## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O . P D - 1 1 6 1 - 1 1

B I L L Y D O N M E N E F I E L D , A p p e l l a n t

v . T H E S T A T E O F T E X A S O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E V E N T H C O U R T O F A P P E A L S

W H E E L E R C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h P R IC E , W O M A C K , K E A S L E R , H E R V E Y , C O C H R A N , a n d A L C A L A , J J . , j o i n e d . M E Y E R S , J . , f i l e d a d i s s e n t i n g o p i n i o n . J O H N S O N , J . , c o n c u r r e d .

A labora tory repor

t w as admitted into evidenc e, but the analy st who conducte d the test and prepa red the repor

t did not testi fy . We hold that the defendant’s trial counsel has not been shown
to have perf

ormed defic iently in failing to object to the repor t on Confrontation Clause g rounds when the rec ord does not contain counsel’s rea sons for failing to object and does not establish whether the analy st could or would have testified if an obje ction had bee n lodge d.MENEF IELD — 2 I. BACKG ROUND Appellant wa s char g ed with possessing coca ine in an amount less than one g ram. At trial, the S tate int roduce d a labor atory repor t showing tha t a trac e amount of c ocaine had been found in

a pipe taken from appellant. The sponsoring witness for the repo rt was Br andon Conrad, the manag er of the Texas Depa rt m en t of Public Safety labora tory

. But the drug testing had been conducte d, and the repor

t had been prepa

red, by Roy Murphy , the previous supervisor of the crime lab. Murphy was never called to testify

. The report was the onl y evidenc e of appellant’ s coc ai ne possession. Be fore the repor

t was admitted, defe nse counsel ques tione d Conrad about who conducte d the
test and what proce dure was used. At the conclusion of this questioning, defe nse counsel stated that he had no objection to the admission of the repor t. The p ropriety of defe nse counsel’s failure to object wa s not ex plored a t trial, nor was the issue raised in a motion for new tria l. On appea l, appellant contende d that defe nse counsel’s fa ilure to object to the repor t constituted ineffe ctive assistance

. The court of appea ls ag ree d, finding that the repor t was inadmissible under the Supreme Court’s Confrontation Clause jurisprudenc e and concluding that 1 it could “imag ine no re asonable trial strateg y for [defe nse counse l’s] remaining silent.” 2 II. ANALYSIS I n its petiti on for discr etionary revie w, the State contends that the cour t of appe als err ed in

See M elende z-Diaz v. Massac husetts , 129 S.Ct . 2527 (2009). 1 Mene field v. State , 343 S.W .3d 553, 555-56 (Te x . App.–Amar illo 2011). 2MENEF IELD — 3

deter mining t h at “t he record on direc t appea l was sufficient t o find trial counsel ineffec tive under Strickland v. W

ashington wher e counsel’s actions could have been based on rea sonable strateg y .”

3 We ag ree . For a claim of ineffe ctive assistance of counsel to succe ed, the rec ord must demonstrate both defic ient perf

ormanc e by couns e l a

n d p r e ju d ic e s u f f e r e d by the defe ndant. An ineffe ctive-a ssistance 4 claim must be “firmly founded in the r ecor d” and “ the re cord must a ffirma tively demonstrate” the meritorious nature of the claim. “Dire ct appe al is usually an inade quate ve hicle for raising such a 5 claim beca

use the rec ord is g ener ally undevelo p ed .” This statement is true with reg ard to the 6 “def icient perf

ormanc e” prong of the inquiry , when counsel’s rea sons for failing to do something do
not appea r in the rec ord. Trial counsel “should ordinarily be aff orded an opportunity to explain his 7 actions befor e being denounce d as ineffe ctive.” I f trial counsel is not g iven that opportunity , then 8 the appellate court should not find defi ci en t perf ormanc e unless the challeng ed conduct was “so outrag eous that no compe tent attorney would have e ng ag ed in it.” 9 The rea son that the labora tory repor t in this case was inadmissible is that Murphy , its author,

466 U.S. 668 (1984). 3 Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). 4 Id. (quoting Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999)). 5 Id. 6 Id. 7 Id. (quoting Rylander v . State , 101 S.W .3d 107, 111 (Tex. Crim. App. 2003)). 8 Id. (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)). 9MENEF IELD — 4

had not been called to testify

. We do not know why counsel failed to raise a Confrontation Clause 1 0 objection beca

use the rec ord is silent on the matter. Perhaps there was no g ood rea son, and counsel’s conduct was defic ient. Or per h ap s t h e S t ate could (and with an objection would) have broug ht Murphy to the courtroom to testify , and counsel rea liz ed that cross-e x amining M u rphy would not benef it his client. Neither trial counsel nor the State have been g iven an opportu n i t y re s p o n d to appellant’ s alleg ation. Consequently , we conclude that the rec ord fails to show defic ient perf ormanc e. We reve rse the judgme nt o f the court of appea ls and rema nd this cause to that court to consider a

ppellant’s re maining c laims.

Deliver ed: April 18, 2012 Publis h

See Mele ndez-Diaz , 129 S.Ct . at 2532 (When af fidavits prepa

red by drug analy sts were 1 0 admitted at trial, the “ petitioner wa s entitled to be confr onted with the ana ly sts at trial.”).