Lamb, Cook Linda v. The State of Texas--Appeal from 12th District Court of Walker County

Affirmed and Memorandum Opinion filed July 28, 2005

Affirmed and Memorandum Opinion filed July 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00039-CR

NO. 14-04-00040-CR

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LINDA COOK LAMB, Appellant

V.

THE STATE OF TEXAS, Appellee

______________________________________________

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause Nos. 21,443 & 21,444

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M E M O R A N D U M O P I N I O N

Linda Lamb appeals her convictions for aggravated robbery and aggravated assault[1] on the grounds that: (1) her guilty plea was involuntary; and (2) she was denied effective assistance of counsel. We affirm.

Although appellant=s plea papers contain a waiver of all of her rights to appeal, the trial court entered a certification (the Acertification@) giving her permission to appeal Aregarding competency, sanity, and mitigation of punishment due to mental and psychological, and etc. issues, if any.@ Appellant then filed a notice of appeal stating that it was Abased on the Court=s permission to appeal the issues relating to ineffective assistance of counsel relating to her mental health as raised in her Motion for New Trial, and as may be evident from the record.@

Because appellant=s first issue, challenging the voluntariness of her plea, is not within the scope of the issues the trial court gave her permission to appeal,[2] any appeal of that issue was waived by appellant=s written waiver of her right to appeal.[3] Therefore, we are without jurisdiction to address that issue, and it is dismissed.

Moving to appellant=s second issue, it is unclear whether her claim of ineffective assistance is within the meaning of the language of the certification describing the issues for which permission to appeal was given. Therefore, in an abundance of caution, we will address that issue. It contends that appellant=s trial counsel was ineffective in failing to investigate and present expert testimony to seek mitigation of punishment based on: (1) appellant=s temporary insanity by reason of voluntary intoxication[4] (being high on cocaine); and (2) appellant=s bipolar disorder and failure to take her medications combining to diminish her mental capacity at the time of the offense.[5]

To prevail on a claim of ineffective assistance of counsel, appellant must show that: (1) counsel=s performance was below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for this deficient performance, the result of the proceeding would have been different. Wiggins v. Smith, 123 S. Ct. 2527, 2535, 2542 (2003). Although strategic decisions made by counsel after thorough investigation are unchallengeable, strategic decisions made after less than complete investigation are reasonable only to the extent that the known evidence would not have led a reasonable attorney to investigate further. Id. at 2535, 2538. Prejudice is shown where the totality of mitigating evidence (including that which the incomplete investigation did not reveal), when weighed against the evidence in aggravation of punishment, shows a reasonable probability that a different sentence would have resulted if the additional mitigating evidence had been presented. Id. at 2542-43.

In this case, the pre-sentence investigation report (APSI@) clearly reflects appellant=s lengthy history of psychological problems and substance abuse, including her admission that, on the day of the offense, she had smoked about $100 worth of crack cocaine and needed money to purchase more crack. The likelihood that these conditions contributed negatively to appellant=s mental state in committing the offense is quite apparent from the record. In addition to the foregoing factors, the PSI reflects a 15-year criminal history and an ongoing failure by appellant to effectively manage her mental health and substance abuse problems.

The trial court refrained from imposing the maximum punishment of life imprisonment, sentencing appellant to 30 years confinement for which she will be eligible for parole after serving 15 years. At the motion for new trial hearing, appellant=s expert testimony added little besides the further effect of appellant=s failure to take medication. Despite hearing this testimony, the trial court did not see fit to even reconsider, let alone change, the punishment it had originally imposed.

Based on the totality of these circumstances, we find no basis to conclude either that: (1) any decision by defense counsel not to investigate using expert assistance for mitigation of punishment was unreasonable; or (2) there is a reasonable probability that a different sentencing decision would have resulted if the expert testimony had been presented at the punishment phase of trial. Accordingly, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 28, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant pled guilty to both offenses, and the trial court imposed concurrent sentences of 30 years imprisonment for each offense.

[2] In addition, page 17 of appellant=s brief expressly acknowledges that AAppellant is not challenging the validity of her guilty plea on grounds of competence or sanity at the time of the offense.@

[3] See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (noting that an appellant who has executed a waiver of appeal in a non-negotiated guilty plea cannot appeal without permission of the trial court; and, conversely, that a trial court=s permission to appeal overrides a waiver of appeal).

[4] See Tex. Pen. Code Ann. ' 8.04(b) (Vernon 2003) (AEvidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.@).

[5] See Ake v. Okla., 470 U.S. 68 (1985) (holding that, where a defendant demonstrates to the trial court that his sanity at the time of the offense is to be a significant factor at trial, the State must assure the defendant access to a competent psychiatrist to assist in the defense).