                                                                      PD-0213-15
                                                     COURT OF CRIMINAL APPEALS
                    PD-0213-15                                        AUSTIN, TEXAS
                                                   Transmitted 2/23/2015 9:32:27 AM
                                                     Accepted 2/26/2015 1:16:37 PM
                                                                       ABEL ACOSTA
                    NO. _________________                                      CLERK

 IN THE COURT OF CRIMINAL APPEALS OF TEXAS




               THOMAS LEON BYRD

                             v.

               THE STATE OF TEXAS


              From the Waco Court of Appeals
                 Cause No. 10-13-00381-CR


     APPELLANT THOMAS LEON BYRD’S
   PETITION FOR DISCRETIONARY REVIEW


                                  E. Alan Bennett
                                  State Bar #02140700
                                  Counsel for Appellant

February 26, 2015                 Sheehy, Lovelace & Mayfield, P.C.
                                  510 N. Valley Mills Dr., Ste. 500
                                  Waco, Texas 76710
                                  Telephone: (254) 772-8022
                                  Telecopier: (254) 772-9297
                                  Email: abennett@slmpc.com


          ORAL ARGUMENT REQUESTED
               Identity of Judge, Parties and Counsel

     Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides

the following list of the trial court judge, all parties to the trial court’s

judgment, and the names and addresses of all trial and appellate counsel.


THE TRIAL COURT:

Hon. Matt Johnson                                          Trial Court Judge
54th District Court, McLennan County
501 Washington Avenue, Suite 305
Waco, Texas 76701

THE DEFENSE:

Thomas Leon Byrd                                                  Appellant

Thomas Clayton West                                            Trial Counsel
4125 West Waco Drive
Waco, Texas 76710

Danny Leon Stokes, Jr.
801 Washington Avenue, Suite 600
Waco, Texas 76701

E. Alan Bennett                                           Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710




Appellant Thomas Leon Byrd’s PDR                                       Page 2
THE STATE:

Landon Wade Ramsay                               Trial Counsel
Evan Miles O’Donnell
Assistant Criminal District Attorneys

Sterling Alan Harmon                         Appellate Counsel
Assistant Criminal District Attorney

Abelino Reyna
Criminal District Attorney
McLennan County District Attorney’s Office
219 North 6th Street, Suite 200
Waco, Texas 76701




Appellant Thomas Leon Byrd’s PDR                         Page 3
                                             Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities ................................................................................................5

Statement Regarding Oral Argument ..................................................................7

Statement of the Case .............................................................................................7

Statement of Procedural History ..........................................................................8

Grounds for Review................................................................................................8

Reasons for Granting Review ................................................................................9

Argument ...............................................................................................................10

      1. Whether the prejudice standard for ineffective-assistance claims
      related to Batson challenges should be reconsidered in light of the
      Supreme Court’s decision in Lafler v. Cooper..............................................10

      2. Whether a trial court may order a sentence to run consecutively
      with a future parole revocation....................................................................18

Prayer ......................................................................................................................25

Certificate of Compliance ....................................................................................26

Certificate of Service .............................................................................................26

Appendix ................................................................................................................27


Appellant Thomas Leon Byrd’s PDR                                                                                     Page 4
                                           Index of Authorities

                                                    Federal Cases

Cooper v. Lafler, 376 F. App’x 563 (6th Cir. 2010) ..............................................12

Drain v. Woods, No. 12-2571, 2014 WL 7398899 (6th Cir. Dec. 31, 2014)........16

Kimmelman v. Morrison, 477 U.S. 365 (1986) ......................................................13

Lafler v. Cooper, 132 S.Ct. 1376 (2012) ..................................................... 12, 13, 14

Missouri v. Frye, 132 S.Ct. 1399 (2012).................................................................13

Strickland v. Washington, 466 U.S. 668 (1984) ........................................ 10, 11, 14



                                                     Texas Cases

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005) ....................................19

Batiste v. State, 834 S.W.2d 460 (Tex. App.—Houston [14th Dist.] 1992) ......12

Batiste v. State, 888 S.W.2d 9 (Tex. Crim. App. 1994) ................................ 11, 12

Belcher v. State, 93 S.W.3d 593 (Tex. App.—Houston [14th Dist.] 2002, pet.
dism’d) ....................................................................................................................15

Bollman v. State, No. 02-08-061-CR, 2009 WL 161032 (Tex. App.—Fort Worth
Jan. 22, 2009, no pet.) (per curiam) (mem. op., not designated for
publication) ..................................................................................................... 19, 21

Carpenter v. State, 828 S.W.2d 441 (Tex. App.—Austin 1992, no pet.) ...........22

Ex parte Cockrell, 424 S.W.3d 543 (Tex. Crim. App. 2014) ................................14

Ex parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) ...........................11

Ex parte Sublett, No. AP-76945, 2013 WL 105178 (Tex. Crim. App. Jan. 9,
2013) ........................................................................................................................15



Appellant Thomas Leon Byrd’s PDR                                                                                      Page 5
Ex parte Wrigley, 178 S.W.3d 828 (Tex. Crim. App. 2005) ......................... 20, 21

Hill v. State, 213 S.W.3d 533 (Tex. App.—Texarkana 2007, no pet.) ..............22

Jimenez v. State, 634 S.W.2d 879 (Tex. App.—San Antonio 1982, pet. ref’d).22

McGown v. State, No. 10-12-092-CR, 2013 WL 5494676 (Tex. App.—Waco
Sept. 26, 2013, pet. ref’d) (mem. op., not designated for publication) ..........22

Wilson v. State, 854 S.W.2d 270 (Tex. App.—Amarillo 1993, pet. ref’d) ........22



                                               Texas Statutes

TEX. CODE CRIM. PROC. art. 42.08(a) ....................................................................19

TEX. GOV’T CODE § 508.150(b) ..............................................................................20



                                                      Rules

TEX. R. APP. P. 47.1.................................................................................................22

TEX. R. APP. P. 66.3 ................................................................................ 9, 17, 23, 24



                                                    Treatises

42 GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL
PRACTICE AND PROCEDURE § 29:78 (3d ed. 2011) ...............................................15



                                                      Rules

Justin F. Marceau, Embraicing a New Era of Ineffective Assistance of Counsel, 14
U PA. J. CONST. L. 1161 (2012) ..............................................................................16




Appellant Thomas Leon Byrd’s PDR                                                                              Page 6
                Statement Regarding Oral Argument
      Oral argument will aid the decisional process.       By granting oral

argument, counsel may answer questions posed by the judges regarding

the traditional Strickland test for ineffective assistance of counsel and the

extent to which it has been modified by the Supreme Court’s more recent

decision in Lafler. In addition, oral argument would allow counsel to

answer questions regarding the controlling statutes regarding parole and

how they impact a trial court’s attempt to order consecutive sentences for a

defendant currently on parole. For these reasons and to address any other

issues, Appellant respectfully requests the opportunity to appear and

present oral argument.

                           Statement of the Case

      A jury convicted Appellant under a 3-count indictment for: (1)

possession of cocaine; (2) possession of methamphetamine; and (3) evading

arrest or detention with a prior evading conviction. Appellant pleaded

“true” to enhancement and habitual allegations. The jury assessed his

punishment at 80 years’ imprisonment on the first count and 20 years’

imprisonment on the other counts. The trial court sentenced Appellant in

accordance with the verdict.

Appellant Thomas Leon Byrd’s PDR                                       Page 7
                     Statement of Procedural History

      The Waco Court of Appeals affirmed Appellant’s conviction in a

unanimous opinion authored by Justice Davis that was handed down

January 22, 2015. No motion for rehearing was filed.




                            Grounds for Review


      1.    Whether the prejudice standard for ineffective-assistance claims
            related to Batson challenges should be reconsidered in light of
            the Supreme Court’s decision in Lafler v. Cooper.

      2.    Whether a trial court may order a sentence to run consecutively
            with a future parole revocation.




Appellant Thomas Leon Byrd’s PDR                                      Page 8
                      Reasons for Granting Review

   The Court should grant discretionary review in this appeal because the

Waco Court of Appeals: (1) has issued a decision that conflicts with another

court of appeals’ decision; (2) has decided important questions of state and

federal law that have not been, but should be, settled by this Court; (3) has

decided important questions of state and federal law in a way that conflicts

with the applicable decisions of this Court and of the Supreme Court of the

United States; (4) has misconstrued article 42.08(a) of the Code of Criminal

Procedure and section 508.150 of the Government Code; and (5) has so far

departed from the accepted and usual course of judicial proceedings as to

call for an exercise of this Court's power of supervision. TEX. R. APP. P.

66.3.




Appellant Thomas Leon Byrd’s PDR                                       Page 9
                                   Argument


1.    Whether the prejudice standard for ineffective-assistance claims
      related to Batson challenges should be reconsidered in light of the
      Supreme Court’s decision in Lafler v. Cooper.


      Appellant asserted before the court of appeals that he received

ineffective assistance of trial counsel due to counsel’s failure to timely raise

a Batson challenge. That court assumed that Batson error was established

but relied on this Court’s decision in Batiste to hold that Appellant had

failed to show prejudice because he failed to show that any of the

improperly struck jurors would have voted to acquit. The court of appeals

thus rejected Appellant’s assertion that prejudice may be established by

other means. In Lafler, the Supreme Court of the United States adopted a

more expansive prejudice standard. Batiste and similar cases should be

reconsidered in light of Lafler.

The Strickland Standard

      The Sixth Amendment right to counsel includes a right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).

An appellant claiming ineffective assistance must first establish that trial



Appellant Thomas Leon Byrd’s PDR                                         Page 10
counsel’s representation fell below an objective standard of reasonableness.

Strickland, 466 U.S. at 687-88; Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex.

Crim. App. 2011). Next, the appellant “must demonstrate that he was

prejudiced by his attorney’s performance.” Niswanger, 335 S.W.3d at 615

(quoting Strickland, 466 U.S. at 694). According to Strickland, an appellant

establishes prejudice by showing “that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694.

This Court Held in Batiste That Some Showing of Prejudice is Required

       Consistent with Strickland, this Court held that a defendant must

show prejudice to prevail on an ineffective-assistance claim premised on

counsel’s failure to pursue a timely Batson challenge. Batiste v. State, 888

S.W.2d 9, 17 (Tex. Crim. App. 1994). However, the Court did not address

precisely what that showing should be. In so doing, the Court perhaps

tacitly approved the prejudice standard adopted by the Fourteenth Court,

namely, “Appellant must prove that the black jurors struck, merely by

virtue of their skin color, would have rendered a different verdict.” Batiste


Appellant Thomas Leon Byrd’s PDR                                      Page 11
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). But this Court did not expressly adopt

this standard.

Lafler Modified the Formula for Determining Prejudice

      In Lafler, the Supreme Court addressed the appropriate standard for

determining prejudice when a defendant received ineffective assistance of

trial counsel due to counsel’s provision of incorrect legal advice which

caused the defendant to reject a plea offer. See Lafler v. Cooper, 132 S.Ct.

1376, 1383 (2012). The Sixth Circuit held that Cooper was prejudiced

because counsel’s incorrect advice caused him to “los[e] out on an

opportunity to plead guilty and receive the lower sentence that was offered

to him.” Cooper v. Lafler, 376 F. App’x 563, 573 (6th Cir. 2010).

      Before the Supreme Court, the State of Michigan argued that: (1) the

“sole purpose” of the Sixth Amendment right to effective assistance of

counsel “is to protect the right to a fair trial [on the merits]” without regard

to errors that occur before trial; Lafler, 132 S.Ct. at 1385; (2) a defendant

cannot prevail on an ineffective assistance claim without showing that it

resulted in “his being denied a substantive or procedural right”; Id. at 1386;

and (3) the right to effective assistance of counsel is designed “to ensure


Appellant Thomas Leon Byrd’s PDR                                         Page 12
‘the reliability of [a] conviction following trial.’” Id. at 1387. The Supreme

Court rejected each of these assertions.

      “The constitutional rights of criminal defendants,” the Court
      observed, “are granted to the innocent and the guilty alike.
      Consequently, we decline to hold either that the guarantee of
      effective assistance of counsel belongs solely to the innocent or
      that it attaches only to matters affecting the determination of
      actual guilt.” The same logic applies here. The fact that
      respondent is guilty does not mean he was not entitled by the
      Sixth Amendment to effective assistance or that he suffered no
      prejudice from his attorney’s deficient performance during plea
      bargaining.

Id. at 1388 (quoting Kimmelman v. Morrison, 477 U.S. 365, 380 (1986))

(citation omitted). Or as the Court observed in a companion case issued the

same day, “[I]t is insufficient simply to point to the guarantee of a fair trial

as a backstop that inoculates any errors in the pretrial process.” Missouri v.

Frye, 132 S.Ct. 1399, 1407 (2012).

      Several lessons may be drawn from Lafler and Frye. First, ineffective

assistance claims may be raised with regard to deficient representation by

trial counsel with regard to pretrial matters. Second, the fact that the

defendant ultimately received a trial on the merits that was not otherwise

impacted by counsel’s deficient performance does not preclude a finding of




Appellant Thomas Leon Byrd’s PDR                                         Page 13
prejudice. And third, the fact that the defendant is in fact guilty does not

preclude a finding of prejudice.

This Court Has Modified the Prejudice Standard in Response to Lafler

       Last year in Ex parte Cockrell, this Court revisited the prejudice

standard in a case in which a severely hearing-impaired defendant claimed

he received ineffective assistance of counsel due to counsel’s failure to

request an interpreter. Ex parte Cockrell, 424 S.W.3d 543, 543 (Tex. Crim.

App. 2014). The Court concluded that Cockrell suffered prejudice because

he “could not understand a substantial portion of the proceedings at his

jury trial, and, therefore, could not adequately participate in his own

defense during trial.” Id. at 555.

       We hold that, by failing to assert applicant’s rights to an
       interpreter to ensure that he could understand the testifying
       witnesses and participate in his own defense during a
       substantial portion of the trial, the result of this proceeding is
       unreliable because of “a breakdown in the adversarial process
       that our system counts on to produce just results.”

Id. at 557 (quoting Strickland, 466 U.S. at 696) (citing Lafler, 132 S.Ct. at 1388-

89).




Appellant Thomas Leon Byrd’s PDR                                           Page 14
There are Other Recognized Prejudice Standards Besides the Outcome-
Focused Approach

      Professors Dix and Schmolesky have suggested that the requisite

prejudice may be shown where trial counsel’s deficient performance

“deprived the defendant of an important procedural opportunity.”          42

GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL

PRACTICE AND PROCEDURE § 29:78 (3d ed. 2011).

      Thus, the Fourteenth Court has found prejudice where defense

counsel failed to properly calculate the deadline for filing a motion for new

trial. See Belcher v. State, 93 S.W.3d 593, 600 (Tex. App.—Houston [14th

Dist.] 2002, pet. dism’d).

      This Court regularly finds prejudice where a defendant is deprived of

the right to appeal due to ineffective assistance of counsel. In such cases,

the Court grants an out-of-time appeal without regard to the potential

merits of the appeal because the defendant has been deprived of his right

to appeal. See, e.g., Ex parte Sublett, No. AP-76945, 2013 WL 105178 (Tex.

Crim. App. Jan. 9, 2013).

      Following Lafler, the Sixth Circuit has concluded that a defendant is

prejudiced if his trial counsel fails to adequately preserve a Batson



Appellant Thomas Leon Byrd’s PDR                                      Page 15
challenge. That court recognized that, if the Batson challenge had been

properly asserted, the trial court would have been required to summon a

different venire. Drain v. Woods, No. 12-2571, 2014 WL 7398899, at *23 (6th

Cir. Dec. 31, 2014). Thus, the court concluded that the defendant was

prejudiced because counsel’s deficient performance was an “error that

infect[ed] the entire trial with an unconstitutional taint.” Id.

      Other commentators have likewise agreed that Lafler changes the

calculus with regard to the prejudice determination when trial counsel

failed to timely or properly assert a Batson challenge. See, e.g., Justin F.

Marceau, Embraicing a New Era of Ineffective Assistance of Counsel, 14 U PA. J.

CONST. L. 1161, 1193-99 (2012).

This Court Should Address the Extent to Which Lafler Has Altered the
Prejudice Analysis in Cases in Which Defense Counsel Failed to
Properly Assert a Batson Challenge

      At a minimum, the Supreme Court’s decision in Lafler calls into

question what showing of prejudice a defendant must make when the

record establishes that his trial counsel failed to properly raise a Batson

challenge. Other courts and commentators have concluded that prejudice is

shown by the trial court’s failure to impanel a different venire (which is the

remedy mandated by article 35.261(b) of the Code of Criminal Procedure


Appellant Thomas Leon Byrd’s PDR                                        Page 16
for Batson violations). This Court should grant review and determine the

extent to which Lafler has modified the prejudice standard in such cases.

The Court Should Grant Review on This Issue

      The Court should grant review of this issue for two of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The Waco Court has effectively decided an important question of

federal law that has not been, but should be, settled by this Court, namely

whether Lafler has modified the prejudice standard for ineffective-

assistance claims related to Batson challenges. Id. 66.3(b).

      The Waco Court’s decision conflicts with the applicable decisions of

the Supreme Court of the United States, namely Lafler and Frye. Id. 66.3(c).

      For both reasons, this Court should grant this ground for

discretionary review.




Appellant Thomas Leon Byrd’s PDR                                      Page 17
2.    Whether a trial court may order a sentence to run consecutively
      with a future parole revocation.


      At the request of the State’s attorney, the trial court ordered

Appellant’s sentences in this case to run consecutively with a 2008 sentence

for which he was on parole at the time of the offenses. There is no evidence

in the record that Appellant’s parole had been revoked at the time of

sentencing.       Thus, the cumulation provisions effectively ordered

Appellant’s current sentences to run consecutively with some future

sentence. Instead of addressing the merits of Appellant’s challenge, the

Waco Court merely observed that appellate courts have previously

affirmed similar orders. Thus, the Waco Court failed to fully address the

issue raised, which was necessary for a final disposition of the appeal.

Article 42.08(a) Governs Consecutive Sentences

      Article 42.08(a) of the Code of Criminal Procedure provides in

pertinent part:

      When the same defendant has been convicted in two or more
      cases, judgment and sentence shall be pronounced in each case
      in the same manner as if there had been but one conviction.
      Except as provided by Sections (b) and (c) of this article, in the
      discretion of the court, the judgment in the second and
      subsequent convictions may either be that the sentence


Appellant Thomas Leon Byrd’s PDR                                       Page 18
      imposed or suspended shall begin when the judgment and the
      sentence imposed or suspended in the preceding conviction has
      ceased to operate, or that the sentence imposed or suspended
      shall run concurrently with the other case or cases, and
      sentence and execution shall be accordingly.

TEX. CODE CRIM. PROC. art. 42.08(a).

      The record must contain some evidence regarding the prior

conviction and evidence connecting the defendant to that conviction to

support a cumulation order. Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim.

App. 2005).

      The statute does not authorize a trial court to order a sentence to run

consecutively with a sentence that the defendant may begin serving at

some unknown point in the future. Bollman v. State, No. 02-08-061-CR, 2009

WL 161032, at *5 (Tex. App.—Fort Worth Jan. 22, 2009, no pet.) (per

curiam) (mem. op., not designated for publication).

Section 508.150 of the Government Code Addresses When a Sentence
Ceases to Operate for Purposes of Consecutive Sentences

      Section 508.150(b) provides:

      For the purposes of Article 42.08, Code of Criminal Procedure,
      the judgment and sentence of an inmate sentenced for a felony,
      other than the last sentence in a series of consecutive sentences,
      cease to operate:




Appellant Thomas Leon Byrd’s PDR                                       Page 19
              (1) when the actual calendar time served by the inmate
              equals the sentence imposed by the court; or

              (2) on the date a parole panel designates as the date the
              inmate would have been eligible for release on parole if
              the inmate had been sentenced to serve a single sentence.

TEX. GOV’T CODE § 508.150(b).

      This Court has construed section 508.150(b) to mean a defendant’s

sentence “ceases to operate” under article 42.08(a) when the defendant is

released on parole. Ex parte Wrigley, 178 S.W.3d 828, 830-31 (Tex. Crim.

App. 2005).

The San Antonio Court Approved the Stacking of a New Sentence on a
Future Parole Revocation

      In Jimenez, the San Antonio court held that a cumulation order like

the one at issue in the present case was proper because “[p]arole is

essentially    a   constructive     confinement.       Release     from     prison    for

rehabilitation purposes does not mean release from the operation of the

judgment and sentence in that cause.” Jimenez v. State, 634 S.W.2d 879, 881

(Tex. App.—San Antonio 1982, pet. ref’d).1




1
      This interpretation appears to be in conflict with this Court’s holding in Wrigley.


Appellant Thomas Leon Byrd’s PDR                                                  Page 20
       However, this does not adequately or correctly resolve the issue.

Under section 508.150(b), the sentence of a defendant on parole has already

ceased to operate. Thus, a subsequent sentence for such a defendant cannot

be “stacked” on the sentence for which a defendant has been released on

parole unless or until his parole is revoked. Cf. Wrigley, 178 S.W.3d at 830-

31 (sentence of defendant who was on parole could not be ordered to

commence from date he was released on parole because defendant must be

actually serving sentence at time of “subsequent” sentence for court to

order consecutive sentences).2

       Therefore, when article 42.08(a), section 508.150(b) and Wrigley are

read together, Appellant contends that a trial court cannot order

consecutive sentences for a defendant who was on parole at the time of the

offense unless: (1) his parole has been revoked before sentencing; and (2)

the State presents some evidence that his parole was revoked. Cf. Bollman,

2009 WL 161032, at *5 (sentence cannot be ordered to run consecutively

“with sentences he may receive in the future”).


2
        In Wrigley, the defendant’s sentence was ordered to run from the date his parole was
revoked (which occurred before he was sentenced in the new case). See Ex parte Wrigley, 178
S.W.3d 828, 831 (Tex. Crim. App. 2005). This Court thus rejected the defendant’s contention
that his sentence should be “back-dated” to the date he had been released on parole.



Appellant Thomas Leon Byrd’s PDR                                                    Page 21
      Notwithstanding these authorities, the Waco Court and others have

followed Jimenez though none of them has addressed the merits of the

complaint raised by Appellant. See, e.g., McGown v. State, No. 10-12-092-

CR, 2013 WL 5494676, at *9 (Tex. App.—Waco Sept. 26, 2013, pet. ref’d)

(mem. op., not designated for publication); Hill v. State, 213 S.W.3d 533, 538

(Tex. App.—Texarkana 2007, no pet.) (“A trial court has the authority to

stack a new sentence onto a prior sentence for which the defendant is then

on parole.”).

      The Texarkana Court cited other decisions that have reached similar

conclusions, but none of them explained how a trial court can order a

sentence to run consecutively with a sentence that has not (and may not) be

imposed (if parole is not revoked). See id. (citing Wilson v. State, 854 S.W.2d

270, 273 (Tex. App.—Amarillo 1993, pet. ref’d); Carpenter v. State, 828

S.W.2d 441, 442 (Tex. App.—Austin 1992, no pet.); Jimenez, 634 S.W.2d at

881–82).

The Waco Court Failed to Address the Merits of Appellant’s Complaint

      Under Rule of Appellate Procedure 47.1, an appellate court must

address “every issue raised and necessary to final disposition of the

appeal.” TEX. R. APP. P. 47.1.


Appellant Thomas Leon Byrd’s PDR                                        Page 22
      The Waco Court purported to address the issue Appellant raised, but

as explained the Waco Court failed to address the merits of the issue

presented, which had not been addressed in McGown or any of the other

cases cited.

      As can be seen from the cited cases, trial courts regularly order

sentences to run consecutively with sentences for which a defendant is on

parole. But that does not mean that this practice is proper under the law.

This Court should grant review of this issue to determine whether a trial

court may do so in the absence of evidence that the defendant’s parole has

been revoked.

The Court Should Grant Review

      The Court should grant review of this issue for most of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

      The Waco Court’s decision appears to conflict with the decision of the

Fort Worth Court in Bollman; Id. 66.3(a).

      The issue of whether a sentence may be ordered to run consecutively

with a sentence for which the defendant is on parole constitutes an

important question of state law that has not been, but should be, settled by

this Court. Id. 66.3(b).


Appellant Thomas Leon Byrd’s PDR                                     Page 23
      The Waco Court’s decision appears to conflict with the applicable

decisions of this Court, namely, Wrigley. Id. 66.3(c).

      The Waco Court’s decision appears to be based on that court’s

improper construction of article 42.08 and section 508.150. Id. 66.3(d).

      The Waco Court’s decision so far departs from the accepted and

usual course of judicial proceedings as to call for an exercise of this Court’s

power of supervision, particularly insofar as the Waco Court failed to

address the merits of the complaint. Id. 66.3(f).

      For each of these reasons, this Court should grant this ground for

discretionary review.




Appellant Thomas Leon Byrd’s PDR                                        Page 24
                                   Prayer

      WHEREFORE, PREMISES CONSIDERED, Appellant Thomas Leon

Byrd asks the Court to: (1) grant review on the issues presented in this

petition for discretionary review; and (2) grant such other and further relief

to which he may show himself justly entitled.

                                          Respectfully submitted,



                                            /s/ Alan Bennett
                                          E. Alan Bennett
                                          SBOT #02140700
                                          Counsel for Appellant

                                          Sheehy, Lovelace & Mayfield, P.C.
                                          510 N. Valley Mills Dr., Ste. 500
                                          Waco, Texas 76710
                                          Telephone:        (254) 772-8022
                                          Fax:        (254) 772-9297
                                          Email:      abennett@slmpc.com




Appellant Thomas Leon Byrd’s PDR                                       Page 25
                       Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 4,071

words.



                                          /s/ Alan Bennett
                                        E. Alan Bennett


                            Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this

brief was served electronically on February 23, 2015 to: (1) counsel for the

State, Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the

State Prosecuting Attorney, lisa.mcminn@SPA.texas.gov.



                                          /s/ Alan Bennett
                                        E. Alan Bennett




Appellant Thomas Leon Byrd’s PDR                                     Page 26
                                   Appendix



Opinion of Waco Court of Appeals:

      Byrd v. State, No. 10-13-00381-CR, 2015 WL 294674 (Tex. App.—Waco
      Jan. 22, 2015, pet. filed)




Appellant Thomas Leon Byrd’s PDR                                 Page 27
                                 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
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