IN THE
TENTH COURT OF APPEALS
No. 10-13-00381-CR
THOMAS LEON BYRD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2012-1658-C2
MEMORANDUM OPINION
A jury found Appellant Thomas Leon Byrd guilty on a three-count indictment of
possession of cocaine in an amount of one gram or more but less than four grams,
possession of less than one gram of methamphetamine, and evading arrest or detention
with a prior evading conviction. Byrd pleaded true to the enhancement and habitual
allegations, and the jury assessed punishment at eighty years, twenty years, and twenty
years, respectively. The trial court ordered the sentences to run consecutively with a
sentence for which Byrd was on parole at the time of these three offenses.
Byrd filed a motion for new trial alleging that his trial attorney was ineffective
for failing to make a timely Batson challenge and that the order for consecutive
sentences was an Eighth Amendment violation. After a hearing, the trial court denied
the motion for new trial. Byrd appeals, raising three issues. We will affirm.
In his first issue, Byrd contends that he received ineffective assistance of counsel
because his trial attorney failed to make a timely Batson challenge. Because Bird
presented his ineffective-assistance claim to the trial court in his motion for new trial,
his first issue is actually a challenge to the trial court’s denial of his motion for new trial,
which we review for an abuse of discretion. Bates v. State, 88 S.W.3d 724, 727-28 (Tex.
App.—Tyler 2002, pet. ref’d).
To prevail on a claim of ineffective assistance of counsel, a defendant must show
that: (1) trial counsel’s representation fell below an objective standard of
reasonableness, based on the prevailing professional norms; and (2) there is a
reasonable probability that, but for trial counsel’s deficient performance, the result of
the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
687-95, 104 S.Ct. 2052, 2064-69 (1984); Dewberry v. State, 4 S.W.3d 735, 737 (Tex. Crim.
App. 1999). The defendant has the burden of proving ineffective assistance of counsel
by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
We assume without deciding that, with respect to the Batson preservation issue,
Byrd established the first prong at the new-trial hearing. Therefore, we turn to the
second prong, also known as the prejudice prong. See Perez v. State, 310 S.W.3d 890,
Byrd v. State Page 2
892-93 (Tex. Crim. App. 2010); Batiste v. State, 888 S.W.2d 9, 14-15 (Tex. Crim. App.
1994).
If a defendant prevails on a Batson issue on appeal, he is entitled to a new trial.
Kassem v. State, 263 S.W.3d 377, 382 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing
Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989) (plurality op.)). But in the
context of an ineffective-assistance claim for failure to timely make a Batson challenge, a
defendant must show prejudice. Batiste, 888 S.W.2d at 15. In other words, the
defendant must show that there is a reasonable probability that the result of the
proceeding would have been different; i.e., that one or more of the improperly struck
jurors would have rendered a different verdict. See Batiste v. State, 834 S.W.2d 460, 466
(Tex. App.—Houston [14th Dist.] 1992), aff’d, 888 S.W.2d 9 (Tex. Crim. App. 1994). Byrd
presented no such evidence, nor did he present evidence that, because of his trial
counsel’s untimely Batson challenge, he was forced to accept an objectionable juror or
that the selected jury was incapable of providing the impartial tribunal necessary to
ensure the proper functioning of the adversarial system. See Butler v. State, No. 02-02-
00304-CR, 2003 WL 21983262, at *4-5 (Tex. App.—Fort Worth Aug. 21, 2003, pet. ref’d)
(mem. op., not designated for publication) (citing Batiste, 888 S.W.2d at 17). And Batson
itself tolerates no assumptions about juror competence or impartiality on account of
race. Batiste, 888 S.W.2d at 16; see also Butler, 2003 WL 21983262, at *4.
For these reasons, the trial court did not abuse its discretion in denying Byrd’s
motion for new trial on ineffective assistance of counsel, and we overrule his first issue.
Byrd v. State Page 3
We next turn to Byrd’s third issue, which asserts that the trial court’s imposition
of consecutive sentences without explanation or reasons violates the Eighth
Amendment. The Court of Criminal Appeals, however, has settled that issue adversely
to Byrd: “a trial judge’s decision to cumulate under Texas Code of Criminal Procedure,
Article 42.08(a), is ‘a normative, discretionary function that does not turn on discrete
findings of fact.’ As a result, when a trial judge lawfully exercises the option to
cumulate, that decision is unassailable on appeal.” Beedy v. State, 250 S.W.3d 107, 110
(Tex. Crim. App. 2008) (quoting and citing Barrow v. State, 207 S.W.3d 377, 380-81 (Tex.
Crim. App. 2006)). Therefore, we overrule issue three.
We conclude with Byrd’s second issue, which asserts that the trial court
impermissibly ordered Byrd’s sentences in this case to run consecutively with a 2008
sentence for which he was on parole at the time of the offenses in this case.
The record reflects that on July 8, 2008, Byrd was convicted of the offense of
possession of a controlled substance (cocaine) with intent to deliver in case no. 2007-
1823-CR in the 19th District Court of McLennan County. He was sentenced to fifteen
years’ imprisonment, and from the record it is clear that Byrd was on parole when the
instant offenses were committed. After the trial court imposed Byrd’s sentences, the
State requested that the trial court order them to run “consecutive to his parole.” The
trial court agreed, and each of Byrd’s judgments of conviction states: “The Court
ORDERS that the sentence in this conviction shall run consecutively and shall begin
only when the judgment and sentence in the following case has ceased to operate: 2007-
1823-CR.”
Byrd v. State Page 4
Byrd argues that, because there is no evidence Byrd’s parole had been revoked,
the trial court’s cumulation order impermissibly ordered Byrd’s sentences to run
consecutively with some future sentence. See, e.g., Bollman v. State, No. 02-08-00061-CR,
2009 WL 161032, at *5 (Tex. App.—Fort Worth Jan. 22, 2009, no pet.) (mem. op., not
designated for publication). But irrespective of parole revocation, we and other courts
have held that a trial court may stack a new sentence on a prior sentence for which the
defendant is on parole. McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676, at *9
(Tex. App.—Waco Sept. 26, 2013, pet. ref’d) (mem. op., not designated for publication)
(citing Hill v. State, 213 S.W.3d 533, 538 (Tex. App.—Texarkana 2007, no pet.); Wilson v.
State, 854 S.W.2d 270, 273 (Tex. App.—Amarillo 1993, pet. ref’d); Jimenez v. State, 634
S.W.2d 879, 881-82 (Tex. App.—San Antonio 1982, pet. ref’d); and Sanchez v. State, No.
02-11-00018-CR, 2012 WL 171295, at *2-3 (Tex. App.—Fort Worth Jan. 19, 2012, no pet.)
(mem. op., not designated for publication). We decline to depart from that precedent
and overrule Byrd’s second issue. Having overruled Byrd’s three issues, we affirm the
trial court’s judgments on each count.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 22, 2015
Do not publish
[CRPM]
Byrd v. State Page 5
Byrd v. State Page 6
Thomas Leon Byrd v. State
Combined Opinion