                                   NO. 07-11-0470-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                    APRIL 30, 2012
                           ______________________________

                                   JIMMY EARL DUTY,

                                                                Appellant

                                            v.

                                 THE STATE OF TEXAS,

                                                       Appellee
                          _______________________________

              FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

                     NO. 5307; HON. STUART MESSER, PRESIDING
                          _______________________________

                                      Opinion
                          _______________________________

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

       Jimmy Earl Duty (appellant) appeals a judgment adjudicating him guilty of

possession of a controlled substance and sentencing him to twenty-two months in a

state jail.    Through a single issue, appellant contends that he received ineffective

assistance of counsel at his adjudication hearing. We affirm.

       Appellant’s issue is overruled for the simple reason that the record contains no

evidence evincing why defense counsel did that of which he was accused of doing. Nor
does it illustrate that the State had an opportunity to show what it would have done had

defense counsel invoked the rule or objected to appellant’s probation officer testifying

about whether appellant was a candidate for continued probation. Those circumstances

seem to be conclusive given our Court of Criminal Appeals’ recent decision in Menefield

v. State, No. PD-1161-11, 2012 Tex. Crim. App. LEXIS 335 (Tex. Crim. App. April 18,

2012).

         It may well be that no one can conceive of any reasonable trial strategy

underlying counsel’s action or inaction. Indeed, we could find none in Menefield v.

State, 343 S.W.3d 553 (Tex. App.–Amarillo 2011), rev’d, No. PD-1161-11, 2012 Tex.

Crim. App. LEXIS 335 (Tex. Crim. App. April 18, 2012) (holding that no reasonable trial

strategy existed to warrant counsel’s failure to object to inadmissible evidence

compromising the only evidence of guilt).       And, it was for that reason we followed

precedent from the Court of Criminal Appeals that required evidence of counsel’s

motivations unless there could be no viable motive. See Andrews v. State, 159 S.W.3d

98, 103-04 (Tex. Crim. App. 2005) (so stating the test); see also Menefield v. State, No.

PD-1161-11, 2012 Tex. Crim. App. LEXIS 335 (Tex. Crim. App. April 18, 2012) (dissent)

(discussing the same topic and the majority’s failure to address its own precedent

requiring no proof of counsel’s motivation if no reasonable strategy could exist). Now, it

appears that defense counsel must be given an opportunity to explain his conduct in all

cases and the State be given a chance to respond. See Menefield v. State, supra

(stating “[t]he reason that the laboratory report in this case was inadmissible is that

Murphy, its author, had not been called to testify. We do not know why counsel failed to

raise a Confrontation Clause objection because the record is silent on the matter.



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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 to respond to

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

performance”).

      Accordingly, the judgment is affirmed.



                                               Brian Quinn
                                               Chief Justice


Publish.




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