                          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




                                           -2-
            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 -




                                                                      -3-
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


                                            -4-
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
                                               -5-
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


                                             -6-
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


                                            -7-
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,

                                            -8-
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.
                                                        -9-
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.




                                           - 10 -
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.




                                            - 11 -
         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




- 12 -
      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




                                         - 13 -
VI.   APPENDIX




                 - 14 -
