Billy Don Menefield v. State

Opinion

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Do not publish.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.