                                  NO. 07-10-0378-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JUNE 10, 2011


                                BILLY DON MENEFIELD,

                                                                  Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                  Appellee
                           ___________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

            NO. 4375; HONORABLE STEVEN RAY EMMERT, PRESIDING


                                        Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Billy Don Menefield appeals his conviction for possessing a controlled substance

in an amount of less than one gram by contending he received ineffective assistance of

counsel.   Specifically, he complains of his trial counsel 1) failing to object to the

admission of the laboratory’s drug report, 2) failing to object to inadmissible punishment

enhancement evidence, and 3) introducing evidence of extraneous offenses during the

guilt/innocence phase. We consider only the first ground and reverse the judgment.
         We review claims of ineffective assistance under the standard discussed in

Strickland v. Washington, 466 U.S. 668, 687-95, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The defendant has the burden of proving not only that counsel’s performance

was deficient but that he suffered prejudice as a result of it. Cannon v. State, 252

S.W.3d 342, 348-49 (Tex. Crim. App. 2008). In making our review, we presume that

counsel had legitimate strategies for his actions, Mata v. State, 226 S.W.3d 425, 431

(Tex. Crim. App. 2007), and that presumption cannot generally be overcome absent

evidence in the record of the attorney’s reasons for his conduct. Ex parte Niswanger,

No. AP-76,302, 2011 Tex. Crim. App. LEXIS 390, at *9-10 (Tex. Crim. App. March 16,

2011).     But, such evidence is not required when no reasonable trial strategy is

fathomable. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (stating that

when there is no reasonable trial strategy that can justify trial conduct, counsel has

been ineffective as a matter of law regardless of whether the record shows the reasons

for his conduct). Such is the case here.

         Admission of Laboratory Report

         Appellant argues that his counsel should have objected to the admission of the

laboratory report setting forth that a trace amount of cocaine was found in a pipe which

appellant had in his possession. This was the only evidence proffered by the State and

appearing of record that showed the presence of a controlled substance. The report

was sponsored by Brandon Conrad, the manager of the Texas Department of Public

Safety laboratory, as a business record.        However, it had been prepared by Roy

Murphy, the previous supervisor of the crime lab. Additionally, Conrad did not perform



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his own analysis of the material. Finally, defense counsel withheld objection to the

report when proffered and admitted into evidence.

       Before us, appellant argues that the report was inadmissible given the person

through which the State authenticated and proffered it.             In other words, the

Confrontation Clause appearing in the Sixth Amendment of the United States

Constitution barred the trial court from admitting it under the circumstances of record.

And, since no other evidence given the factfinder illustrated that the residue found in the

pipe was a controlled substance, defense counsel’s failure to invoke the Confrontation

Clause harmed appellant. We agree.

       Out-of-court testimonial evidence violates the Confrontation Clause unless the

declarant is unavailable to testify and the defendant had a prior opportunity to cross-

examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158

L.Ed.2d 177 (2004). It is clear that such out-of-court testimonial evidence includes

reports of the kind at issue here and offered into evidence via circumstances like those

here. Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S.Ct. 2527, 2532, 174 L.Ed.2d

314 (2009); Cuadros-Fernandez v. State, 316 S.W.3d 645, 657-58 (Tex. App.–Dallas

2009, no pet.); Hamilton v. State, 300 S.W.3d 14, 20-21 (Tex. App.–San Antonio 2009,

pet. ref’d). Thus, if defense counsel would have objected to the report’s admission as

violating the Confrontation Clause, the trial court would have erred in admitting it.

Indeed, the State concedes as much.

       Nevertheless, the State contends that because the record fails to show the

reason for defense counsel’s silence, we are prohibited from concluding that he lacked

such a reasonable strategy.     So too does it offer a potential strategy that defense

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counsel could have been pursuing. It involved the possibility that counsel may have

hoped to induce the jury to find his client guilty of a lesser offense (i.e. possessing drug

paraphernalia) because of the “trace” amount of cocaine present. This may be true.

Yet, such a strategy would require defense counsel to forego uttering an objection

(legitimized by the United States Supreme Court) to the only evidence of record

establishing his client’s guilt for the crime for which he was convicted. Hopefully, no

counsel would choose such a course of action for it is not reasonable. Indeed, if the

report were excluded, and given the absence from the record of all other evidence

establishing the presence of a controlled substance, no rational jury could have

convicted appellant for possessing cocaine. Moreover, logic and reason suggest that

excluding the only evidence of culpability for the greater offense would have all but

forced the jury to convict appellant of only the lesser crime, assuming, of course, that

defense counsel would have even sought an instruction on a lesser crime.1 These

scenarios also illustrate why the omission by defense counsel harmed appellant.

Defense counsel’s omission allowed for the admission of the only evidence supporting

appellant’s conviction.

       We can imagine no reasonable trial strategy for remaining silent, under the

circumstances at bar.        It would be unreasonable to withhold objection to the only

evidence of guilt when that evidence is inadmissible. And, to do so, is prejudicial.


       1
          The State also argues that if an objection had been uttered and sustained, Conrad could have
simply reached his own expert opinion, based on the report, about the nature of the substance discovered
in the pipe. This, of course, assumes that Conrad would have provided the testimony suggested by the
State. But, we do not know that. Instead, we only know that he did not. People have long said that “if a
frog had wings, it wouldn’t bump its butt.” Such is true about conjecture; however, what could have
occurred does not fill the void left by what actually did happen.

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       Accordingly, we sustain the point of error, reverse the judgment and remand the

matter to the trial court for a new trial.



                                                 Brian Quinn
                                                 Chief Justice



Publish.




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