In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00067-CR __________________
TIMOTHY LEROY CORNELL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR33243 __________________________________________________________________
MEMORANDUM OPINION
Arguing his attorney failed to provide him with effective assistance of counsel
at his trial, Timothy Leroy Cornell asks this Court to reverse his conviction and
award him a new trial. 1 In one issue, Cornell argues the attorney who represented
him in his trial failed to provide him with effective assistance of counsel by failing
1 See Tex. Health & Safety Code Ann. § 481.115(c). 1 to object to an exhibit the trial court admitted into evidence showing that a matchbox,
tied by other testimony to Cornell, contained 2.5 grams of methamphetamine. In
Cornell’s brief, he argues his attorney should have objected to a chemist’s affidavit,
one of the items in the exhibit, which explains how the lab tested the substance at
issue in Cornell’s trial. 2 Because Cornell failed to develop a sufficient record to show
his attorney’s performance was deficient, we affirm.
Background
While approaching an intersection in Liberty County, Texas, Deputy Ranson
Martel, a deputy sheriff employed by the Liberty County Sheriff, saw a car turn in
front of him at an intersection. Because the car turned in front of the deputy, which
required the deputy to slam on his brakes, Deputy Martel then stopped the car to
investigate the car’s driver for failing to yield the right-of-way. After the deputy
stopped the car, he approached the car and asked the car’s driver and the car’s
passengers for their IDs. The car’s driver did so, but the car’s passengers advised the
deputy they did not have IDs. Deputy Martel asked those in the car to exit the car.
As Cornell was leaving, Deputy Martel thought he saw Cornel make a throwing
motion, which caused the deputy to suspect that Cornell had thrown something
toward or under the car. Investigating further, Deputy Martel looked under the car.
2 See Tex. Code Crim. Proc. Ann. art. 38.41. 2 He found a matchbox near one of the car’s tires, near where Cornell had stopped.
Upon opening the matchbox, Deputy Martel saw a substance inside that he believed
based on his experience to be crystal meth. Deputy Martel arrested Cornell for
possessing methamphetamine, a substance defined as a “controlled substance” under
the Controlled Substances Act.3
Months after Cornell’s arrest, the Liberty County Sheriff’s Office sent a baggy
containing the substance Deputy Martel discovered in the matchbox to the
Department of Public Safety’s crime lab for testing. The Crime Lab delegated the
task to NMS Labs, a lab in Pennsylvania. Caitlyn Fachet, an analyst for NMS Labs,
analyzed the sample in the baggy the Crime Lab sent her to be tested. She determined
the substance in the baggy contained 2.5 grams of meth. Fachet wrote a report, dated
April 24, 2017, in which she detailed the results of her tests. In May 2017, a grand
jury indicted Cornell for intentionally or knowingly possessing methamphetamine,
a controlled substance. 4
In August 2018, the prosecutor notified Cornell that the State intended to
introduce the lab results into evidence during his trial. The notice the State filed
includes a document the parties are referring to as a “certificate of analysis,” which
3 Tex. Penal Code. Ann. § 481.102(6). 4 See Tex. Health & Safety Code Ann. § 481.115(c). 3 was signed by Amanda Andrews, a forensic chemist and leader in NMS’s lab. The
State attached Andrews’ affidavit, a lab licensure history, Fachet’s lab report, and
NMS’s chain of custody report to the notice. In her affidavit, Andrews states she has
“the technical knowledge and qualifications to certify that [Fachet] correctly
performed the analysis on the specimen [reflected in her report] while [Fachet] was
an employee of NMS Labs[,]” and she “attest[s] to the results of the analysis
provided on the case report indicated above.”
In February 2019, the parties tried the case to a jury. During the trial, the
prosecutor offered the certificate of analysis and the lab report into evidence.
Cornell’s attorney did not object to the exhibit, which included the certificate of
analysis and lab report, during Cornell’s trial. After final argument, the jury found
Cornell guilty of possessing methamphetamine and assessed a sixty-seven-year
sentence.5 After that, the record does not show that Cornell filed any post-judgment
motions, nor did he raise a claim in the trial court alleging that his attorney failed to
provide him with effective assistance of counsel during his trial.
5 Possessing between one and four grams of methamphetamine is a third- degree felony. See id. But the jury found the two enhancement allegations in Cornell’s indictment true, thereby enhancing Cornell’s punishment range to 25 to 99 years (or life) in prison. See Tex. Penal Code Ann. § 12.42(d). 4 Analysis
Cornell offers two reasons suggesting that his attorney provided him with
ineffective assistance of counsel during his trial. First, he argues that his attorney
should have objected to the affidavit and lab report by arguing that admitting them
violated his rights under the Confrontation Clause to examine Andrews’ and
Fachet’s testimony that shows the baggy contained methamphetamine in the trial.6
Second, Cornell argues his attorney should have objected to the affidavit and lab
report by arguing the State failed to lay the proper predicate to have the documents
admitted based on the rules in the Code of Criminal Procedure governing the
admission of a certificate of analysis, article 38.41 of the Code of Criminal
Procedure.7
To establish a claim of ineffective assistance of counsel, the record before the
reviewing court must show two things, (1) that the defendant’s attorney performed
at a standard that fell below an objective standard of reasonableness, and (2) that the
defendant was prejudiced by the errors he relies on in his appeal to claim he received
ineffective assistance of counsel during his trial.8 To establish a claim based on
6 U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”). 7 Tex. Code Crim. Proc. Ann. art. 38.41. 8 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 5 receiving ineffective assistance of counsel, the defendant must create a record that
shows the claim is “firmly founded” in the record from the court below and the
record must “affirmatively demonstrate the meritorious nature of the claim.”9
Generally, a defendant filing a direct appeal from his conviction in which he
complains of ineffective assistance of counsel does not benefit from a record
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00067-CR __________________
TIMOTHY LEROY CORNELL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR33243 __________________________________________________________________
MEMORANDUM OPINION
Arguing his attorney failed to provide him with effective assistance of counsel
at his trial, Timothy Leroy Cornell asks this Court to reverse his conviction and
award him a new trial. 1 In one issue, Cornell argues the attorney who represented
him in his trial failed to provide him with effective assistance of counsel by failing
1 See Tex. Health & Safety Code Ann. § 481.115(c). 1 to object to an exhibit the trial court admitted into evidence showing that a matchbox,
tied by other testimony to Cornell, contained 2.5 grams of methamphetamine. In
Cornell’s brief, he argues his attorney should have objected to a chemist’s affidavit,
one of the items in the exhibit, which explains how the lab tested the substance at
issue in Cornell’s trial. 2 Because Cornell failed to develop a sufficient record to show
his attorney’s performance was deficient, we affirm.
Background
While approaching an intersection in Liberty County, Texas, Deputy Ranson
Martel, a deputy sheriff employed by the Liberty County Sheriff, saw a car turn in
front of him at an intersection. Because the car turned in front of the deputy, which
required the deputy to slam on his brakes, Deputy Martel then stopped the car to
investigate the car’s driver for failing to yield the right-of-way. After the deputy
stopped the car, he approached the car and asked the car’s driver and the car’s
passengers for their IDs. The car’s driver did so, but the car’s passengers advised the
deputy they did not have IDs. Deputy Martel asked those in the car to exit the car.
As Cornell was leaving, Deputy Martel thought he saw Cornel make a throwing
motion, which caused the deputy to suspect that Cornell had thrown something
toward or under the car. Investigating further, Deputy Martel looked under the car.
2 See Tex. Code Crim. Proc. Ann. art. 38.41. 2 He found a matchbox near one of the car’s tires, near where Cornell had stopped.
Upon opening the matchbox, Deputy Martel saw a substance inside that he believed
based on his experience to be crystal meth. Deputy Martel arrested Cornell for
possessing methamphetamine, a substance defined as a “controlled substance” under
the Controlled Substances Act.3
Months after Cornell’s arrest, the Liberty County Sheriff’s Office sent a baggy
containing the substance Deputy Martel discovered in the matchbox to the
Department of Public Safety’s crime lab for testing. The Crime Lab delegated the
task to NMS Labs, a lab in Pennsylvania. Caitlyn Fachet, an analyst for NMS Labs,
analyzed the sample in the baggy the Crime Lab sent her to be tested. She determined
the substance in the baggy contained 2.5 grams of meth. Fachet wrote a report, dated
April 24, 2017, in which she detailed the results of her tests. In May 2017, a grand
jury indicted Cornell for intentionally or knowingly possessing methamphetamine,
a controlled substance. 4
In August 2018, the prosecutor notified Cornell that the State intended to
introduce the lab results into evidence during his trial. The notice the State filed
includes a document the parties are referring to as a “certificate of analysis,” which
3 Tex. Penal Code. Ann. § 481.102(6). 4 See Tex. Health & Safety Code Ann. § 481.115(c). 3 was signed by Amanda Andrews, a forensic chemist and leader in NMS’s lab. The
State attached Andrews’ affidavit, a lab licensure history, Fachet’s lab report, and
NMS’s chain of custody report to the notice. In her affidavit, Andrews states she has
“the technical knowledge and qualifications to certify that [Fachet] correctly
performed the analysis on the specimen [reflected in her report] while [Fachet] was
an employee of NMS Labs[,]” and she “attest[s] to the results of the analysis
provided on the case report indicated above.”
In February 2019, the parties tried the case to a jury. During the trial, the
prosecutor offered the certificate of analysis and the lab report into evidence.
Cornell’s attorney did not object to the exhibit, which included the certificate of
analysis and lab report, during Cornell’s trial. After final argument, the jury found
Cornell guilty of possessing methamphetamine and assessed a sixty-seven-year
sentence.5 After that, the record does not show that Cornell filed any post-judgment
motions, nor did he raise a claim in the trial court alleging that his attorney failed to
provide him with effective assistance of counsel during his trial.
5 Possessing between one and four grams of methamphetamine is a third- degree felony. See id. But the jury found the two enhancement allegations in Cornell’s indictment true, thereby enhancing Cornell’s punishment range to 25 to 99 years (or life) in prison. See Tex. Penal Code Ann. § 12.42(d). 4 Analysis
Cornell offers two reasons suggesting that his attorney provided him with
ineffective assistance of counsel during his trial. First, he argues that his attorney
should have objected to the affidavit and lab report by arguing that admitting them
violated his rights under the Confrontation Clause to examine Andrews’ and
Fachet’s testimony that shows the baggy contained methamphetamine in the trial.6
Second, Cornell argues his attorney should have objected to the affidavit and lab
report by arguing the State failed to lay the proper predicate to have the documents
admitted based on the rules in the Code of Criminal Procedure governing the
admission of a certificate of analysis, article 38.41 of the Code of Criminal
Procedure.7
To establish a claim of ineffective assistance of counsel, the record before the
reviewing court must show two things, (1) that the defendant’s attorney performed
at a standard that fell below an objective standard of reasonableness, and (2) that the
defendant was prejudiced by the errors he relies on in his appeal to claim he received
ineffective assistance of counsel during his trial.8 To establish a claim based on
6 U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”). 7 Tex. Code Crim. Proc. Ann. art. 38.41. 8 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 5 receiving ineffective assistance of counsel, the defendant must create a record that
shows the claim is “firmly founded” in the record from the court below and the
record must “affirmatively demonstrate the meritorious nature of the claim.”9
Generally, a defendant filing a direct appeal from his conviction in which he
complains of ineffective assistance of counsel does not benefit from a record
sufficient to prove ineffective assistance because the proof needed to demonstrate
the attorney’s ineffectiveness was never developed when the defendant was in the
trial court. 10 For example, the defendant while in the trial court must give the
attorney who represented him in his trial a chance to explain the conduct the
defendant is criticizing in the appeal since in the absence of such an opportunity the
record will not be sufficient to allow the defendant to establish the assistance he
received violated the standards of reasonable professional assistance.11
Here, the record shows Cornell did not file a post-judgment motion, such as a
motion for new trial. Cornell’s attorney did not testify in his trial, so nothing in the
record shows whether a reasonable explanation might exist to explain why he didn’t
object to Andrews’ affidavit and the lab report that accompanied it during his trial.
9 Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (cleaned up). 10 Id. 11 Id. 6 Thus, we cannot now know from the record currently before us why Cornell’s
attorney failed to object to this evidence in his trial. Perhaps the attorney who
represented Cornell thought Andrews and Fachet were available to testify if he
lodged the objections that Cornell now argues he should have raised in the trial. Or
the attorney might have reasonably believed that Cornell would be better off if he
did not force the State to bring Fachet and Andrews as witnesses to increase the
chance the State would decide to rely solely on the affidavit and report to avoid
having Andrews and Fachet provide more detailed explanations before the jury in
the trial. Or perhaps Cornell’s trial attorney believed the trial court would grant a
motion for continuance and allow the State the time it needed to arrange for Fachet
and Andrews to attend the trial should he object on the grounds Cornell argues he
should have objected during the trial. But now, the record we have is undeveloped
on these matters, and for that reason we must conclude Cornell did not meet the
burden he had in his appeal to show that his attorney who represented him in his trial
failed to discharge his duties of providing Cornell with reasonable professional
assistance.12
12 See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). 7 Given Cornell’s failure to meet his burden of proving ineffective assistance,
we overrule Cornell’s sole issue.13 Accordingly, the trial court’s judgment is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 10, 2020 Opinion Delivered February 17, 2021 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
13 Strickland, 466 U.S. at 693 (explaining that, except for conflict-of-interest claims, “actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice”). 8