PD-1333-15
CASUE NO. ____________
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
THE STATE OF TEXAS,
PETITIONER
VS.
ESAW LAMPKIN,
RESPONDENT
Petition in Cause No. 42.897-B
From the 124th Judicial District Court of
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
October 9, 2015 Longview, Texas 75606-2432
903-248-8244 Telephone
903-248-8249 Facsimile
charles@vancleef.pro
COUNSEL FOR PETITIONER
ORAL ARGUMENT REQUESTED
I. IDENTITY OF JUDGES, PARTIES AND COUNSEL
Hon. Alfonso Charles, Trial Court Judge
124th Judicial District Court in and for Gregg County, Texas
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”) 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 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...............................................................................................- 3 -
IV. STATEMENT REGARDING ORAL ARGUMENT .........................................................- 4 -
I. STATEMENT OF THE CASE ...........................................................................................- 4 -
I. STATEMENT OF PROCEDURAL HISTORY .................................................................- 4 -
II. GROUNDS FOR REVIEW.................................................................................................- 5 -
III. Argument .............................................................................................................................- 5 -
A. The Burden of Proof and Correct Standard in Habeas Corpus Claims On Appeal
Regarding The Discovery And Presentation Of Mitigating Evidence....................................- 5 -
1) Burden on the Wrong Party - Reasonableness .........................................................................- 8 -
2) Trial Court’s Discretion Ignored ..............................................................................................- 10 -
IV. PRAYER FOR RELIEF ....................................................................................................- 11 -
V. CERTIFICATE OF SERVICE..........................................................................................- 13 -
VI. APPENDIX .......................................................................................................................- 14 -
III. TABLE OF AUTHORITIES
Cases
Bone v. State, 77 S.W.3d 828 (Tex.Crim.App.2002) .................................................................- 8 -
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App.2005)......................................................- 8 -
Menefield v. State, 363 S.W.3d 591 (Tex.Crim.App.2012) .............................................. - 8 -, - 9 -
Milburn v. State, 15 S.W.3d 267 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd)................- 9 -
Porter v. McCollum, 558 U.S. 30 (2009)..................................................................................- 10 -
Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005), pet. dism'd,
improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007)........................................- 10 -
Strickland v. Washington, 466 U.S. 668 (1984) .................................................... - 8 -, - 9 -, - 10 -
Wiggins v. Smith, 539 U.S. 510 (2003)............................................................................. - 7 -, - 9 -
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TO THE HONORABLE JUSTICES OF SAID COURT:
Comes now the STATE OF TEXAS, Petitioner herein, and files this, its Petition
for Discretionary Review. In support thereof, Petitioner shows the Court the following:
IV. STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, Petitioner requests oral argument. Argument
would assist the Court because resolution of the ground for review depends upon a
detailed exploration of the facts of this case and the law used by the Court of Appeals in
its decision. Further, oral argument would provide this Court with an opportunity to
question the parties regarding their positions.
I. STATEMENT OF THE CASE
The respondent was charged with driving while intoxicated, a third or more
offense, enhanced by two prior felonies. CR 5 (Indictment). The respondent was found
guilty by a jury and, at the conclusion of the punishment phase, the jury assessed a
sentence of 99 years. See CR 85-86 (Judgment). A hearing was held on a motion for new
trial, but relief was denied. CR 448-449. Respondent appealed, presenting 14 issues. On
August 11, 2015, the Sixth Court of Appeals issued an Opinion denying all but one of the
issues. Appendix (Opinion). The respondent filed a motion for rehearing, which was
denied. At present, the decision is published and the case has been ordered for remand
and resentencing based on a single point of ineffective assistance of counsel.
I. STATEMENT OF PROCEDURAL HISTORY
On August 11, 2015 the Sixth Court of Appeals issued its published Opinion and
Judgment affirming the trial court in all but one respect. Appendix. The respondent filed
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a motion for rehearing on August 21, 2015. That motion was overruled on August 25,
2015.
II. GROUNDS FOR REVIEW
Petitioner respectfully contends that the Sixth Court of Appeals erred in its
resolution of the appeal in the following respects and, in its published decision, has
created new rules for the evaluation of habeas corpus claims of ineffective assistance of
counsel that conflict with established legal principles and the decisions of this Court:
1. The Court of Appeals applied the reverse of the well-settled Strickland burdens
of production and proof applicable in habeas corpus claims, expressly basing
its decision on the absence of evidence that an attorney performed specified
acts of investigation—evidence which the claimant, not the State, must
present—then expressly refused to weigh undiscovered evidence in
determining whether prejudice occurred.
2. Further, the Court of Appeals failed to use the correct standard of review
(abuse of discretion) in evaluating the trial court’s findings and conclusions
from a hearing on the respondent’s motion for new trial and, in fact, expressly
gave no credence whatsoever to the trial judge’s findings and conclusions
concerning the claim of ineffective assistance of counsel.
III. ARGUMENT
A. THE BURDEN OF PROOF AND CORRECT STANDARD IN HABEAS CORPUS
CLAIMS ON APPEAL REGARDING THE DISCOVERY AND PRESENTATION OF
MITIGATING EVIDENCE
One of the points raised in the respondent’s motion for new trial was that trial
counsel was ineffective for failing to request a competency evaluation and hearing due to
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alleged concerns about the respondent’s mental stability and competence. Both the trial
court and Court of Appeals determined that trial counsel was not ineffective in this
regard. This argument blossomed into a further argument that trial counsel failed to
present mitigating evidence in the form of mental health and other records from
Respondent’s prior incarceration(s), regardless of trial competency. In essence, the Court
of Appeals concluded that if there was any concern over competency then, even if it is
resolved and the case continues, trial counsel must seek out possible evidence of odd
behavior or diagnosis to use in mitigation and, further, that it makes no matter whether
that evidence is a two-edged sword if, in fact, counsel failed to discover it.
During the hearing on the motion for new trial, trial counsel was examined
regarding several salient factors for determining a defendant’s competency. Respondent
had new counsel who obtained the respondent’s prison records and questioned numerous
witnesses, including several attorneys; he also presented an affidavit of the respondent.
The prison records indicated the respondent had a low IQ, had been evaluated for
mental health services and seen a psychiatrist, and other, related observations over a
several year period. The records also indicated malingering, faking a disability, and
noncompliance. Those records ended in 2010. See Appendix at Appendix (Court’s
Summary of Records). 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.
The trial court determined that trial counsel was not ineffective because the
records, even if trial counsel had them, could both be argued to provide sympathy for the
respondent but could also show that he was a malcontent or malingerer. The Court of
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Appeals disregarded these findings and conclusions on the basis that since trial counsel
did not obtain the records, he could not have made a strategic decision not to present
them. Appendix at 70. Having observed that Wiggins v. Smith, 539 U.S. 510 (2003)
required weighing the negative impact of mitigation evidence (as the trial court did) and
not to presume prejudice, the Court of Appeals did just that. Relying on a mélange of
cases, the Court of Appeals concluded that weighing the positive and negative impact of
the undiscovered evidence is error. Appendix at 69-70. The Court of Appeals stated “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.” Appendix at 70. Then, without reference to the
trial court’s findings regarding the potential negative impact of the records, concluded in
the very next sentence of the Opinion, “beyond speculation or conjecture that a
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.”
Appendix at 70-71.
In sum, the Court of Appeals’ decision establishes a new and conflicting rule
regarding the evaluation of ineffective assistance of counsel on appeal to the effect that
when an attorney fails to obtain evidence, the character and totality of the evidence is
essentially unimportant if any element of the evidence might have been used in
mitigation; if true, this case would be cited as an exception to Wiggins. Further, as
mentioned above, the Court of Appeals completely disregarded the trial court’s findings
and conclusions based on this new rule, and therefore abandoned the abuse of discretion
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standard except insofar as it determined that the trial court used the wrong legal standard.
In effect, the Court of Appeals determined that the trial court did abuse its discretion by
weighing the totality of the circumstances. The Court of Appeals made no use of the trial
court’s factual findings and, to the contrary, contradicted them without explanation.
1) BURDEN ON THE WRONG PARTY - REASONABLENESS
In evaluating trial counsel’s alleged ineffectiveness in failing to discover and
present mitigating evidence of mental health history, the Court of Appeals concluded that
“there is no evidence that counsel performed any investigation into Lampkin’s mental
health history.” Appendix at 52. The Court of Appeals observed that “there is no
evidence that trial counsel hired an investigator or attempted to speak to any of
Lampkin’s other relatives,” that trial counsel attempted to speak with the respondent’s
wife or other relatives, or inquired of jail personnel whether the respondent was receiving
or had any type of mental health services in the past. Appendix at 52. Yet, under
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the burden is on the defendant;
the correct question was whether there was evidence that counsel did not do those things.
Claims of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate their merit. Menefield v. State, 363 S.W.3d 591, 592
(Tex.Crim.App.2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).
A criminal defendant has the burden of showing by a preponderance of the evidence that
his attorney failed to provide 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 ineffective assistance of counsel. See Goodspeed,
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187 S.W dear .3d at 392. “An ineffective-assistance claim must be firmly founded in the
record and the record must affirmatively demonstrate the meritorious nature of the
claim.” Menefield, 363 S.W.3d at 592.
Here, the Court of Appeals has posed several question that are not answered by the
record, to wit, whether trial counsel hired an investigator, attempted to speak to the
respondent’s relatives, wife, or jailers in order to discover facts that would have led
counsel to request the respondent’s TDCJ records. Appendix at 52-53.1 These specific
instances of “lack of evidence” are the factors that expressly caused the Court of Appeals
to conclude that trial counsel’s actions were unreasonable. Yet, as noted above, there
was a hearing on Respondent’s motion for new trial and trial counsel, among several
other witnesses, was questioned. Respondent did not ask these questions, nor did he
present any relatives, Respondent’s wife, or any jailer. Respondent, not Petitioner, has
the burden in these matters. In analyzing Respondent’s claims in this manner, the Court
of Appeals shifted the entire burden set forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) and its progeny.
Further, in regard to prejudice, the Court of Appeals observed that prejudice is not
presumed when counsel fails to investigate and present available mitigating evidence,
Appendix at 62, then considered several factors concerning 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.
Smith, 539 U.S. 510, 537 (2003), Porter v. McCollum, 558 U.S. 30, 42 (2009) (per
1
This lack of evidence morphed into a conclusion that trial counsel did not, in fact, contact Respondent’s wife or
hire an investigator in the following page of discussion, Appendix at 53.
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curiam), 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).
However, the Court of Appeals ignores the fact that, as it previously observed in the
Opinion, trial counsel intended for the respondent’s testimony to be mitigating
(unfortunately, his testimony arguably did not go well) and does not consider the
aggravating nature of the evidence—something that was expressly considered by the trial
judge. Thus, the Court of Appeals has presented a new rule that undiscovered evidence
which tends to be both aggravating and mitigating need only analyzed for potential
mitigating value, and not in its totality—which, it bears repeating, is what the trial court
did. This is in contravention to the legal standard which requires, in this context, that the
Court of Appeals determine whether there is “a reasonable probability that the result of
the proceeding would have been different.” See Strickland, 466 U.S. at 687-88.
2) TRIAL COURT’S DISCRETION IGNORED
In the Court of Appeals’ analysis, directly above, the Court of Appeals gives
absolutely no deference to the trial court’s findings and conclusions, despite the fact that
these very arguments were presented to the trial court at the hearing on the respondent’s
motion for new trial. The trial court concluded:
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.
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Appendix at 69. There is no mention or analysis of the abuse of discretion standard in
this portion of the appellate Opinion; the Court of Appeals held that “the potential harm
analysis under these circumstances would not amount to a deferral to the considered
strategic decisions of counsel.” The Court ignored the trial court’s findings regarding
aggravating evidence and application of the Strickland standard, as well as the conclusion
that counsel was not ineffective. The Court of Appeals concluded that there cannot be a
strategic decision where the evidence was not discovered, yet the decision not to obtain
the evidence at all was not correctly determined to be unreasonable, nor was the failure to
present the evidence shown to be prejudicial. Appendix at 70.
The Court of Appeals’ holding presents a new rule; reasonable extrapolation of
that rule would be that when counsel fails to discover and present evidence that may have
any hint of mitigation—regardless of whether the evidence would also be aggravating—
counsel is per se ineffective. The undersigned finds no authority for this new rule, and
none is expressly cited by the Court of Appeals. Without a requirement to show harm in
a totality of evidence, it is not possible to reconcile the Court of Appeals’ analysis with
Strickland and its progeny. To the contrary, the Court of Appeals should have given
correct deference to the findings, and the conclusion, of the trial court.
IV. PRAYER FOR RELIEF
In light of the foregoing, Petitioner respectfully requests that the 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.
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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
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V. CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded by email/e-filing to:
Hough-Lewis “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 Friday, October 9, 2015.
/s/ L. Charles van Cleef
_________________________________
L. Charles van Cleef
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VI. APPENDIX
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Lampkin, Esaw
Combined Opinion