Billy Don Menefield v. State ( 2012 )

NO. 07-10-0378-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 20, 2012
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
Memorandum Opinion on
Remand from Court of Criminal
Appeals
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
This appeal has been remanded to us by the Court of Criminal Appeals after
reversing our decision that appellant received ineffective assistance of counsel by his
counsel’s failure to object to the only evidence that he was in possession of a controlled
substance when it did not satisfy the confrontation clause. Menefield v. State, 363
S.W.3d 591 (Tex. Crim. App. 2012). The Court asks that we consider appellant’s
remaining issues.
Yet, those issues are also claims of ineffective assistance in that appellant
asserts his counsel failed to object to inadmissible punishment enhancement evidence
and introduced allegedly inadmissible propensity evidence tending to show his bad
character.1 Without explanation in the record as to the reason for counsel’s actions and
without the State’s response to that explanation, we may not find that counsel was
ineffective.2 Menefield v. State, 363 S.W.3d at *3-4.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
1
Although given the opportunity, neither appellant nor the State has submitted any additional
briefs.
2
Appellant filed a motion for new trial with a supporting affidavit but did not address these issues
in the motion or affidavit.
2