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 COURT 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 sentencing him to twenty-two months in a 

state jail. Through a single issue, appellant contends that he received ineffective 

assistance of counsel at his adjudication hearing. We affirm. 

 Appellant’s issue is overruled for the simple reason that the record contains no 

evidence evincing why defense counsel did that of which he was accused of doing. Nor 
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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 probation. 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. LEXIS 335 (Tex. Crim. App. April 18, 

2012). 

 It may well be that no one can conceive 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. LEXIS 335 (Tex. Crim. App. April 18, 2012) (holding that no reasonable trial 

strategy existed to warrant counsel’s failure to object to inadmissible evidence 

compromising the only evidence of guilt). And, it was for that reason we followed 

precedent from the Court of Criminal Appeals that required evidence of counsel’s 

motivations unless there could 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. LEXIS 335 (Tex. Crim. App. April 18, 2012) (dissent) 

(discussing the same topic and the majority’s failure to address its own precedent 

requiring no proof of counsel’s motivation if no reasonable strategy could exist). Now, it 

appears that defense counsel must be given an opportunity to explain his conduct in all

cases and the State be given a chance to respond. See Menefield v. State, supra

(stating “[t]he reason that the laboratory 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 objection because the record is silent on the matter. 
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Perhaps there was no good reason, and counsel's conduct was deficient. Or perhaps 

the State could (and with an objection would) have brought Murphy to the courtroom to 

testify, and counsel realized that cross-examining 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.