NO. 07-11-0470-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D APRIL 30, 2012

__________________ ____________ JIMMY EARL DUTY, Appellant

v. THE STATE OF TEXAS, Appellee

__________________ _____________ FROM THE 100TH DISTRICT CO URT OF CHILDRESS COUNTY; NO. 5307; HON. STUART MESSER, PRESIDING

__________________ _____________ Opinion

__________________ _____________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Jimmy Earl Duty (appellant) appeals a judgment adjudicating him guilty of possession of a controlled substance and s entencing him to twenty-two months in a state jail. Through a single issue, appellant contends t hat he received ineffective assistance of counsel at his adj udication hearing. We affirm. Appellant’s issue is overruled for the si mple reason that the record contains no evidence evincing why defense counsel did that of which he was accused of doing. Nor2 does it illustrate that the State had an opportunity to show what it would have done had defense counsel invoked the rule or objected to appellant’s probation officer testifying about whether appellant was a candidate for continued probati on. Those circumstances seem to be conclusive given our Court of Criminal Appeals’ recent decision in Menefield v. State , No. PD-1161-11, 2012 Tex. Crim. App. L EXIS 335 (Tex. Crim. App. April 18, 2012). It may well be that no one can concei ve of any reasonable trial strategy underlying counsel’s action or inaction. Indeed, we could find none in Menefield v. State, 343 S.W.3d 553 (Tex. App.–Amarillo 2011), rev’d, No. PD-1161-11, 2012 Tex. Crim. App. L EXIS 335 (Tex. Crim. App. April 18, 2012) (holding that no reasonable trial strategy existed to warrant counsel’s fa ilure to object to inadmissible evidence compromising the only evidence of guilt). And, it was for t hat reason we followed precedent from the Court of Criminal Appeals that requi red evidence of counsel’s motivations unless there c ould be no viable motive. See Andrews v. State , 159 S.W.3d 98, 103-04 (Tex. Crim. App. 2005) (so stating the test); see also Menefield v. State , No. PD-1161-11, 2012 Tex. Crim. App. L EXIS 335 (Tex. Crim. App. Ap ril 18, 2012) (dissent) (discussing the same topic and the majori ty’s failure to address its own precedent requiring no proof of counsel’s motivation if no reasonable strat egy could exist). Now, it appears that defense counsel must be given an opportunity to explain his conduct in all cases and the State be give n a chance to respond. See Menefield v. State, supra (stating “ [t] he reason that the laborator y report in this case was inadmissible is that Murphy, its author, had not been called to testify. We do not know why counsel failed to raise a Confrontation Clause ob jection because the record is silent on the matter.3 Perhaps there was no good reason, and counsel 's conduct was deficient. Or perhaps the State could (and with an obj ection would) have brought Mur phy to the courtroom to testify, and counsel realized that cross-exam ining Murphy would not benefit his client. Neither trial counsel nor the State have been given an opportunity to respond to appellant's allegation. Consequently, we conclude that the record fails to show deficient performance”). Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Publish.