Billy Don Menefield v. The State of Texas--Appeal from 31st District Court of Wheeler County (majority)

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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). remaining issues. The Court asks that we consider appellant’s 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 Brian Quinn Chief Justice Do not publish. 1 Although given the opportunity, neither appellant nor the State has submitted any additional briefs. 2 Appellant filed a motion for new trial with a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. 2