           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. PD–1161–11



                          BILLY DON MENEFIELD, Appellant

                                                v.

                                  THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                           WHEELER COUNTY

               M EYERS, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       The only evidence proffered by the State that showed the presence of a controlled

substance was a lab report. However, the author of the report, Murphy, was not called to

testify. The defense did not object to the admission of the evidence despite the fact that

admitting it violated the Confrontation Clause.1 Appellant appealed his conviction for

possession of a controlled substance on the grounds that he received ineffective assistance


       1
        Defense counsel and the trial court must be oblivious to the rules of evidence regarding
business records.
                                                                    Menefield dissent–Page 2

of counsel. The court of appeals used the correct standard, but could not come up with a

strategy that would make sense for why the attorney in this case would not object to the

State’s proffer of inadmissible evidence. Menefield v. State, 343 S.W.3d 553, 555 (Tex.

App–Amarillo 2011). And, since there was no other evidence indicating that the residue

in question was a controlled substance, the attorney’s deficient performance harmed

Appellant. Id.

       The majority does not even consider the court of appeals’ opinion and does not say

how the court of appeals erred. Rather, the majority does a de novo review and

determines that “perhaps the State could (and with an objection would) have brought

Murphy to the courtroom to testify, and counsel realized that cross-examining Murphy

would not benefit his client.” Maj. op. at 4. Perhaps the majority is just supposing. In its

brief, this is what the State said was the issue with the court of appeals’ opinion:

       From this trial record, one could conclude there were legitimate and
       professionally sound reasons for counsel’s conduct. Because the record
       does not contain specific explanations for counsel’s decisions, the court
       should not reverse for ineffective assistance of counsel. Under Strickland,
       the appellant must prove, by a preponderance of the evidence, that there is,
       in fact, no plausible reason for a specific fact or omission. Appellant has
       not met his burden of showing that his trial counsel’s decisions were so
       deficient and so lacking in tactical or strategic decision-making as to
       overcome the presumption that counsel’s conduct was reasonable and
       professional. Appellant has failed to prove the first prong of Strickland.
       Accordingly, the court of appeals erred in finding the appellant’s trial
       counsel ineffective.

(citations omitted). However, the burden has shifted to the State in this scenario, because

the State brought this appeal to us attempting to show that the court of appeals erred.
                                                                          Menefield dissent–Page 3

Obviously, the State is nowhere near refuting the court of appeals’ opinion. The court of

appeals follows the directive of our opinion in Andrews, which states:

       This is a rare case. This is a case in which the appellant has raised a claim
       of ineffective assistance of counsel on direct appeal and the record is
       sufficient for us to make a decision on the merits. Because we conclude that
       the record is sufficient to conclude that counsel’s performance was deficient
       and that the appellant was prejudiced by counsel’s failure to object to the
       prosecutor’s misstatement of law, we reverse the judgment of the Court of
       Appeals and remand for a new punishment hearing.

Andrews v. State, 159 S.W.3d 98, 103-104 (Tex. Crim. App 2005). The same is true

here.2 There is no logical reason or reasonable strategy for counsel’s failure to object to

clearly inadmissible evidence that was the only evidence supporting his client’s

conviction.3 As the court of appeals stated, “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.” Menefield, 343 S.W.3d at 555. I think the court of appeals got it right, and I

disagree with the majority’s de novo review of this case. Therefore, I respectfully dissent.




                                                             Meyers, J.



       2
        It looks like the dissenters in Andrews have decided to overrule that case rather than
distinguish it from this one.
       3
        The defendant is now going to prison for 12 years for possessing residue of a controlled
substance because his attorney apparently was asleep at the wheel. Even if we upheld the court
of appeals’ opinion, the State would have been able to retry the defendant. Obviously the
defendant’s lawyer allowed his client to get convicted due to his omission.
                        Menefield dissent–Page 4

Filed: April 18, 2012

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