           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

             K ELLER, P.J., delivered the opinion of the Court in which P RICE,
W OMACK, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J., filed a
dissenting opinion. J OHNSON, J., concurred.



       A laboratory report was admitted into evidence, but the analyst who conducted the test and

prepared the report did not testify. We hold that the defendant’s trial counsel has not been shown

to have performed deficiently in failing to object to the report on Confrontation Clause grounds when

the record does not contain counsel’s reasons for failing to object and does not establish whether the

analyst could or would have testified if an objection had been lodged.
                                                                                MENEFIELD — 2

                                        I. BACKGROUND

       Appellant was charged with possessing cocaine in an amount less than one gram. At trial,

the State introduced a laboratory report showing that a trace amount of cocaine had been found in

a pipe taken from appellant. The sponsoring witness for the report was Brandon Conrad, the

manager of the Texas Department of Public Safety laboratory. But the drug testing had been

conducted, and the report had been prepared, by Roy Murphy, the previous supervisor of the crime

lab. Murphy was never called to testify. The report was the only evidence of appellant’s cocaine

possession.

       Before the report was admitted, defense counsel questioned Conrad about who conducted the

test and what procedure was used. At the conclusion of this questioning, defense counsel stated that

he had no objection to the admission of the report. The propriety of defense counsel’s failure to

object was not explored at trial, nor was the issue raised in a motion for new trial.

       On appeal, appellant contended that defense counsel’s failure to object to the report

constituted ineffective assistance. The court of appeals agreed, finding that the report was

inadmissible under the Supreme Court’s Confrontation Clause jurisprudence1 and concluding that

it could “imagine no reasonable trial strategy for [defense counsel’s] remaining silent.”2

                                          II. ANALYSIS

       In its petition for discretionary review, the State contends that the court of appeals erred in



       1
           See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
       2
           Menefield v. State, 343 S.W.3d 553, 555-56 (Tex. App.–Amarillo 2011).
                                                                                MENEFIELD — 3

determining that “the record on direct appeal was sufficient to find trial counsel ineffective under

Strickland v. Washington3 where counsel’s actions could have been based on reasonable strategy.”

We agree.

       For a claim of ineffective assistance of counsel to succeed, the record must demonstrate both

deficient performance by counsel and prejudice suffered by the defendant.4 An ineffective-assistance

claim must be “firmly founded in the record” and “the record must affirmatively demonstrate” the

meritorious nature of the claim.5 “Direct appeal is usually an inadequate vehicle for raising such a

claim because the record is generally undeveloped.”6 This statement is true with regard to the

“deficient performance” prong of the inquiry, when counsel’s reasons for failing to do something do

not appear in the record.7 Trial counsel “should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective.”8 If trial counsel is not given that opportunity, then

the appellate court should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.”9

       The reason that the laboratory report in this case was inadmissible is that Murphy, its author,


       3
           466 U.S. 668 (1984).
       4
           Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
       5
           Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
       6
           Id.
       7
           Id.
       8
           Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).
       9
           Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
                                                                                MENEFIELD — 4

had not been called to testify.10 We do not know why counsel failed to raise a Confrontation Clause

objection because the record is silent on the matter. Perhaps there was no good reason, and counsel’s

conduct was deficient. Or 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. Neither trial counsel nor the State have been given an opportunity respond to

appellant’s allegation.   Consequently, we conclude that the record fails to show deficient

performance.

       We reverse the judgment of the court of appeals and remand this cause to that court to

consider appellant’s remaining claims.


Delivered: April 18, 2012
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       10
          See Melendez-Diaz, 129 S.Ct. at 2532 (When affidavits prepared by drug analysts were
admitted at trial, the “petitioner was entitled to be confronted with the analysts at trial.”).
