said.
[BY THE DEFENSE]: Which leads me at the great quandary, the only evidence I could
put on would be my client.
THE COURT: And that is a quandary sometimes the defendant find themselves in . . . .
17
EVID. 404(b). In his fifth point of error on appeal, Lampkin argues that the trial court abused its
discretion in admitting extraneous-offense evidence in contravention of Rule 404(b).
1. The Objection at Trial
Prior to opening statements, the State agreed not to discuss the theft of the stolen truck in
front of the jury, and the trial court granted a motion in limine on that matter. Yet, in an audio/video
recording that the State sought to introduce, Cassin asked Lampkin how he started the truck, and
Lampkin claimed that his nephew started the truck. Cassin then asked, "You don't think it was
strange that the ignition's been punch[ed] out?" Lampkin stated that he had recently acquired the
truck. The remainder of his answer was inaudible. Lampkin objected to the State's introduction
of this portion of the recording, arguing that the only implication the jury could reach from this
testimony was that Lampkin had stolen the truck. The State responded that the evidence was
offered to show that Lampkin was so intoxicated he did not notice the ignition had been punched
out. The trial court overruled Lampkin's objection.8
2. The Argument on Appeal Does Not Comport With the Objection at
Trial
On appeal, Lampkin argues that the trial court's ruling was erroneous because it allowed
evidence of an extraneous offense in violation of Rule 404(b). We find this issue unpreserved. A
"point of error on appeal must comport with the objection made at trial." Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim.
App. 2005). As stated in Resendez v. State,
8The trial court granted Lampkin a running objection to the recording on the ground contained in his trial objection.
18
Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint
is not preserved for appeal unless it was made to the trial court "by a timely request,
objection or motion" that "stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the
context."
Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (quoting TEx. R. APP. P.
33.1(a)(1)(A)). "The purpose of requiring a specific objection in the trial court is twofold: (1) to
inform the trial judge of the basis of the objection and give him the opportunity to rule on it; [and]
(2) to give opposing counsel the opportunity to respond to the complaint." Id. "Although there
are no technical considerations or forms of words required to preserve an error for appeal, a party
must be specific enough so as to let the trial judge know what he wants, why he thinks himself
entitled to it, and do so clearly enough for the judge to understand him at a time when the trial
court is in a proper position to do something about it.'" Id. at 312-13 (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Our review of the trial transcript leads us to conclude that Lampkin's point of error on
appeal does not comport with the objection he made at trial. There is no written motion in the
appellate record arguing the grounds for Lampkin's oral motion in limine. The trial court's ruling
preliminarily preventing the State from making any reference to the stolen truck was not based on
any evidentiary argument, but only on the State's agreement to Lampkin's oral motion. From the
objections made at trial and the arguments made in response, it appears that counsel only lodged
objections under Rules 401 and 403 of the Texas Rules of Evidence. The trial court's reasoning
for overruling Lampkin's motion was also grounded in Rules 401 and 403.
19
Because Lampkin's Rule 404(b) complaint was not asserted below, we find that he has
failed to preserve this point of error.'
III. Lampkin's General Ineffective Assistance of Counsel Points of Error
A. Introduction
As many cases have noted, the right to counsel does not mean the right to errorless counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim
of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in
Strickland v. Washington. 466 U.S. 668, 687-88 (1984); see also Ex parte Imoudu, 284 S.W.3d
866, 869 (Tex. Crim. App. 2009). The first prong requires a showing that counsel's performance
fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement
can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. at 689. "This measure of deference,
however, must not be watered down into a disguised form of acquiescence." Profitt v. Waldron,
831 F.2d 1245, 1248 (5th Cir. 1987) (finding ineffective assistance where counsel failed to request
medical records and relied on court-appointed competency examination when he knew client had
escaped from mental institution).
9Moreover, the statement Lampkin wished to exclude was merely that the truck's ignition was punched out. To accept
Lampkin's chain of logic that his objection implicated Rule 404(b) notwithstanding his failure to cite that Rule, one
would have to accept that the only conclusion the jury could reach from this evidence is that the punched out ignition
proved Lampkin stole the vehicle. Yet, this logic fails. The trial court could have determined that this reference was
insufficient to suggest that Lampkin committed an offense because (1) there was no mention that Lampkin punched
out the truck's ignition and (2) it is equally plausible that the ignition was punched out because (a) someone else tried
to steal his truck or (b) Lampkin needed to punch out the ignition to start the truck because he had lost his keys to the
vehicle. Accordingly, Lampkin's trial objection failed to implicate Rule 404(b) and is not preserved for appeal.
20
The second Strickland prong, sometimes referred to as "the prejudice prong," requires a
showing that, but for counsel's unprofessional error, there is a reasonable probability that the result
of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable
probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.
Thus, in order to establish prejudice,
an applicant must show "that counsel's errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable." [Strickland, 466 U.S.] at
687 . . . . It is not sufficient for Applicant to show "that the errors had some
conceivable effect on the outcome of the proceeding." Id. at 693 . . . . Rather, [he]
must show that "there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt." Id. at 695 . . . .
The applicant has the burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Allegations of ineffectiveness must be based on the record, and the
presumption of a sound trial strategy cannot be overcome absent evidence in the
record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263,
269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the
representation, and its decision must be based on the facts of the particular case,
viewed at the time of counsel's conduct so as to eliminate hindsight bias.
Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In all cases, the "ultimate focus of
inquiry must be on the fundamental fairness of the proceeding." Id. at 696, 104
S.Ct. 2052.
Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
A failure to make a showing under either prong defeats a claim for ineffective assistance.
Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Allegations of ineffectiveness
"must 'be firmly founded in the record." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The Strickland
test "'of necessity requires a case-by-case examination of the evidence.' Williams v. Taylor, 529
21
U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring
in judgment)).
B. Lampkin's General Grounds of Ineffective Assistance First Raised on Appeal
Lampkin raises four grounds of ineffective assistance of trial counsel that were not
addressed in the motion for new trial proceedings. On appeal, Lampkin argues that his trial
counsel's assistance was ineffective because (1) he failed to object to the admission of his BAC
test results on the ground that officers used excessive force in obtaining a specimen of his blood,
(2) he failed to object to poor quality photographs and the audio/video recording depicting his rant
against Dean, (3) he failed to request a mistrial after the State commented on his failure to testify,
and (4) he made arguments that were prejudicial to Lampkin.
1. Standard of Review Applicable to Ineffective Assistance Claims First
Raised on Direct Appeal
When a claim of ineffective assistance of counsel is raised for the first time on direct
appeal, the record "is in almost all cases inadequate to show that counsel's conduct fell below an
objectively reasonable standard of performance." Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005). Nevertheless, "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 she did." Id. Moreover, where the reviewing court "can conceive potential reasonable
trial strategies that counsel could have been pursuing," the court "simply cannot conclude that
counsel has performed deficiently." Id. at 103. Essentially, when a party raises an ineffective
assistance of counsel claim for the first time on direct appeal, the defendant must show that "under
22
prevailing professional norms," Strickland, 466 U.S. at 690, no competent attorney would do what
trial counsel did or no competent attorney would fail to do what trial counsel failed to do. Andrews,
159 S.W.3d at 102.1°
C. Application
1. Sound Strategy Supports Trial Counsel's Decision Not to Object to the
Blood Draw on Grounds of Excessive Force
Lampkin argues that counsel rendered ineffective assistance in failing to object to the blood
draw on the ground that excessive force was used to obtain the blood sample.11 "[F]or the general
population, the Supreme Court has determined that a blood test is a reasonable means in which to
analyze an individual's blood alcohol level." State v. Johnston, 336 S.W.3d 649, 659 (Tex. Crim.
App. 2011). `"[T]he quantity of blood is minimal, and . . . for most people the procedure involves
virtually no risk, trauma, or pain.' Id. (quoting Schmerber v. California, 384 U.S. 757, 771
(1966)). Thus, "there is a presumption that venipuncture blood-draw tests are reasonable under
the Fourth Amendment." Id. However, a blood test must be performed in a reasonable manner in
order to survive Fourth Amendment scrutiny. Id. at 658 (citing Schmerber, 384 U.S. at 768, 771).
"Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness
10The standard of review is much more deferential to trial counsel's actions when the claim is asserted for the first
time on direct appeal because "qt]he reasonableness of counsel's choices often involves facts that do not appear in
the appellate record[,] "' Rylander, 101 S.W.3d at 110 (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002)), and because "trial counsel should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective." Id. at 111 (quoting Bone, 77 S.W.3d at 836). Here, Lampkin has raised two categories of
ineffective assistance claims: (1) those which were alleged in his motion for new trial and litigated at the hearing, and
(2) those which were raised here for the first time and which were not litigated at the hearing. The first category will
be addressed under the general Strickland standard of review for ineffective assistance claims. The second category
will be assessed according to the standard applicable to ineffective assistance claims raised for the first time on appeal.
11Counsel filed a motion to suppress the blood draw, and the trial court held a hearing on the matter during which it
was established that the blood draw was authorized by a valid warrant.
23
is purely a matter of Fourth Amendment law." Id. at 661. The inquiry is made on a "case-by-case
basis in light of the totality of the circumstances surrounding the draw." Id.
As Lampkin was being transported to the hospital, he threatened to file a complaint against
Dean for racial profiling and, after several minutes of ranting, claimed that he needed to see a
doctor because he was experiencing pain in his wrists. Dean testified that he showed Lampkin the
warrant but that Lampkin still refused to submit to the blood draw and began "yelling and cussing."
According to Lampkin, his refusal caused Dean to "grab him and push him face down on the
hospital bed" so that the nurse, Don Leach, could complete the extraction. Both Leach and Dean
testified that Lampkin was complaining of left wrist pain after the blood draw. However, Dean
said that Lampkin was examined by a doctor and received a medical clearance to be admitted to
jail.
The use of physical force and restraint to obtain a blood sample does not render a blood
draw unconstitutional unless the force is excessive. Id. at 663-64 (finding reasonable acts of
"strapping [the defendant's] legs and left arm to the phlebotomy chair with gauze and then holding
[the defendant's] right arm down to obtain a sample"). The record does not contain counsel's
reasons for failing to object to the blood draw on the ground that the amount of force used to obtain
the sample was unreasonably excessive. Counsel could have decided not to object because
(1) Lampkin requested to see a doctor for wrist pain before he even arrived at the hospital and
therefore he could not establish that Dean's actions caused Lampkin's pain or (2) he believed that
Lampkin's claim of excessive force could not be established and accusing an officer of excessive
force without being able to prove it risked alienating jurors. Further, there was no evidence that
24
Lampkin was actually injured and no description of whether Lampkin even classified his wrist
pain as anything more than minor pain associated with a reasonable amount of restraint necessary
under the circumstances. Thus, it is possible that counsel decided not to object because he did not
consider any use of force by Dean to be unreasonable. Accordingly, we find that Lampkin has
failed to meet the first Strickland prong with respect to this complaint.
a. Trial Counsel's Failure to Object to Photographs Was Correct
Lampkin argues that counsel rendered ineffective assistance when he failed to object to
photographs of Lampkin's face taken on the day of his arrest on the ground that no predicate was
laid to establish their admissibility. "There is a strong presumption that counsel's conduct fell
within the wide range of reasonable professional assistance and that the challenged action could
be considered sound trial strategy." Lemmons v. State, 426 S.W.3d 267, 271 (Tex. App.—
Texarkana 2013, pet. ref d). The record does not contain counsel's reasoning for failing to object
to the photographs. Yet, at trial, Cassin testified that the photographs were a fair and accurate
depiction of Lampkin on the night of his arrest.12 This is sufficient testimony to authenticate a
photograph. See Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988) ("` [T]the only
identification or authentication required [to admit a photograph] is that the offered evidence
properly represent the person, object or scene in question. This may be testified to not only by the
photographer or a person photographed, but by any other witness who knows the facts, even though
the witness did not take the photograph himself or see it taken.") (quoting 36 TEX. Jux.3D
12Lampkin attempts to argue that he was harmed by the admission of the photographs because they were blurry, and
thus, were not fair and accurate.
25
EVIDENCE, § 463, pp. 343-45). We find that it is entirely possible that trial counsel did not object
to the photographs on predicate grounds because he knew that the predicate was established by
Cassin. See In re A.W.T., 61 S.W.3d 87,89-90 (Tex. App.—Amarillo 2001, no pet.) (per curiam)
("[T]he evidence regarding appellant's recent history of criminal behavior . . . was admissible, and,
it being admissible, counsel was not obligated to object to it to avoid claims of ineffective
assistance.").
b. Trial Counsel's Failure to Object to the Dash Cam Recording
Could Have Been a Strategic Decision
Lampkin also argues that counsel rendered ineffective assistance in failing to object under
Rule 403 of the Texas Rules of Evidence to the dash cam recording demonstrating that Lampkin
became belligerent after his arrest, threatened to make a formal complaint against Dean for racial
profiling, and told Dean he would "have [his] badge." Under Rule 403, relevant evidence may be
excluded "if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence." TEx. R. EVID. 403.
Again, we do not have counsel's reasons for failing to object to this evidence. This
recording provided a close-up view of Lampkin's face on the day of his arrest. Lampkin's rant,
including his threats against the arresting officer, demonstrated Lampkin's level of intoxication
and his slurred speech. It is conceivable that counsel believed that (1) while the recording was
prejudicial, its probative value was not substantially outweighed by the danger of unfair prejudice,
(2) the recording would not confuse or mislead the jury, (3) the recording was not cumulative of
any other evidence because it provided the only close-up of Lampkin's face, and (4) there were no
26
considerations of undue delay because the recording was relatively short. In view of these potential
strategic considerations, we cannot say that counsel's failure to object to the dash cam recording
was unreasonable.13
Thus, we conclude that Lampkin has failed to show that counsel's decisions to refrain from
objecting to the photographs and recording fell below an objective standard of reasonableness.
c. Sound Trial Strategy Supports Counsel's Decisions to Not
Object During the State's Closing Argument and to Not Move
for a Mistrial
Lampkin next argues that trial counsel rendered ineffective assistance because he failed to
object to the State's comment on Lampkin's failure to testify and failed to move for a mistrial
based on the State's comment.
The record demonstrates that trial counsel objected when the State first argued that
Lampkin had "no excuse" for his actions, as demonstrated by this portion of the transcript:
[BY THE STATE]: We talked about having no excuse, right? We also
talked about --
[BY THE DEFENSE]: Judge, Defense has no burden. I don't appreciate
the State implying that we need to come up with an excuse.
THE COURT: I'm going to overrule that objection. The burden is on the
State, but I'm going to overrule that objection.
Soon thereafter, the State made the following argument, without objection: "And you get on the
roads with members of this community, and you're going to put all of those people in danger. For
"Further, "[t]o show ineffective assistance of counsel for the failure to object during trial, the applicant must show
that the trial judge would have committed error in overruling the objection." Ex parte White, 160 S.W.3d 46, 53 (Tex.
Crim. App. 2004). In his briefing, Lampkin fails to argue that the trial court would have erred in overruling a Rule
403 objection to the dash cam recording.
27
what reason? You have no excuse for being this selfish. You have no excuse for doing what you
did that night." Lampkin argues that counsel should have re-urged his objection.
The record is silent as to trial counsel's reasoning for failing to object to the State's second
argument that Lampkin had "no excuse." However, "Texas courts have held that in some
circumstances, a defendant is not required to constantly repeat an objection." Cardenas v. State,
787 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1990, pet. ref d). "One such circumstance
is when the objection would be futile because the court has just overruled a valid objection . . . ."
Id. (citing Graham v. State, 710 S.W.2d 588, 591 (Tex. Crim. App. 1986)). Moreover, even if the
trial court erred in overruling the first objection, it instructed the jury that the State had the burden
of proof, which cured the error. See Orellana v. State, 381 S.W.3d 645, 652 (Tex. App.—San
Antonio 2012, pet. ref d) (holding that trial court's sua sponte instruction to jury that "it was the
State that bore the burden of proof, the defense was not required to prove anything" cured any
error caused by trial court's overruling of objection to State's question establishing that defense
can request blood testing.).
Here, we find that counsel may have reasonably believed that any further objection would
have been futile given that his initial objection was recently overruled. He may also have
concluded that by continuing to object, he would be emphasizing a point that he did not want the
jury to consider in the first place. Further, because the trial court overruled his initial objection,
trial counsel was not required to move for a mistrial in order to preserve error. Cardenas, 787
S.W.2d at 162. Thus, we find that Lampkin has not met the first Strickland prong with respect to
these alleged acts of ineffective assistance.
28
d. Sound Trial Strategy Exists for Counsel's Closing Arguments
Referring to the dash cam recording of the stop and photographs of Lampkin's face taken
during his arrest, Lampkin's counsel made the following statements during closing argument:
[The photographs introduced as] State's [Exhibits] 6 and 7 are incredibly grainy,
incredibly black and white. This looks like the video footage they show on those
ghost hunter television shows saying, "Oh, look there's something that goes bump
in the night." Matter of fact, I think one of these, I'm going to put on my front door
for Halloween next year to scare the trick-or-treaters because it looks like a zombie
picture. I don't think this is indicative of what a glassy eye would look like. I
would prefer it to be in color and being a higher quality photograph.
Lampkin argues that counsel rendered ineffective assistance in making this argument because it
cast Lampkin in a bad light.
The record is devoid of counsel's reasoning for making the argument. However, it appears
that counsel was arguing that by introducing poor quality photographs with lighting that made
Lampkin look like a "zombie," the State was attempting to mislead the jury by casting Lampkin
in a bad light. Further, he appears to be arguing that the poor quality of the photographs rendered
them useless as evidence. Accordingly, we can conceive of a sound trial strategy behind counsel's
argument.
In sum, "we can conceive potential reasonable trial strategies that counsel could have been
pursuing" in each of these areas. Andrews, 159 S.W.3d at 103. Accordingly, Lampkin cannot
meet the first Strickland prong with respect to any of his claims of ineffective assistance of counsel
raised for the first time on appeal. Thus, we overrule his points of error relating to these new
grounds.
29
IV. Lampkin's Ineffective Assistance Claims Based on Counsel's Failure to Investigate
and Litigate Lampkin's Mental Health Status
A. Lampkin's General Ineffective Assistance Grounds Raised by Motion for a
New Trial
By motion for a new trial, Lampkin argued that trial counsel rendered ineffective assistance
in (1) failing to request a competency examination and hearing, (2) failing to investigate Lampkin's
mental health status, (3) failing to present mitigating evidence of his mental health status during
punishment, (4) failing to properly advise Lampkin that he would be subjected to cross-
examination by the State if he testified during punishment, and (5) requiring Lampkin to testify
during punishment. After a full evidentiary hearing, the trial court denied Lampkin's motion for
a new trial. Lampkin argues that the trial court's decision to overrule the motion for a new trial
was erroneous.
1. Standard of Review Applicable to Ineffective Assistance of Counsel
Claims First Raised in a Motion for a New Trial
With respect to Lampkin's ineffective assistance of counsel claims that were presented
during the motion for new trial proceedings, we employ the following standard of review as set
forth in Riley v. State:
An appellate court reviews a trial court's denial of a motion for new trial for an
abuse of discretion, reversing only if the trial judge's opinion was clearly erroneous
and arbitrary. A trial court abuses its discretion if no reasonable view of the record
could support the trial court's ruling. This deferential review requires the appellate
court to view the evidence in the light most favorable to the trial court's ruling. The
appellate court must not substitute its own judgment for that of the trial court and
must uphold the trial court's ruling if it is within the zone of reasonable
disagreement. "Where there are two permissible views of the evidence, the
factfmder's choice between them cannot be clearly erroneous."
30
Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) (citations omitted) (quoting Anderson
v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)). When the trial court denies a motion
for a new trial alleging ineffective assistance of counsel, "we view the relevant legal standards
through the prism of abuse of discretion." Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App.—
Austin 2009, no pet.). Thus, we decide whether the trial court erred in determining that Lampkin
failed to meet the two-prong Strickland test. Because Lampkin's first three issues involve evidence
of his mental health history, it is necessary to discuss that history in more detail.14
2. Factual Background
a. References Prior to and During Trial Relating to Lampkin's
Mental Health
Prior to and during trial, Counsel had concerns about Lampkin's mental health. In a
September 17, 2013, letter, trial counsel wrote,
I would like to address your mental competency. I am deeply concerned about your
mental stability. Have you ever had any mental issues? Have you ever been on
any medication for a mental disorder? You have repeatedly asked me to do the
same thing after I have explained to you why it cannot be done.
Some of your actions are not the actions of a normal person.
On September 26, 2013, trial counsel wrote,
I did not question your mental stability because you requested that I file timely
Motions. I question your stability because you did so three times in one day, and
purported by your own writings in excess of seven times in the past two months.
You have mailed me 36 pages of correspondence in the past two months; much of
it is very repetitious. I am glad to see that you actually responded to the contents
'Because we have a record of trial counsel's strategy with respect to the alleged acts of ineffective assistance litigated
in the hearing on Lampkin's motion for new trial, we do not apply the more differential standard of review applicable
to ineffective assistance of counsel claims first raised on direct appeal. See supra note 10.
31
of one of my letters, I was becoming deeply concerned that you were not even
reading my correspondence.
During opening statement, trial counsel told the jury, "I think [Lampkin] just has problems
grasping certain concepts and didn't understand the questions that [were] being proposed to him
[during the traffic stop]." Also, when objecting to the introduction of statements made by Lampkin
during the stop, counsel argued,
[T]his Court has admonished my client on at least two separate occasions that I am
the lawyer, he is not, he's not to address the Bench, yet he continues to do so. I
think he's confused -- I think he's competent to stand trial, but I think he was
confused on those previous days. I think he was confused earlier when he addressed
the Court. I think he was confused earlier when he was given his Miranda
warnings.
Lampkin testified during the punishment phase of his trial and informed the jury that he had
complied with treatment plans formulated by the Center of Excellence Program offered through a
Mental Health Mental Retardation (MHMR) facility in Dallas.
b. Lampkin's Mental Health Records
The record from Lampkin's trial led appellate counsel to investigate Lampkin's mental
health history. He discovered records relevant to the issue and filed a motion for a new trial on
the basis of this new information, arguing that Lampkin's trial counsel was ineffective in failing
to investigate Lampkin's mental health background and in failing to introduce that evidence to the
jury. Included in the newly discovered information were documents that were created after April
12, 2006, when Lampkin was sentenced to nine months' confinement in a state jail facility for
possession of cocaine. According to a Correctional Managed Care Mentally Retarded Offender
Program (MROP) note, after his release from prison, Lampkin became homeless, had no income,
32
could not find a job, could not pay for food, had problems sleeping due to dreams about his past
drug use, and was depressed. Lampkin was assisted by Metrocare Services, the organization that
Lampkin referred to as a MHMR facility in Dallas.
During the hearing on Lampkin's motion for a new trial, appellate counsel introduced
numerous records created after Lampkin's first documented encounter with Metrocare on May 30,
2007. These records contained evidence that Lampkin had a low IQ, was referred to as mentally
retarded, and began experiencing mental health issues as a result of long term drug use. The
records note that he was paranoid and hearing voices and that he was taking medicine for paranoia.
They also indicate that he was diagnosed with a major depressive disorder with psychotic features.
The records also contained some evidence that was unfavorable to Lampkin. For example,
they state that at one point, he was exaggerating his symptoms of joint pain to obtain a top bunk
assignment. Also, they indicate that when he applied for Social Security Disability, the
administrative judge presiding over his case thought he was faking his symptoms and ordered
additional testing before completing the hearing. A timeline of excerpts from those records is
included as an appendix to this opinion.
c. Testimony at the Motion for a New Trial Hhearing
During the hearing on the motion for a new trial, appellate counsel called trial counsel as a
witness. Trial counsel admitted that the question of Lampkin's competency weighed on his mind.
Trial counsel further testified that he thought about moving for a competency examination based
on Lampkin's "obsessive compulsive behavior." However, trial counsel explained that his
concerns were mooted because Lampkin "wrote [him] copious things to help in his defense."
33
The record supports trial counsel's assertion that Lampkin actively corresponded with trial
counsel about his case. The September 17, 2013, letter included trial counsel's response to several
letters sent by Lampkin in which Lampkin raised various legal issues. Counsel's letter
(1) acknowledged receipt of several letters by Lampkin requesting that counsel timely file pretrial
motions, (2) explained that no statute of limitations barred the use of prior DWI convictions in an
indictment for DWI, third or more, (3) addressed Lampkin's argument that Dean and Cassin did
not have probable cause to draw his blood, (4) addressed Lampkin's complaints about the
enhancement paragraphs being read in court, and (5) responded to Lampkin's double jeopardy
concerns. In addressing Lampkin's apprehension about the use of his prior convictions, trial
counsel responded, "You further request again that I do something magical to make your criminal
history disappear." While counsel acknowledged that his letter stated that he was concerned about
Lampkin's mental health and his competence to stand trial, counsel later characterized these
remarks as expressions of annoyance.
Counsel testified, "Part of what I did was to get [Lampkin] to quit writing me the same
damn letter repeatedly, over and over. I meant it as an insult to say, 'I got your first letter. I
answered your first letter. You don't need to ask me again.'"15 "And after he received this letter,
[Lampkin] told me he was competent. He took it as an insult." According to counsel, Lampkin
said, "I'm trying to protect my rights and you want to . . . question my competency?" Counsel
admitted that the question of competency weighed on his mind, but testified,
"Counsel also said, "I was becoming concerned that he was writing me multi -- multiple letters a day, multiple letters
a week. I was responding to them, and it was like he wasn't reading my letters. And I wanted to see if he was indeed
reading the material I was sending him."
34
I quit questioning his competency when I questioned it in the letter and instead of
him saying, . . . 'you know, I have been on a lot of medication; . . . I did spend a lot
of time in some facility,' he didn't offer that. Instead he said, "I'm very competent,
I know what I'm doing, I want to defend my rights."
When asked whether it would have been prudent to request his records after raising a question
about his mental stability, trial counsel merely replied, "I didn't know those records existed."
According to trial counsel, Lampkin understood the charges against him, the nature of the
proceeding, the potential consequences of the proceeding, the role of judge and jury, and the range
of punishment he faced. Counsel testified that Lampkin "knew who the State was, . . . knew who
the Judge was, . . . wanted an examining trial, [and] . . . wanted [counsel] to change venue." He
added (1) that Lampkin engaged in reasoned choices regarding legal strategy, (2) that Lampkin's
first letter to him was a request for an evidentiary hearing, (3) that he filed a motion for bond
reduction and made other objections at Lampkin's request,16 and (4) that Lampkin helped make
peremptory strikes during voir dire. Counsel testified that Lampkin could exhibit appropriate
courtroom behavior and decided wisely not to testify during the guilt/innocence phase of the trial.
Based on Lampkin's behavior, counsel concluded that Lampkin "just seemed to be intelligent but
also obsessive compulsive." Counsel told the trial court, "I think Mr. Lampkin knew what he was
doing."
16During a pretrial hearing, Lampkin attempted to make several legal arguments, including the one below:
Your Honor, sir, may I have a chance to say, please, sir. What -- my complaint was that when the
prosecutor came to me with 45-year TDCJ offer, he violated my double jeopardy clause because
he's using enhancements against me that -- that's not pertaining to my -- my case here. I can get a
45-year sentence in jail, and then for the times I requested for a bond hearing in the 188th District
Court and I was trying to get that bond hearing and they went up on my bond because I requested
for a bond hearing. My bonds were $15,000, Your Honor, and they increased it to a $55,000 bond
where I can't -- where I can't get out, where I can't post bond. And, to me, you know, letting me
have a fair chance, you know, to a fair trial, getting my bond reduced down.
35
Yet, counsel admitted that had he known Lampkin had a mental health history, he would
have been able to locate the mental health records that appellate counsel introduced during the
motion for a new trial hearing. Referring to these records, trial counsel testified (1) that he would
have argued that Lampkin was not a reckless individual but only that he was mildly mentally
retarded, (2) that he "might have" offered the mental health records as mitigating evidence during
punishment, and (3) that Lampkin might have gotten some sympathy from the jury had he
employed these strategies.
The State's prosecuting attorney, Christopher Botto, also testified that he had no reason to
question Lampkin's competence. Botto explained, "When [Lampkin] would speak to me, he was
always very polite and kind and meek. . . . [I]t was as if he knew I was the one making the offers
and he understood what my role was. And he -- it seemed like he was trying to play on my
sympathy." Botto said, "[Lampkin] always referred to me as Mr. Botto. He would ask me
questions. He would ask me questions about the offer such as, 'Come on, Mr. Botto, can't you do
better than that,' as if he's been in that position before, as if he knew exactly what was going on."
Lampkin asked Botto if he could plead guilty to stealing the car in exchange for a dismissal of the
DWI charge. Botto informed the trial court that he discussed with Lampkin the false concern that
his double jeopardy rights were being violated due to the State's use of his prior DWI convictions
to increase the level of offense. Botto also testified that the motion to suppress was filed "at the
behest of Mr. Lampkin" even though there were "no issues for a suppression hearing." Botto
opined that his interaction with Lampkin established that Lampkin had an IQ of over 70.
36
William H. McCoy, an attorney who aided Lampkin's trial counsel during voir dire,
testified that Lampkin assisted in his defense and helped counsel in making peremptory strikes.
McCoy's first observation of Lampkin yielded a conclusion that Lampkin was "slow" and "[n]ot
the sharpest knife in the drawer." However, McCoy also testified that Lampkin appeared to
comprehend his conversations with counsel. McCoy said he had no "concern about [Lampkin's]
competency or [his] understanding [of] what was happening to him that day." McCoy added, "I
run across individuals like Mr. Lampkin. And God help them, they can't help themselves for
getting in trouble, for whatever reason."
Lampkin also filed an affidavit in support of his motion for a new trial swearing that he
had mental health issues and learning disabilities and that he did not understand "some of [the]
things that were going on in [his] defense." After the evidentiary hearing, the trial court determined
that Lampkin was competent to stand trial and that he was not prejudiced by trial counsel's failure
to investigate and introduce evidence of his mental health history during the punishment phase of
trial. Accordingly, the trial court overruled Lampkin's motion for a new trial.
B. The Trial Court Did Not Err in Finding that Counsel's Decision to Forego a
Competency Examination and Hearing Was Reasonable
It is a fundamental principle of this nation's system of criminal justice "that a person whose
mental condition is such that he lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing his defense may not be
subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171 (1975). Due process prohibits
convictions of mentally incompetent persons. Turner v. State, 422 S.W.3d 676, 688-89 (Tex.
Crim. App. 2013); Corley v. State, 582 S.W.2d 815, 818 (Tex. Crim. App. 1979) (citing Bishop v.
37
United States, 350 U.S. 961 (1956)). "This constitutional right cannot be waived by the
incompetent—by guilty plea or otherwise.'" Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir.
1990) (quoting Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir. 1970)).
A competency hearing is a separate and independent hearing from the trial. TEx. CODE
CRIM. PROC. ANN. art. 46B.005 (West 2006). 'The purpose of a separate hearing is to allow a
determination uncluttered by evidence of the offense itself,'" since guilt is not an issue. Lasiter v.
State, 283 S.W.3d 909, 915 (Tex. App.—Beaumont 2009, pet. ref d) (quoting Basham v. State,
608 S.W.2d 677, 679 (Tex. Crim. App. 1980)). The requirements are simple: "(b) Except as
provided by subsection (c), the court shall hold a trial under Subchapter C before determining
whether the defendant is incompetent to stand trial on the merits." TEX. CODE CRIM. PROC. ANN.
art. 46B.005(b). Under subsection (c), a competency trial is required if requested by counsel. TEX.
CODE CRIM. PROC. ANN. art. 46B.005(c).
"A defendant is presumed competent to stand trial and shall be found competent to stand
trial unless proved incompetent by a preponderance of the evidence." TEX. CODE CRIM. PROC.
ANN. art. 46B.003(b) (West 2006). However, where there is evidence suggesting a defendant
would be entitled to a competency hearing, the conviction may be reversed for a due process
violation even if a hearing was not requested at trial. Corley, 582 S.W.2d at 818 (citing Drope,
420 U.S. 162); Pate v. Robinson, 383 U.S. 375, 376, 378 (1966). "A person is incompetent to
stand trial if the person does not have: (1) sufficient present ability to consult with the person's
lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual
38
understanding of the proceedings against the person." TEX. CODE CRIM. PROC. ANN. art.
46B.003(a) (West 2006).
Any suggestion of incompetence to stand trial calls for an informal inquiry. TEX. CODE
CRIM. PROC. ANN. art. 46B.004 (West Supp. 2014). Evidence suggesting the need for an informal
inquiry may be based on observations related to the defendant's capacity to:
(A) rationally understand the charges against [him] and the potential
consequences of the pending criminal proceedings;
(B) disclose to counsel pertinent facts, events, and states of mind;
(C) engage in a reasoned choice of legal strategies and options;
(D) understand the adversarial nature of criminal proceedings;
(E) exhibit appropriate courtroom behavior; and
(F) testify[,]
or "on any other indication that the defendant is incompetent to stand trial within the meaning of
Article 46B.003." TEX. CODE CRIM. PROC. ANN. arts. 46B.004, 46B.024(1) (West Supp. 2014).
Additional considerations include the defendant's current indications of mental illness, his
personal history of mental illness, whether the condition has lasted or is expected to last
continuously for at least one year, the degree of impairment resulting from the mental illness, the
specific impact of any impairment on the defendant's capacity to rationally engage with counsel,
whether the defendant takes psychoactive or other medications, the effect, if any, such medication
may have on the defendant's appearance, demeanor and ability to participate in the proceedings.
TEX. CODE CRIM. PROC. ANN. art. 46B.024(2)—(5) (West Supp. 2014).
On the other hand, "the fact that a defendant is mentally ill does not by itself mean he is
incompetent." Turner, 422 S.W.3d at 691; see McDaniel v. State, 98 S.W.3d 704, 711 (Tex. Crim.
App. 2003). "It is not enough . . . to allege unspecified difficulties in communicat[ion] . . . ."
39
Moore v. State, 999 S.W.2d 385,394 (Tex. Crim. App. 1999). Rather, there must be "specific and
illustrative [evidence] of a present inability to communicate with the defendant." Id. Further,
"[e]vidence of mental impairment alone does not require that a special jury be empaneled where
no evidence indicates that a defendant is incapable of consulting with counsel or understanding
the proceedings against him." Id. at 395; see Turner, 422 S.W.3d at 690-91 ("[The] legislative
criteria for competency contemplate a defendant who is at least minimally able to interact with his
trial counsel in a 'reasonable and rational' way (even if they do not necessarily agree) in
formulating decisions how most effectively to pursue his defense.").
Lampkin's mental health records suggested that Lampkin had borderline intellectual
functioning and experienced other mental health issues until 2010. In his affidavit, Lampkin stated
that he was unable to understand "some" of the trial court proceedings. In denying Lampkin's
claim of ineffective assistance of counsel based on the failure to request a competency examination
and hearing, the trial court ruled,
Yes, there [are] some references in Defendant's Motion for New Trial [Exhibits]
. . . about the defendant's IQ tests and where he stands. As to the references of mild
retardation, . . . the mild retardation was only an initial diagnosis, but once they got
further into it, most of the records, especially in 2009, reflect that he -- the diagnosis
or the Axis II diagnosis under the Diagnostic and Statistical Manual is borderline
intellectual functioning; that is above mild retardation.
That is a -- shows more intelligence. It is higher -- results from a higher IQ.
That in and of itself does not make somebody incompetent to stand trial. . . .
This defendant wrote this Court numerous letters showing his -- a rational
as well as factual understanding of the proceedings against him. . . . [A]fter the
Motion to Suppress and the Motion to Quash was denied, this defendant filed a
40
motion . . . wanting his attorney to appeal, and then stating grounds on why he
thought that I erred in making the -- in overruling his motions.L171
This defendant was able to definitely assist in his trial. He showed a clear
rational as well as factual understanding of the proceedings against him. This Court
had no question as to his mental competency during any court proceedings. . . .
[A]lso, the Court did notice when it read the Affidavit that the defendant is
definitely competent, at least in his current attorney's view, to file an affidavit. . . .
The trial court did not err in making this ruling. Here, the evidence before the trial court
established that during a mental retardation evaluation, Lampkin "exaggerate[ed] symptoms of
mental retardation," but "when confronted[,] beg[an] displaying an adequate amount of effort to
answer questions truthfully." Subsequently, the mental health records indicate that an
administrative judge presiding over a hearing to determine Lampkin's disability status for purposes
of Social Security benefits found that Lampkin was "faking his disability." Because no medical
or mental health records were provided to the trial court clarifying Lampkin's mental health after
2010, the trial court had no evidence that Lampkin's current mental status impacted his
competency to stand trial. Lampkin's trial counsel, Assistant District Attorney Botto, and McCoy
all testified that their conversations with Lampkin led them to conclude that Lampkin was
competent. The trial court, which was in the best position to observe Lampkin, found that Lampkin
demonstrated his competency to stand trial through legal arguments he made during hearings and
in pro se motions and correspondence filed with the trial court.
17Lampkin filed an intelligible pro se motion for a new trial.
41
The record from Lampkin's trial further supports the trial court's decision to reject this
ground of ineffective assistance of counsel. At punishment, Lampkin made the following
statement and plea for mercy:
Ladies and gentlemen of the jury, how are you today? I just want you to know that
I accept responsibility for what I have done. I thought that I was not intoxicated. I
respect the jury's verdict. I would request an opportunity to change.
I paid my debt to society, and I am ready to move on with my life. And the
reason why I'm saying that I had paid my debt to society, and I'm ready to move
on with my life is that when I first came here it took me two, about two-and-a-half
months, two months to get down on my knees and ask God to forgive me for what
I had done. . . .
And when you see the pictures pertaining to me and my wife, at that time I
was well equipped in recovery, you know, treatment, you know. I was maintaining
my sobriety. I was attending my AA meetings and classes, and it was very helpful
for me.
But as far as me just being a person that had a bad habit, just violently
aggressive, I'm not. You know, I work. You know, I have compassion for people,
you know. And it's just -- you know, we get weak, we get weak and make bad
choices sometimes.
And I regret that today, every day I try to get on my knees and ask to forgive
myself for what I've done because I know what I've done was improper. And if
there's any chance that I could be given the chance to change, given the chance to
be that person that I once was, that I thought that I could be, that intelligent human
being that respects humanity, that I have love for God's creation, you know, not
only just person, but the animals, the bees and the birds.
It was not my intent to do what I did intentionally. And I'm asking for
mercy -- for the Court to have mercy and be lenient on me to where I can get back
into that program, if it has to be here or wherever it had to be. But I accept my
42
responsibility, and I just want to say to the Court and to the honorable jurors that
I'm -- please forgive me if I done -- caused any problems or disruptive. I'm just
asking for lenient.
Lampkin's pleas to the jury demonstrated his awareness of the nature and the consequences of the
proceeding. See Magic v. State, 217 S.W.3d 66, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(refusing to find ineffective assistance for failure to request competency hearing where defendant,
although suffering from bi-polar disorder, demonstrated competence in dealings with court and
through pro se motions he filed).
In light of the statutory presumption of competence to stand trial, the appellate record, and
the lack of evidence that Lampkin's mental condition "operate[d] in such a way as to prevent him
from rationally understanding the proceedings against him or engaging rationally with counsel in
the pursuit of his own best interests," we conclude that the trial court did not err in finding that
counsel's decision to forego a request for a competency examination and hearing was reasonable.
Turner, 422 S.W.3d at 691. Further, from our review of Lampkin's medical records, we conclude
that Lampkin cannot demonstrate "a reasonable probability that he would have been found
incompetent to stand trial if the issue of competency had been raised and fully considered."
Ex parte LaHood, 401 S.W.3d 45, 54 (Tex. Crim. App. 2013). Because Lampkin did not meet the
Strickland standard, the trial court properly denied his motion for a new trial on this ground of
ineffective assistance of counsel. Accordingly, we overrule this point of error.
43
C. Counsel's Failure to Investigate Lampkin's Mental Health Status for Use as
Potential Evidence of Mitigation at the Punishment Phase of Trial Constituted
Deficient Performance
1. The Standard of Review Under Wiggins v. Smith, 539 U.S. 510 (2003)
Yet, counsel's determination that Lampkin was competent and his decision to forego a
competency evaluation did not render Lampkin's mental status irrelevant, because the same facts
that caused counsel to question Lampkin's competence, if investigated, would have led to the
discovery of a substantial mental health history which could have been evaluated for use as
mitigating evidence at trial. A criminal defense lawyer must have a firm command of the facts of
the case as well as governing law before he can render reasonably effective assistance to his
client—in or out of the courtroom. Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).
Thus, "counsel has a duty to make reasonable investigations." Strickland, 466 U.S. at 691
(emphasis added). "'Strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.'" Wiggins v. Smith, 539 U.S. 510, 521-22
(2003) (quoting Strickland, 466 U.S. at 690). However,
"strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments."
Id. (quoting Strickland, 466 U.S. at 691); see Ybarra, 629 S.W.2d at 946.
Accordingly, in any criminal case, counsel must first evaluate what "conceivable line[s] of
mitigating evidence" exist and then decide whether following any of those lines would likely lead
44
to evidence that "would . . . assist the defendant at sentencing." Wiggins, 539 U.S. at 533. In
determining what the conceivable leads are, counsel must first evaluate the information available
to him at that time. The reviewing court must decide whether the attorney's decision either to
forego investigation, or to stop investigating at some later point, was reasonable "'under prevailing
professional norms.' Id. at 522-23 (quoting Strickland, 466 U.S. at 688). In evaluating whether
counsel's decisions were reasonable under the norms of the profession, the reviewing court must
defer to trial counsel's decisions required by Strickland, taking into consideration "not only the
quantum of evidence already known to counsel, but also whether the known evidence would lead
a reasonable attorney to investigate further." Id. at 527. Counsel's performance must be viewed
objectively and "'from counsel's perspective at the time.' Id. at 533 (quoting Strickland, 466
U.S. at 689). Stated simply, the court must decide whether a reasonable attorney would consider
the information available to defense counsel worthy of further investigation, and if so, how much
additional investigation a reasonable attorney would perform.
But a decision to investigate or not to investigate a potential lead must be made; a failure
to investigate is not deemed reasonable simply because counsel did not consider it. On the other
hand, it is possible that the existence of some mitigating evidence might be so unlikely that no
attorney would conceive of its existence; it is also possible that a defendant might not want his
counsel to know of the information and might not assist his attorney in finding it. Nevertheless,
an attorney cannot remain indifferent to the existence of mitigating evidence. Therefore, we must
decide, under the prevailing norms of our profession, whether counsel could have reasonably failed
45
to investigate Lampkin's mental health history given the information available to him in this case.
See Strickland, 466 U.S. at 690.
2. Application
The first step in this analysis is to identify the information available to trial counsel that
would trigger a duty to investigate further. Second, we must determine whether, viewed
objectively and 'from counsel's perspective at the time,'" Wiggins, 539 U.S. at 533 (quoting
Strickland, 466 U.S. at 689), "the known evidence would lead a reasonable attorney to investigate
further," Id. at 527.
a. Information Available to Trial Counsel and His Response to
that Information
With respect to the first issue, trial counsel admitted he had concerns about Lampkin's
mental status as it related to Lampkin's competency. Counsel's letters to Lampkin document these
concerns, and he even asked Lampkin if he had mental issues or was taking medication for a
medical disorder. Trial counsel admitted that a fair conclusion to draw from those letters is that
he had concerns about Lampkin's mental stability and competence. He also admitted that Lampkin
persisted over several months in the behaviors which caused him to send the letters to Lampkin in
the first place. Moreover, attorney McCoy testified that he had concerns about Lampkin's
competence to stand trial when he first met him, though he quickly resolved those concerns after
visiting with him. Trial counsel further testified that he sent letters to Lampkin asking him to
identify potential punishment witnesses. Lampkin did not answer trial counsel's inquiries
regarding his mental health history.
46
Lampkin also did not tell trial counsel that he had taken medication due to his mental health
or that he had spent time in a mental health facility. Rather, Lampkin simply said he was "very
competent" and "know what I'm doing, I want to defend my rights." Trial counsel said Lampkin
treated his questions as an insult. Lampkin never offered any information to his trial counsel to
establish that he had been examined for mental health issues. Further, Lampkin never answered
counsel's question concerning whether he had ever been on medications for mental health issues.
Counsel gave two explanations for why he decided not to investigate Lampkin's mental
health status. First, after further interaction with Lampkin, counsel concluded on his own that
Lampkin was competent. Second, Lampkin failed to respond to counsel's questions about his
mental health. Because the trial court directly assessed these reasons for reasonableness, we must
review the trial court's reasonableness determination.
Because our evaluation of trial counsel's performance "includes a context-dependent
consideration of the challenged conduct as seen 'from counsel's perspective at the time,' Id. at
522-23 (quoting Strickland, 466 U.S. at 689), we must also consider the nature of this case. As
discussed above, the evidence against Lampkin's guilt was strong from the outset. Lampkin's
battle was not at the guilt/innocence stage, but at the punishment phase of the trial. Yet, it appears
that trial counsel focused on the issue of Lampkin's competency but did not consider whether his
mental history might serve to mitigate his punishment. Trial counsel testified that he believed
Lampkin had "obsessive compulsive behavior" and that Lampkin would repeatedly ask him to do
the same thing. Counsel wrote a letter to Lampkin expressing his "deep[] concern[] about
[Lampkin's] mental stability," since "[s]ome of [Lampkin's] actions [were] not the actions of a
47
normal person." Although the letter was ostensibly meant to insult Lampkin and prevent him from
sending repetitive letters, counsel admitted that the question of Lampkin's competency was
something he seriously thought about and evaluated prior to the trial of this case.
"[A] tactical choice not to pursue one course or another 'should not be confused with the
duty to investigate."' Bouchillon, 907 F.2d at 597 (quoting Beavers v. Balkcom, 636 F.2d 114,
116 (5th Cir. 1981)). "To do no investigation at all on an issue that not only implicates the
accused's only defense, but also his present competency, is not a tactical decision. Tactical
decisions must be made in the context of a reasonable amount of investigation, not in a vacuum."
Id. "It must be a very rare circumstance indeed where a decision not to investigate would be
`reasonable' after counsel has notice of the client's history of mental problems." Id.; see LaHood,
401 S.W.3d at 52 (citing Bouchillon as support for conclusion that failure to investigate was
unreasonable and quoting above passage parenthetically); Freeman v. State, 167 S.W.3d 114, 119
(Tex. App.—Waco 2005, no pet.) (same); Conrad v. State, 77 S.W.3d 424, 426 n.13 (Tex. App.—
Fort Worth 2002, pet. ref d) (same).
Failure to uncover and present mitigating evidence "cannot be justified as a tactical
decision when defense counsel has not conducted a thorough investigation of the defendant's
background." Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet.
dism'd). Counsel had a duty to make a reasonable investigation. Here, the record establishes that
trial counsel was concerned about Lampkin's mental health; yet, the record does not reveal any
steps taken by counsel to follow up on his concerns.
48
b. Whether a Reasonable Attorney Would Have Investigated
Further
The reported cases considering this issue lead us to conclude that a reasonable attorney
would have investigated further. For example, in Barnett v. State (Barnett II), we held that trial
counsel was not ineffective even though he failed to uncover evidence that the defendant had been
diagnosed with bipolar disorder a few months before the assault in question, that he had been
treated at a state Mental Health and Mental Retardation (MHMR) facility, and that he "had been
recently released from prison after twelve years and could not find employment, . . . experienced
depression, sleep disorder, 'problems not eating . . . isolation, agitation, anger, anxiety, crying
spells, racing thoughts, [and] feelings of hopelessness/worthlessness.'" Barnett v. State (Barnett
II), 344 S.W.3d 6,16-18 (Tex. App.—Texarkana 2011, pet. red)." Yet, we specifically noted
that trial counsel in that case talked to the defendant's mother and hired an investigator who was
unable to discover any mitigating evidence. Id. at 17-18.
By contrast, in Freeman, the Waco Court of Appeals found that trial counsel was
ineffective for failing to discover defendant's mental health history, including two prior psychiatric
hospitalizations where he was treated "because he reported he was having demons [and] needed
help," together with evidence that "he had been receiving outpatient treatment for mental illness
on a regular basis for more than a year before the date of the offense." Freeman, 167 S.W.3d at
118. At the hearing on defendant's motion for a new trial, trial counsel testified that he had filed
a motion to determine defendant's competency because he was having a hard time communicating
18 See infra note 25.
49
with the defendant. Id. He also testified that defendant's parents told him he had been under a
physician's care and "'had had problems for a number of years' and that defendant told him he
was "self-medicating his psychosis with crack cocaine.' Id. at 119. The Waco court found that
on this record, trial counsel failed to sufficiently investigate the defendant's mental health history
and therefore rendered ineffective assistance of counsel. Id.
In LaHood, the Court of Criminal Appeals found that counsel was ineffective in failing to
investigate the appellant's mental health history. LaHood, 401 S.W.3d at 45. The Court of
Criminal Appeals noted that trial counsel knew that appellant was bipolar and that he was
prescribed several psychiatric medications. Id. at 51. Also, the appellant had engaged in disruptive
behavior at trial, and although trial counsel disputed their testimony, appellant's father and ex-wife
testified that they had told counsel of appellant's mental health history. Id. The Court of Criminal
Appeals ultimately found that the appellant was not prejudiced by trial counsel's failure to
investigate his mental health because the appellant did not prove that had she investigated the
matter, "that there was a reasonable probability that he would have been found incompetent to
stand trial if the issue of competency had been raised and fully considered." Id. at 54.
Nevertheless, the court did find that trial counsel's failure to investigate that issue was
unreasonable. Id. at 51-52. Specifically, the Court of Criminal Appeals stated,
[C]ounsel's belief as to a medical issue is based on her own lay opinion, even
though she knew Applicant had mental-health issues in the past and was taking
medications that gave him, in her estimation, a "substantial probability of regaining
competency." Applicant's medical records from the jail were easily accessible and
contained significant information (including evidence of a suicide attempt during
the trial) that could have allowed his attorney to assert that he was incompetent.
After reviewing the quantum of evidence known to counsel before and during trial,
and whether the known evidence would lead a reasonable attorney to investigate
50
further, we conclude that trial counsel's failure to further investigate was
unreasonable under the circumstances.
Id.
Finally, in Conrad, the Fort Worth Court of Appeals found that trial counsel provided
ineffective assistance in failing to investigate the appellant's mental health history. Conrad, 77
S.W.3d 424. The court of appeals noted that trial counsel relied on reports from the State's
appointed mental health experts who found that appellant was competent to stand trial and that
counsel did no further investigation into his client's mental health status. Id. at 426. In finding
trial counsel ineffective, the court of appeals noted,
Trial counsel did not discuss the doctors' findings with them, even though he agreed
they had been cooperative with him in the past. Trial counsel looked at no medical
records regarding Appellant, did not request his own expert, did not contact the
Social Security Administration about Appellant's mental illness, did not speak to
the attorneys who had represented Appellant in the past, and did not speak with any
doctors treating Appellant at the VA hospital. Trial counsel testified that Appellant
believed he had no mental problems and did not want a competency examination.
Id.
In the present case, trial counsel went to the jail and tried to locate a witness Lampkin had
identified—a nephew named Graylon Rowl who went by the street name "Cash." But the jail was
unable to locate anyone by that alias. Lampkin also told trial counsel that Rowl's last name was
spelled Ral, and trial counsel had the jail search under that name, but they did not fmd Mr. Rowl.
Trial counsel testified, though, that his purpose in trying to locating this witness was to determine
if Lampkin had been drinking during the two hours he had been travelling before he was stopped.
Accordingly, trial counsel sought this witness for purposes of guilt/innocence issues, not
51
mitigation. There is no evidence that counsel performed any investigation into Lampkin's mental
health history.
For instance, there is no evidence that trial counsel hired an investigator or attempted to
speak to any of Lampkin's other relatives. Lampkin testified during the punishment phase of trial
that he was married, and he identified his wife by name, but the record does not demonstrate that
trial counsel ever attempted to talk to Lampkin's wife or any other relative about his concerns over
Lampkin's mental health status. Likewise, there is no evidence that trial counsel ever inquired of
any jail personnel whether Lampkin was receiving or had received any type of mental health
services in the past.
Counsel's reasons for failing to investigate Lampkin's mental health status were (1) that
he stopped questioning Lampkin's competency and decided that Lampkin was simply obsessive
compulsive after Lampkin claimed that he was competent19 and (2) that he concluded that Lampkin
was competent based on his discussions with him. It appears that once counsel satisfied himself
that Lampkin was competent, he never considered whether the characteristics which caused his
concerns about Lampkin's competency might lead to the discovery of mitigating evidence. As
further explained below, his belief that Lampkin was competent to stand trial was not
unreasonable, but it did not absolve him from his duty to investigate potential mitigating evidence.
The present case falls between Barnett II, Freeman, and LaHood. Lampkin's trial counsel
did not have the specific information available to him that was available to trial counsel in
19We note that a defendant's belief as to his own competency does not absolve counsel of the duty to investigate the
matter. Conrad, 77 S.W.3d at 426.
52
Freeman, but he did have specific concerns about Lampkin's mental health status as in LaHood.
Yet, he did not attempt to contact Lampkin's wife or hire an investigator to assist in investigating
possible mitigating evidence as trial counsel did in Barnett II and failed to do in LaHood.
Essentially, trial counsel asked Lampkin whether he had ever received treatment and whether he
was taking medication, but when Lampkin became defensive and assured trial counsel he was
competent, trial counsel stopped investigating. In that respect, this case is very similar to Conrad.
While trial counsel has no obligation to investigate every conceivable mitigating lead, he cannot
ignore such leads, either. In this case, a reasonable attorney, when presented with the information
available to Lampkin's trial counsel, would have further investigated Lampkin's mental health
history.
Given counsel's continued concerns about Lampkin's mental health, reasonable
professional judgments did not support his choice to limit his investigation of mitigating evidence,
despite his belief in Lampkin's competence. See LaHood, 401 S.W.3d at 51-52; Freeman, 167
S.W.3d at 119-20; Conrad, 77 S.W.3d at 426. The information available to trial counsel was
sufficient to require further investigation, and under prevailing professional norms, no reasonable
attorney would have failed to do so. Thus, the trial court should have found that trial counsel's
failure to investigate Lampkin's mental health history for the purpose of uncovering mitigating
evidence constituted deficient performance.
53
D. Prejudice Arising from Counsel's Failure to Investigate Lampkin's Mental
Health Status
1. During the Guilt/Innocence Phase of Trial
Next, in order to meet Strickland's second prong, the prejudice prong, Lampkin was
required to show that but for counsel's unprofessional error, there is a reasonable probability that
the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88. Trial
counsel testified that he would have argued during guilt/innocence that Lampkin's mental
retardation negated or diminished his culpability. While diminished capacity is not an affirmative
defense, it is a "failure-of-proof defense in which the defendant claims that the State failed to prove
that the defendant had the required state of mind at the time of the offense." Jackson v. State, 160
S.W.3d 568, 573-74 (Tex. Crim. App. 2005); see Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim.
App. 2008). Focusing on counsel's testimony, Lampkin argues that counsel's ineffective
assistance prevented him from employing a diminished capacity defense.
However, no mens rea is required to establish DWI. See TEX. PENAL CODE ANN.
§ 49.04(a); Sanders v. State, 936 S.W.2d 436, 437-38 (Tex. App.—Austin 1996, pet. ref d) (citing
Aguirre v. State, 928 S.W.2d 759, 759-60 (Tex. App.—Houston [14th Dist.] 1996, no pet.)). Thus,
it appears that the trial court could have excluded Lampkin from presenting the evidence of his
mental retardation or mental health during guilt/innocence. Accordingly, Lampkin cannot meet
the second Strickland prong with regard to the guilt/innocence phase of the trial.
54
2. During the Punishment Phase of Trial
Lampkin also argues that counsel's failure to investigate prejudiced him during the
punishment phase of trial because it precluded the jury from considering his mental health records
for the purpose of mitigating his punishment.
a. Standard of Review
In evaluating prejudice in this context, we weigh "the evidence in aggravation against the
totality of available mitigating evidence" in the entire record. Wiggins, 539 U.S. at 534. In
conducting this assessment, courts often review the evidence presented during the hearing on the
motion for a new trial to see if a proper investigation would have uncovered evidence that could
have changed the outcome of the trial. See Freeman, 167 S.W.3d at 120; Conrad, 77 S.W.3d at
426-27.
Establishing that prejudice occurred during the sentencing phase of a non-capital case
where the sentencing authority has broad discretion is a field of law with little guiding precedent.2°
The United States Supreme Court cases addressing Strickland prejudice during sentencing involve
either death penalty cases or cases decided under the Federal Sentencing Guidelines. Also, few
states have sentencing schemes like Texas where the jury determines the sentence and is granted
broad discretion in doing so.21 Yet, a few principles can be discerned from the Supreme Court
cases and the few Texas cases which have considered this issue.
'See Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C. L. REV. 1069 (2009) (discussing and
comparing issues associated with establishing prejudice under Strickland in mandatory and discretionary sentencing
schemes in non-capital cases).
21See Jenia Iontcheva, Jury Sentencing As Democratic Practice, 89 VA. L. REV. 311, 314 (2003) (noting that as of
2003, only six states employed jury sentencing in non-capital cases).
55
First, even a small increase in a defendant's sentence is prejudicial. In Glover v. United
States, the Supreme Court held that defense counsel's failure to object to the federal district court's
sentencing calculations that resulted in an "unlawful increase of anywhere between 6 and 21
months" to Glover's sentence was prejudicial under Strickland. Glover v. United States, 531 U.S.
198, 200, 202 (2001). In reaching this conclusion, the Supreme Court, noting the inherent
prejudicial effect of ineffective assistance during the sentencing phase, stated, "[O]ur
jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance." Id.
at 203. However, because the federal sentencing guidelines were mandatory when Glover was
decided,22 there was no doubt that "but for counsel's unprofessional errors, the result of the
proceeding would have been different," Strickland, 466 U.S. at 694, because, assuming the validity
of a timely objection, counsel's failure to object directly resulted in the increased sentence.
Second, in a discretionary, non-capital sentencing scheme, it is difficult to demonstrate that
an increase actually occurred. In Texas' non-capital sentencing scheme, unlike the federal
sentencing framework, there are no guidelines beyond the statutory punishment ranges established
by the Legislature. The punishment for a first degree felony in Texas is commitment to the Texas
Department of Criminal Justice Correctional Institutions Division (CID) for anywhere from a
minimum of five years to a maximum of ninety-nine years or life. TEX. PENAL CODE ANN.
§ 12.32(a) (West 2011). In Texas criminal proceedings, juries deliberate in secret, TEx. CODE
'Glover was decided under the federal mandatory sentencing guideline scheme in effect at that time under which a
trial court had little discretion to deviate from the guidelines. Subsequently, the Supreme Court held that the
mandatory federal sentencing guidelines violated the Sixth Amendment. United States v. Booker, 543 U.S. 220, 245
(2005). Now, the federal guidelines are advisory. Id.
56
CRIM. PROC. ANN. art. 36.215 (West Supp. 2014), art. 3622 (West 2006), and make no written
findings other than those contained on a pre-printed, general verdict form provided by the trial
court and signed by the presiding juror, TEX. CODE CRIM. PROC. ANN. art. 37.07, § 1(a) (West
Supp. 2014). Thus, determining whether counsel's deficient performance prejudiced the defendant
during the punishment phase, under Texas' punishment scheme, is difficult given the breadth of
the punishment ranges and the lack of information regarding the factors that influenced the
sentencing authorities. See Glover, 531 U.S. at 230.
Yet, establishing Strickland prejudice during the punishment phase of a non-capital trial in
Texas is not impossible. Shortly after the Supreme Court decided Strickland, the Court of Criminal
Appeals held that "with some exceptions not applicable here, Strickland clearly requires a showing
of prejudice for all claims alleging deficient attorney performance primarily because the
government is not responsible for and cannot prevent deficient attorney performance." Hernandez
v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). In the cases decided since Hernandez,
whether the Court of Criminal Appeals has found prejudice during the sentencing phase of non-
capital cases turned on whether the facts demonstrated prejudice beyond mere conjecture or
speculation. Thus, in Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012), the court found
prejudice because "it would not be 'pure conjecture and speculation' to find that the deficiencies
of trial counsel influenced the jury when it assessed the Applicant thirty-five years more than the
upper end of punishment requested by defense counsel." Id. at 865 (quoting Ex parte Cash, 178
S.W.3d 816, 818 (Tex. Crim. App. 2005)). By contrast, in Ex parte Cash, 178 S.W.3d 816, 818-
19 (Tex. Crim. App. 2005), the court did not find Strickland prejudice because "[s]uch a finding
57
in this case would be based on pure conjecture and speculation. See Strickland, 466 U.S. at 693
(not enough for a defendant to show that counsel's errors had some conceivable effect on the
outcome of the proceeding)."
The Courts of Appeals have applied this standard as well. For example, in an unpublished
opinion, Mack v. State, No. 06-06-00222-CR, 2007 WL 1435003 (Tex. App.—Texarkana May 17,
2007, no pet.) (mem. op., not designated for publication), we held that even though defense counsel
failed to object to incorrect testimony by the State's investigator and incorrect statements by the
State during closing arguments regarding the parole eligibility laws, defendant could not show
prejudice because the defendant received "a sentence in the middle of the [sentencing] range." Id.
at *2. We further noted that "[w]e would only be speculating to suggest that the result would have
been any different in the absence of the State's objectionable conduct." Id. at *2. Likewise, the
Dallas Court of Appeals, in an unpublished opinion, Chapman v. State, Nos. 05-05-01349-CR, 05-
05-00135-CR, 2007 WL 10560 (Tex. App.—Dallas Jan. 3, 2007, no pets.) (not designated for
publication), found no prejudice even if it assumed defense counsel's failure to object to
inadmissible extraneous-offense evidence offered during the punishment phase, because "[e]ven
without any testimony regarding extraneous offenses against Rodriguez and Gonzales, the State
established appellant had an extensive record of offenses. . . . Accordingly, one need not resort to
speculation about the effect of the extraneous victim impact testimony to explain the jury's
assessment of maximum sentences in these cases." Id. at *3.23 Thus, under Texas' discretionary
23Although these unpublished cases have no precedential value, we may take guidance from them "as an aid in
developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet.
red).
58
non-capital punishment scheme, in order for an appellant to prevail on an ineffective assistance of
counsel argument resulting from professional errors applicable to the sentencing phase where the
jury determined the sentence, the record must demonstrate Strickland prejudice beyond mere
conjecture and speculation.
Although that standard of review is somewhat vague, the prior Texas cases addressing this
issue reveal certain general factors which are important in evaluating whether the standard has
been met.24 First, while the existence of a maximum sentence is not determinative of whether
prejudice is shown, Rogers, 369 S.W.3d at 865 (finding that prejudice was not speculative where
seventy-five-year sentence was imposed), the fact that a defendant received a maximum sentence
is a factor to be considered, Ex parte Lane, 303 S.W.3d 702, 719 (Tex. Crim. App. 2009) (finding
prejudice where maximum sentence imposed for a non-violent offense). Similarly, disparity, if
any, between the sentence imposed and the sentence(s) requested by the respective parties is a
factor to be considered. Mack, 2007 WL 1435003 at *2 (noting that finding of prejudice would
require speculation and conjecture because State argued for a maximum sentence, defendant
argued for minimum sentence, and jury rendered sentence in middle of punishment range). Third,
the nature of the offense charged and the strength of the evidence presented at trial is a factor.
Chapman, 2007 WL 10560 at *3 (finding no prejudice where "[t]he present cases were especially
egregious because after stealing a police bait car, appellant led officers on a dangerous eighty-
mile-per-hour chase through a residential neighborhood on a Saturday afternoon culminating in an
'These factors are noted in order to resolve the case before us and address only the particular situation presented in
this case, i.e., a non-capital case involving the question of Strickland prejudice during the punishment phase of trial in
which the jury assessed punishment. We state no opinion about whether they would be applicable or relevant to any
other situation.
59
accident that destroyed the stolen vehicle."). Fourth, the egregiousness of the error—essentially,
the relationship between the amount of effort and resources necessary to have prevented the error
as compared to the potential harm from that error—has been considered. Compare Rogers, 369
S.W.3d at 865 (finding that it was not speculative to conclude that defense counsel's failure to
secure and present DNA evidence and defendant's GPS ankle monitor records was prejudicial
where counsel knew of existence of that evidence before trial but simply failed to follow up on it,
the extraneous-offense evidence was highly inflammatory, and DNA and GPS evidence
exonerated defendant of guilt for that extraneous offense) with Cash, 178 S.W.3d at 818 (finding
it speculative to deem defense counsel's failure to obtain defendant's verification of probation
application prejudicial where sentence was thirty years more than maximum permissible for
probation eligibility). Finally, the defendant's criminal history has been considered. See Mack,
2007 WL 1435003 at *2 (observing that "State presented evidence of 'numerous thefts, resisting
arrest, evading arrest, criminal trespass, felony drugs, felony indecency with a child, bond jumping,
skipping out, basically a life of crime, as much of a career criminal as you're going to find").
In cases where the deficient performance involves the failure to investigate mitigating
evidence, however, some courts of appeal have found prejudice even when they concluded it was
speculative to do so. For example, in Milburn, the court held that prejudice was established by
counsel's failure to investigate and present mitigating evidence during the punishment phase of
trial, "even though it [was] sheer speculation that character witnesses in mitigation would have in
fact favorably influenced the jury's assessment of punishment." Milburn, 15 S.W.3d at 271.
Likewise, in Freeman, the court held that defense counsel's failure to investigate defendant's
60
mental health history was prejudicial "'even though it [was] sheer speculation that [evidence of
his mental illness and medical history] would have in fact favorably influenced the jury's
assessment of punishment.'" Freeman, 167 S.W.3d at 121 (footnote omitted) (quoting Milburn,
15 S.W.3d at 271). And, in Barnett v. State (Barnett I), we found that the defendant could
potentially demonstrate prejudice during the punishment phase25 where defense counsel failed to
investigate and present evidence that the defendant had "'various mental illnesses, including being
bipolar,' and [had] had treatment at MHMR'" under the reasoning stated by the court in Freeman.
Barnett v. State (Barnett 1), 338 S.W.3d 680, 686-87 (Tex. App.—Texarkana 2011, order), pet.
ref'd, 344 S.W.3d 6 (Tex. App.—Texarkana 2011) (citing Freeman, 167 S.W.3d at 121).
A strict reading of these cases would suggest that prejudice is established as a matter of
law where the basis for the deficient representation is counsel's failure to investigate and introduce
mitigating evidence at punishment. The United States Supreme Court has held that where the
ineffective assistance rises to the level of a complete denial of counsel, prejudice is presumed, and
"In]o specific showing of prejudice [is] required' because 'the adversary process itself [is]
presumptively unreliable."' Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (quoting United
States v. Cronic, 466 U.S. 648, 659 (1984)). In fact, in Milburn, the Court of Criminal Appeals
noted that had the trial court not permitted counsel to introduce the mitigating evidence at trial,
prejudice would have been presumed and seemed to indicate that failure to investigate and
'In Barnett I, we did not decide whether ineffective assistance of counsel or prejudice had been established, only that
the defendant's "motion for new trial and accompanying affidavit [gave] rise to reasonable grounds that could [have
entitled] Barnett to relief," and we therefore abated the appeal and remanded the case "to the trial court for a hearing
on Barnett's motion for new trial." Barnett I, 338 S.W.3d at 687. On remand, the trial court denied the motion for a
new trial, and we affirmed the trial court's ruling. Barnett II, 344 S.W.3d at 26.
61
introduce mitigating evidence during the punishment phase rises to the level of a "'constructive
denial of the assistance of counsel altogether [so that it] is legally presumed to result in prejudice.'"
Milburn, 15 S.W.3d at 271 (quoting Strickland, 466 U.S. at 692).
Yet, the United States Supreme Court has not held that prejudice is presumed when counsel
fails to investigate available mitigating evidence under Wiggins or Strickland, but rather held only
that the reviewing court must "reweigh the evidence in aggravation against the totality of available
mitigating evidence." Wiggins, 539 U.S. at 534. In fact, the United States Supreme Court
has uniformly found constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting the accused during a
critical stage of the proceeding.
Apart from circumstances of that magnitude, however, there is generally no
basis for finding a Sixth Amendment violation unless the accused can show how
specific errors of counsel undermined the reliability of [the verdict].
Cronic, 466 U.S. at 659, nn.25, 26 (citations omitted). Likewise, the Court of Criminal Appeals
in Milburn noted, "[T]he failure to investigate, interview witnesses, and call witnesses to testify
was prejudicial expressly because witnesses existed who could and would have provided testimony
favorable to appellant's case. Had that not been established, harm would not have been
demonstrated and could not have been presumed." Milburn, 15 S.W.3d at 272 (Edelman, J.,
concurring). Consequently, notwithstanding the Courts' language in these cases, prejudice is not
presumed where counsel has failed to investigate and present available mitigating evidence; rather,
the appellant must demonstrate prejudice beyond mere conjecture or speculation.
Thus, in reviewing cases where counsel failed to investigate and present mitigating
evidence, courts have relied on certain additional factors to determine whether the defendant was
prejudiced. For example, the courts have considered whether mitigating evidence was available.
62
See id. at 270 (observing that "[t]here were no fewer than twenty witnesses available to testify on
appellant's behalf"). The courts have also considered whether the available mitigating evidence
was admissible. Id. at 271; see also Wiggins, 539 U.S. at 537 (noting that "Maryland appears to
consider this type of evidence relevant at sentencing"). Further, in Milburn, the court observed
that "trial counsel presented no evidence of mitigating factors for the jury to balance against the
aggravating factors presented by the State." Milburn, 15 S.W.3d at 270. Also, the courts have
considered the degree of aggravating evidence presented by the State at punishment. See id.
(finding that mitigating evidence "would have provided some counterweight to evidence of bad
character which was in fact received by the jury"; see also Porter v. McCollum, 558 U.S. 30, 42
(2009) (per curiam) ("Had the judge and jury been able to place Porter's life history 'on the
mitigating side of the scale,' and appropriately reduced the ballast on the aggravating side of the
scale, there is clearly a reasonable probability that the advisory jury—and the sentencing judge—
'would have struck a different balance."). Moreover, the court in Milburn noted that "the jury
would have considered [the available mitigating evidence] and possibly have been influenced by
it." Milburn, 15 S.W.3d at 271; see also Shanklin v. State, 190 S.W.3d 154, 165-66 (Tex. App.—
Houston [1st Dist.] 2005), pet. dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App.
2007). Finally, courts have considered whether and to what extent the proposed mitigating
evidence serves to explain the defendant's actions in the charged offense and to assist the jury in
determining the defendant's blameworthiness. See Porter, 558 U.S. at 41 (holding that defense
counsel's failure to present evidence at sentencing of "(1) . . . [defendant's] heroic military service
in two of the most critical—and horrific—battles of the Korean War, (2) his struggles to regain
63
normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain
abnormality, difficulty reading and writing, and limited schooling" was prejudicial because "[t]he
judge and jury at [defendant's] original sentencing heard almost nothing that would humanize
[defendant] or allow them to accurately gauge his moral culpability").
b. Summary of Factors to Consider
In summary, in deciding whether a defendant has established Strickland prejudice during
the punishment phase of non-capital cases as a result of deficient attorney performance of any
kind, the following non-exclusive list of factors are relevant: (1) whether the defendant received
a maximum sentence, (2) the disparity, if any, between the sentence imposed and the sentence(s)
requested by the respective parties, (3) the nature of the offense charged and the strength of the
evidence presented at the guilt/innocence phase of trial, (4) the egregiousness of counsel's error—
essentially, the relationship between the amount of effort and resources necessary to have
prevented the error as compared to the potential harm from that error—and (5) the defendant's
criminal history. Where the deficient performance arises from counsel's failure to investigate and
introduce mitigating evidence, the following additional factors are also relevant: (1) whether
mitigating evidence was available and, if so, whether the available mitigating evidence was
admissible, (2) the nature and degree of other mitigating evidence actually presented to the jury at
punishment, (3) the nature and degree of aggravating evidence actually presented to the jury by
the State at punishment, (4) whether and to what extent the jury might have been influenced by the
mitigating evidence, (5) whether and to what extent the proposed mitigating evidence serves to
explain the defendant's actions in the charged offense, and (6) whether and to what extent the
64
proposed mitigating evidence serves to assist the jury in determining the defendant's
blameworthiness.
c. Application of the Standard of Review
In the present case, the factors relied upon by courts in determining whether Strickland
prejudice exists during the punishment phase of a non-capital case weigh in favor of a finding of
prejudice in this case. First, Lampkin received a maximum sentence of ninety-nine years'
imprisonment in the CID. The State argued for a life sentence, whereas Lampkin's counsel did
not argue for any particular sentence but merely left it to the jury's discretion. The offense itself
was DWI, which is a non-violent offense, and although its potential for harm is as great as a violent
offense, no one was injured in this case. The State's evidence establishing guilt was strong:
Lampkin's blood alcohol concentration two hours after the arrest was over .111, Lampkin's speech
was slurred and eyes were bloodshot, four of the six indicators were positive from the HGN Test,
Lampkin admitted he had been drinking, and he rated himself a five out of ten on a hypothetical
scale of intoxication. The records substantiating Lampkin's mental status were in the possession
of the Texas Department of Criminal Justice and a mental health facility in Dallas to which
Lampkin testified he had been admitted previously. Given counsel's concerns about Lampkin's
mental status, the records could have been obtained with a subpoena or a medical authorization by
Lampkin. Thus, the amount of effort and resources necessary to obtain the evidence was minimal.
In addition, substantial mitigating evidence was available. The jail and medical records
were themselves mitigating, and the information contained therein identified other persons who
might possess additional mitigating information. The evidence was also admissible. Article 37.07
65
of the Code of Criminal Procedure allows for the introduction by either the State or the defendant
of "any matter the court deems relevant to sentencing." TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(a)(1) (West Supp. 2014). Although Lampkin's best chance for success was at the punishment
phase of the trial, counsel neither presented any mitigating evidence nor called any witnesses to
offer mitigating evidence. On the other hand, the State introduced evidence of Lampkin's
substantial criminal history.26 The available mitigating evidence was likely to influence the jury
and assist them in assessing the defendant's blameworthiness. "[E]vidence about the defendant's
background and character is relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a disadvantaged background . . . may
be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538,
26The State introduced the following evidence of Lampkin's criminal history:
(1) a June 10, 1986, judgment establishing that Lampkin was convicted of burglary and was sentenced
to six years' imprisonment;
(2) a September 10, 1986, judgment establishing that Lampkin was convicted of burglary and was
sentenced to six years' imprisonment;
(3) a June 15, 1987, judgment establishing that Lampkin was convicted of escape and was sentenced to
three years' imprisonment;
(4) a May 15, 1987, judgment establishing that Lampkin was convicted of unauthorized use of a vehicle
and was sentenced to three years' imprisonment;
(5) a February 10, 1999, judgment revoking community supervision establishing (a) that Lampkin was
convicted of DWI, third or more, for an offense that occurred on June 21, 1997, and (b) that he was sentenced
to ten years' confinement and was ordered to pay a $2,000.00 fine;
(6) a February 10, 1999, judgment establishing (a) that Lampkin was convicted of DWI, third or more,
for an offense that occurred on December 29, 1998, and (b) that he was sentenced to ten years' confinement
and was ordered to pay a $1,000.00 fine;
(7) a February 10, 1999, judgment revoking community supervision establishing (a) that Lampkin was
convicted of failing to stop and render aid after a collision that occurred on November 2, 1992, and (b) that
he was sentenced to ten years' imprisonment and was ordered to pay a $1,000.00 fine;
(8) a February 15, 1999, judgment establishing that Lampkin was convicted of DWI, was sentenced to
thirty days' confinement in a state jail facility, and was ordered to pay a $100.00 fine; and
(9) an April 12, 2006, judgment establishing that Lampkin was convicted of unlawful possession of
cocaine, was sentenced to nine months' confinement in a state jail facility, and was ordered to pay a $1,500.00
fine.
66
545 (1987) (O'Connor, J., concurring) (quoted with approval in Wiggins, 539 U.S. at 535).
Moreover, the evidence could help explain Lampkin's actions; indeed, counsel argued to the jury
that his mental status affected his ability to understand the officers' questions even though there
was no evidence in the record to substantiate that argument. The evidence recovered by appellate
counsel would have bolstered that argument. Accordingly, we find that the factors relied upon by
Texas courts evaluating prejudice in a non-capital case weigh in favor of a finding of prejudice in
this case.
d. Trial Counsel's Punishment Strategy
The jury never heard this evidence because counsel did not investigate whether Lampkin's
mental health issues—which caused him to question Lampkin's competence to stand trial—might
lead to the discovery of available mitigating evidence. Instead, counsel gave the following letter
to Lampkin while the jury was deliberating on the issue of guilt/innocence:
Mr. Esau [sic] Lampkin Via Hand Delivery
Re: Jury Deliberations and Punishment phase
Mr. Lampkin,
I have drafted this letter to give to you while the Jury is deliberating your case.
First I would like to discuss the verdict. We will stand and the Judge will read the
verdict. I would request that you not make any out burst [sic] upon the reading of
the verdict. Should the verdict be Guilty we will need to proceed today to the
Punishment phase of trial, and any negative outburst will not help us with the Jury.
Should the verdict be Not Guilty, we still have to deal with the case with the truck
and we still have to work with these Prosecutors and this Judge on that case.
Should the verdict be Guilty I will need to call you to take the stand. I will ask you
about your family and your job. I will ask you about your prior criminal
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convictions. Once I am done asking you questions the State will ask you some
questions. There are about three answers that you need to give to the State.
1. I accept responsibility for what I have done.
2. I thought that I was not intoxicated, I respect the Jury's verdict.
3. I would request an opportunity to change.
4. I paid my debt to society and I am ready to move on with my life.
Do not make any negative statements to the Jury.
If they ask you about the truck, plea the 5th.
You come off very well when you want to. The pictures of you and your pretty
wife will go a long way towards a minimal sentence from the Jury.
Counsel explained, "My strategy was, is for him to show the jury the best side of himself so that
they might take mercy upon him and not punish him based solely on a cold black-and-white
record."
Lampkin's substantial criminal history increased his need for mitigating evidence and
further demonstrates that trial counsel's failure to investigate his mental health history was
prejudicial. The mental health records, which contained the only possible mitigating evidence,
demonstrated that Lampkin had been homeless and impoverished, had diminished capacity,
suffered from psychotic delusions and major depressive disorder, had attempted suicide, and had
a long history of drug abuse. This is "the kind of troubled history . . . relevant to assessing a
defendant's moral culpability." Wiggins, 539 U.S. at 535. In addition to using Lampkin's mental
health and social health history to cast a better light on Lampkin's previous convictions, the
evidence could have softened the jury's reaction to the recording of Lampkin's rants and threats
against Dean.
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e. The Trial Court's Analysis
The trial court, however, looked at the mitigating evidence produced at the motion for a
new trial hearing and determined that no prejudice existed because the information could have
negatively affected the jury's view of Lampkin. The trial court stated,
As to not asking for these records. Even if he had had these records, while it could
be argued they may have helped and provided sympathy for Mr. Lampkin, looking
at the back of some of these records also shows -- it could be easily argued, with
all the requests and complaints that Mr. Lampkin had while in prison, that he was
a malcontent or malingerer or other things that could actually have hurt
Mr. Lampkin, had he gone -- had these records been introduced in front of a jury.
In Wiggins, the Supreme Court noted that a court may consider the potential negative effects of
available mitigating evidence in deciding whether the defendant was prejudiced by counsel's
failure to investigate:
[G]iven the strength of the available evidence, a reasonable attorney might well
have chosen to prioritize the mitigation case over the direct responsibility
challenge, particularly given that Wiggins' history contained little of the double
edge we have found to justify limited investigations in other cases.
Id. Nevertheless, in the cases where that consideration was approved, the attorney knew about the
evidence, made an initial investigation into the information, and then made a strategic decision not
to investigate further or use the information at trial. See Burger v. Kemp, 483 U.S. 776, 794-95
(1987) ("It appears that [counsel] did interview all potential witnesses who had been called to his
attention and that there was a reasonable basis for his strategic decision that an explanation of
petitioner's history would not have minimized the risk of the death penalty. Having made this
judgment, he reasonably determined that he need not undertake further investigation to locate
witnesses who would make statements about Burger's past"); see also Darden v. Wainwright, 477
69
U.S. 168, 186 (1986) (where Supreme Court approved defense counsel's decision not to use
psychiatric report obtained on defendant because using defense's psychiatric evidence would
invite rebuttal by State, which had a psychiatric report indicating petitioner "very well could have
committed the crime; that he was . . . sociopathic type personality; that he would act entirely on
impulse with no premeditation from the standpoint of planning").
By contrast, in this case, counsel did not know about the available mitigating evidence
because he did not investigate the matter. Therefore, he did not make a strategic decision not to
investigate further or not to use it at trial. Utilizing the potential harm analysis under these
circumstances would not amount to a deferral to the considered strategic decisions of counsel;
rather, it would be making a strategic decision for counsel based on information neither obtained
nor considered by counsel. Consequently, the potential harm analysis authorized in Wiggins is not
applicable here.
"The sentencing process consists of weighing mitigating and aggravating factors, and
making adjustments in the severity of the sentence consistent with this calculus." Milburn, 15
S.W.3d at 270. Because trial counsel performed no investigation into any possible mental health
or other mitigating factors, he presented no mitigating evidence for the jury to balance against the
aggravating factors presented by the State. Instead, he encouraged Lampkin to testify at
punishment, a choice he may not have made had mitigating evidence been properly uncovered.
We find that absent counsel's unprofessional error, Lampkin's mental health records would have
been available for the jury to review, and these records could have shed a different light on
Lampkin's prior convictions. Thus, we conclude beyond speculation or conjecture that a
70
reasonable probability exists that Lampkin's sentence would have been less severe had the
mitigating evidence been presented and that the trial court erred in finding otherwise. See
Freeman, 167 S.W.3d at 121. Accordingly, we sustain this point of error.27
V. Conclusion
We affirm the trial court's judgment on defendant's guilt, but reverse the trial court's
judgment and remand the case to the trial court for a new trial on punishment only.28
Ralph K. Burgess
Justice
Date Submitted: April 1, 2015
Date Decided: August 11, 2015
Publish
27Because our decision that Lampkin is entitled to a new trial on punishment is dispositive of the remaining grounds
of ineffective assistance, we will not address them.
28During oral argument, Lampkin also noted that the trial court's judgment ordered Lampkin to pay attorney fees for
his court-appointed counsel. Because Lampkin will receive a new trial on punishment, we need not address whether
this record demonstrated that Lampkin had the ability to pay the assessed attorney fees.
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APPENDIX
Some of the observations gathered from Lampkin's voluminous mental health records
introduced at the hearing on Lampkin's motion for a new trial are listed below in chronological
order.
• 5/30/07 Metrocare TIMA Note: Lampkin "denies voices no paranoia. . . . No
psych. treatment before."
• 3/3/08 Texas Department of Criminal Justice (TDCJ) Diagnostic Screening
Interview: Lampkin reported that he had been treated by MHMR for anxiety due
to stress and had been prescribed Trazodone by a psychiatrist for mental and
emotional problems. According to this document, Lampkin reported that he
completed the ninth grade and said he was never in special education. However,
the interviewer's notes said that Lampkin originally identified the date as March of
2004 instead of March 2008. Thus, Lampkin was scheduled for a clinical interview.
• 3/28/2008 Correctional Managed Care (CMC) Intake History and Health
Screening: This document states that Lampkin reported a previous suicide attempt,
but that he had no diagnosed mental illness. The document suggests that Lampkin
had normal speech, appropriate attitude, and did not see or hear things.
• 4/10/2008 CMC Outpatient Mental Health Services Report: This document
states that Lampkin was referred for a Mental Health Evaluation on 4/10/2008
because he scored a 66 on the Beta I.Q. test. According to this report, Lampkin's
evaluation said he was "oriented in all spheres," was cooperative, had normal rate
and modulation of speech, and had no psychotic indices. However, Lampkin also
had poor insight and judgment, weak memory, and in terms of intelligence was
"[w]ell below average." The report said that "most likely he is mentally retarded"
and that "[h]e only scored a 1 on the ABST, and he was deficient in basic skills like
telling time and counting change." The report, signed electronically signed by
Douglas J. Duncan, MS, LPC, and Mary K. Whitley, MA, LPA, RP, listed that the
diagnostic impression was "Mild Mental Retardation (Probable)." Lampkin was
transferred to MROP for further evaluation.
• 5/6/2008: Lampkin pens a grievance complaining that he has "not been able to
receive adaqute [sic] medical care [because] the medical doctors officials [have
been] deliberately indifferent" to his arthritic condition.
• 5/7/2008 CMC Clinic Notes: This nursing note suggests that Lampkin was
exaggerating symptoms of joint pain in order to obtain a transfer from a top bunk
to a bottom bunk. The note said, "IT IS VERY CLEAR HE IS HERE FOR A
BOTTOM BUNK ONLY. OFFENDER SITS AND WALKS WITH EASE."
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• 7/22/08 TDCJ Clinic Note: This note establishes that Lampkin was again seeking
a top bunk assignment. The note states that Lampkin is "more worried about being
on the top bunk than anything else."
• 11/26/2008 Incoming MROP Mental Health Screening: This screening states,
"Client reports receiving treatment for anxiety from MHMR in Dallas in 2007.
Client reports receiving Trazadone. Client was not receiving psych. meds in
county. No MH history from prior incarcerations." During this screening, Lampkin
reported that he attended school until ninth grade.
• 12/8/08 CMC MROP Clinic Note: This note states, "Client reported he was
wanting in school and wrote a grievance due to no[t] being placed in one. The
DMR process was explained to him and he was informed that once he is admitted
into the MROP he would be placed in educational class. It was also explained that
that would be based on his Psychological testing that will take place in about 3
weeks."
• 12/8/2008 CMC MROP Clinic Note: This note documents a report by Lampkin
claiming that he has dyslexia and cannot spell very well.
• 12/15/08 CMC MROP Clinic Note: This note states that Lampkin "is wanting to
get into the program here so he can go to school." Lampkin stated, "I want to better
myself. I try on test but I blank out." According to the note, Lampkin "was
informed that he just needs to be honest and do the best he can when he takes his
psychological test."
• 12/18/2008 Mental Health Services MROP Determination of Mental
Retardation: The evaluation states that Lampkin was referred for a
Comprehensive Diagnosis and Evaluation to "determine [Lampkin's] intellectual
and adaptive functioning," "determine if he meets criteria for mental retardation,
assess any needs, [] make recommendations to address identified needs," and to
"determine eligibility for the Mentally Retarded Offender Program (MROP)."
According to the evaluation, Lampkin reported, (1) that the "[l]ast grade completed
was 7th grade due to 'getting into trouble all the time . . . doing drugs,' (2) that he
was in special education classes and "'never understood why [his] brother (twin)
was smarter than [him]," (3) that he had been in and out of jail all of his life, (4)
that he never lived alone or had a credit card, (5) that he had not held a job for
longer than two months, and (6) that he had an "severe substance abuse history."
Although he had never been in a state hospital and was not currently on psychiatric
medications, Lampkin "report[ed] seeing a psychiatrist in the past at MHMR in
Lancaster." The evaluation continued, "Logical thought process and adequate
judgment and insight are displayed. . . . [Lampkin] begins assessment by
exaggerating symptoms of mental retardation but when confronted begins
displaying an adequate amount of effort to answer questions truthfully. [Lampkin]
scored a 4/15 on the ABST and a 73 on the Toni-3 (form B). It appears most of
[Lampkin] 's deficits are in activities of daily living due to severe substance abuse
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history and not from psychiatric issues." The evaluation concluded, "Based on the
mental status and test results, the [Lampkin's] intellectual level is concluded to be
in the Borderline Range. . . . Considering current evaluation, it is recommended that
this offender be accepted in the MRPO, however, more information/investigation
is needed to determine appropriateness."
• 1/12/2009 CMC MROP Clinic Note: This note stated, "[Lampkin] is able to
discuss the policies of the unit and possible alternatives that may also be beneficial.
[H]e is fairly concrete but is able to plan and predict future outcomes. He is already
aware of his resources and how to use them. He comes with prepared questions to
discuss with his worker for feasibility. . . . overall functioning appears to be good
with only little assistance related to release."
• 2/9/9 CMC MROP Clinic Note: This note stated, "review of records indicates
this inmate has (by his own self report) a history of using highly addictive drugs
daily in the free world. He has had mental health treatment prior to his
incarceration. He displays symptoms that may be consistent with long term
substance use/abuse, mental health symptoms, intellectual problems, antisocial
personality disorder."
• 3/9/2009 CMC MROP Clinic Note: This note stated that Lampkin had good
memory, spoke clearly and logically, and was task oriented. However, in the
"intellectual functioning" category, Lampkin "need[ed] reexplaining and
reeducation" and had "no change."
• 3/23/2009 Correctional Managed Care MROP Mental Health Services
Individual Habilitation Plan: This report indicated that Lampkin had borderline
intellectual functioning, but no mental health history of psychiatric treatment,
although he reported "MH treatment in Lancaster." According to the plan, the staff
was to observe Lampkin's interactions, review his intellectual functioning, and
monitor him for appropriateness. The plan indicated that Lampkin requested to go
to school. Noting his long history of substance abuse, the plan stated, "DMR
suggests that his deficits are related to substance abuse damage," and concluded
with the note, "will monitor further for information to support or eliminate need for
unit services."
• 4/5/2009 CMC MROP Clinic Note: This note says "no new or significant
problems [were] reported and none [were] observed." The report is that Lampkin's
mental health is stable.
• 6/17/2009 CMC MROP Clinic Note: This report stated that Lampkin had no
psychological symptoms or suicidal thoughts and exhibited appropriate mood. The
report also stated that Lampkin had "Borderline Intellectual Functioning," but was
"Functioning well."
• 6/29/2009 CMC MROP Clinic Note: This note also stated that Lampkin had
"Borderline Intellectual Functioning," but was "Functioning well."
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• 7/7/09 Medical and Mental Health Transfer Screening: The screening classified
Lampkin as oriented and alert.
• 7/21/2009 Metrocare MH Case Management Note: According to this note,
Lampkin "completed the 8th grade only," and had "mild MR per prison records."
• 9/28/09 Metrocare MH Progress Note: This note stated that Lampkin "needs
education on his mental illness and understanding that the voices telling hi[m] to
do drugs are a part of his mental illness." It added that Lampkin "wants to transfer
to The Bridge."
• 10/28/09 and 11/11/09 MetroCare MH Med Check Notes: Both notes reported
that Lampkin was adequately groomed, cooperative, had "No Sign of Psychotic
Features" or delusions, and exhibited normal speech. The notes also stated that
Lampkin was oriented, and displayed fair insight, fair judgment, and fair impulse
control, but that his memory was not intact and his attention was impaired.
• 12/15/09 Metrocare MH Nursing Note: This note reported that Lampkin hears
voices.
• 12/15/09 Metrocare MH Med Check Note: According to this note, Lampkin said,
"I think people talk about me. [My] [v]oices say [I] can't and some say [I] can do
better for [my]self. Some say it is not worth living. Jump over the bridge." The
note concluded that Lampkin was moderately depressed, that his memory was not
intact, and that he heard "voices to kill himself."
• 1/25/10 Metrocare MH Med Check Note: This note demonstrated that Lampkin
is taking medication for paranoia.
• 1/25/10 Metrocare MH Progress Note: This note stated that Lampkin has
"paranoia and [is] hearing voices."
• 1/30/10 Metrocare MH Progress Note: According to this note, Lampkin
"report[ed] that his MI started upon his last admittal [sic] into prison in 2009." The
note also points out that Lampkin "had trouble filling out [a] form," which showed
that he may have "some cognitive limitation."
• 2/5/10 Metrocare MH Med Check Note: According to this note, Lampkin was
"[r]eport[ing] psychosis." The conclusion that was Lampkin had "MDD with
psychotic features."
• 2/13/10 Metrocare MH Progress Note: This note said that Lampkin "has been
diagnosed with narrow disc space, degenerative discs, osteoarthritis, and vertebral
spurring in the lumbar region."
• 2/20/10 Metrocare MH Progress Note: This note said that Lampkin was "being
extremely compliant and participatory" even though he "is somewhat simple in his
cognition d/t a learning disability."
• 4/13/10 Metrocare MH Med Check Note: This note said that Lampkin was
paranoid and reported psychosis.
• 6/8/10 Metrocare MH Med Check Note: The note stated that Lampkin is taking
medicine for paranoia.
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• 6/08/10 Dallas Metro Care NorthStar Outpatient Authorization Tools and
Treatment Plan: This plan establishes that Lampkin was diagnosed with a major
depressive disorder with psychotic features, and that he had a history of alcohol and
cocaine. The note continued, "client reports a nearly-complete remission of sxs
since adhering to medication, group, and individual Ml tx. Sleeps well, reports
good concentration and social desire, and no significant manic or schizoid sxs."
According to the note, Lampkin had "1 to 3 psychiatric-related hospitalizations in
the past two years. . . . [and] was in the mental ward of [the] prison ("Hodge Unit")
in Rusk, TX in 2009."
• 6/15/10 Metrocare MH Social Security Evaluation: The evaluation reported that
Lampkin was paranoid, and suffered from mood disturbance, retardation,
confusion, delusions, anger, and mental impairments.
• 7/7/10 Metrocare MH Progress Note: This suggested that Lampkin appealed the
denial of social security disability benefits. It stated,
We arrived on time and spent time in prep with the lawyer,
who advised [Lampkin] on how to phrase his answers so the judge
will best understand them. [Lampkin] was very anxious before the
hearing. I stayed in the waiting room while the hearing took place.
When they came out, [Lampkin] looked very disappointed.
We debriefed with the lawyer. According to the lawyer, the judge
started by asking questions about [Lampkin]'s criminal history,
which got him very agitated and confused. She then moved on to
pick at one line out of a medical record where a doctor performing
a mental status exam found that [Lampkin] couldn't tell the
difference between a floor and a wall. The judge said that meant
that [Lampkin] is faking his disability, since he can clearly tell the
difference between a floor and a wall. [Lampkin] got upset that the
judge wasn't looking at his medical records, and the lawyer even
spoke out of turn by presenting evidence for an MR diagnosis when
she wasn't asked for it. The judge ordered an IQ test to be performed
by a SSA doc, and then the hearing can continue. . . . limited
cognition does not display in may situations but he is easily
frustrated and confused by direct questions.
• 8/3/2010 Metrocare MH Med Check Note: This note said that Lampkin
had "MDD with psychotic features v. schizophrenia and limited intell fx."
This note said that Lampkin had an August 4, 2010, "appointment with
Dr. Brix tomorrow for a mental evaluation for SSA" to address
"undiagnosed MR."29
29Dr.Brix' mental evaluation was not included in the appellate record. In fact, there does not appear to be any record
of Lampkin's mental status after this date.
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