Billy Don Menefield v. State ( 2011 )

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
2
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
3
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.
4
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.
5