Lampkin v. State (470 S.W.3d 876, 2015)

OPINION

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 .11-1 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, (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 básed 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 Sheriffs 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, Lamp-kin 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.

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. Cas-sin’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 DWT 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.” Thé 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-ounee beers.” According to Dean, Lampkin exhibited four out of six cues during the Horizontal-Gaze Nystag-mus 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.

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 Réview

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, Lamp-kin 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. 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 Lamp-kin 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 Lamp-kin 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

“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] admis-' sible 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 retrogradé extrapolation” in Mata’s trial.’ Similarly, both Bums 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 (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 Míreles 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.

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.Sd 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 qúestions 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 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,-86 S.Ct. 1602; see Coffey v. State, 435 S.W.3d 834, 841 (Tex.App.-Texarkana 2014, pet. ref d). “ ‘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.-Tex-arkana 2014, no pet.) (footnotes omitted)); see Miranda, 384 U.S. at 444, 86 S.Ct. 1602; 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 statement^ -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, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (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;

(4) all voices on the recording aré 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.

TexCode 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 Cas-sin’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, 99 S.Ct. 1755, 60 L.Ed.2d 286 (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, 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, 106 S.Ct. 1135, 89 L.Ed.2d 410 (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, 106 S.Ct. 1135 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (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. 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 Cas-sin’s testimony, we find that the trial court did not abuse its discretion (1) in determining that Lampkin 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. 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 samé 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.

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 arid 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), reajfd 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. refd). 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 fact or facts.” Madden, 242 S.W.3d at 511. Here, the jury heard testimony by Cassin and Dean that Lamp-kin waived the rights enumerated in Cas-sin’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. 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. Evid. 404(b). In his fifth point of error on appeal, Lamp-kin 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.

2. The Argument on Appeal Does Not Comport With the Objection at Trial

On appeal, Lampkin argues that the trial court’s ruling was érroneous 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,

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.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. “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).

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, 104 S.Ct. 2052. “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, 104 S.Ct. 2052.... It is not sufficient for Applicant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052.... 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, 104 S.Ct. 2052....

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 U.S. 362, 382, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (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 prevailing professional norms,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 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.

C. Application

I. 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. “[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, 86 S.Ct. 1826, 16 L.Ed.2d-908 (1966)). Thus, “there is a presumption that veni-puncture 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, 86 S.Ct. 1826). “Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness 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 was1 -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 Lampkin was actually injured and no description of whether Lamp-kin 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 árrest on the ground that no predicate was laid to establish them 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.” Lemons v. State, 426 S.W.3d 267, 271 (Tex.App.-Texarkana 2013, pet. refd). 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. 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. JüR.3d 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 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.

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 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. refd). “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. refd) (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.

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.

IV. Lampkin’s Ineffective Assistance Claims Based oh Counsel’s Failure to Investigate and Litigate Lamp-kin’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 factfin-der’s choice between them cannot be clearly erroneous.”

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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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.

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 qdestion 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 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 Lamp-kin 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 Lamp-kin 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, 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 Hearing

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.”

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 Lamp-kin’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.’ ” “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,

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, 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.”

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 lev