Lampkin v. State

Decision Date11 August 2015
Docket NumberNo. 06–14–00024–CR,06–14–00024–CR
Citation470 S.W.3d 876
PartiesEsaw Lampkin, Appellant v. The State of Texas, Appellee
CourtTexas Court of Appeals

Lew Dunn, Law Offices of Lew Dunn, Longview, TX, for appellant.

L. Charles Van Cleef, Longview, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.


Opinion by Justice Burgess

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.

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 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 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.3

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 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, 99 S.Ct. 2781 ).

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 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 find 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.

1. Standard of Review


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