                                    NO. 07-01-0431-CR
                                    NO. 07-01-0432-CR
                                    NO. 07-01-0433-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                        MAY 9, 2002

                          ______________________________


                           DERRICK L. SALTER, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 209TH DISTRICT COURT OF HARRIS COUNTY;

   NOS. 815665, 815666, 815667; HONORABLE MICHAEL MCSPADDEN, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In this consolidated appeal, appellant Derrick L. Salter challenges three convictions

asserting a single point of error. He argues he was denied reasonably effective assistance

of counsel in violation of his Sixth Amendment constitutional right to such assistance. His

argument is based on his trial attorney’s failure to object to the trial court’s statements to
the jury panel regarding whether any sentences would run concurrently or consecutively.

We affirm.


      A brief recitation of the facts of the underlying offenses is helpful to understand the

issue presented. In the early evening of December 31, 1998, David Bodden (Bodden) and

Beatriz Casas (Casas), coworkers at Ace Cash Express, were just leaving work when they

were approached by two masked and armed men. The men forced both employees into

Casas’s car, drove away from the store and said they intended to rob the store. They

obtained a store key and safe combination from the victims and returned to the store. The

men threatened both employees with injury.


      Bodden suggested that he enter the store and open the safe. Once inside, Bodden

locked the door and called the police. The men left with Casas, taking Bodden’s car,

which contained his wallet and mobile phone. Casas was transferred to a station wagon,

where she was raped by one of the men while the other drove the car. She was released

naked in a field and made her way to a nearby house. Using telephone records for calls

made from Bodden’s mobile phone that night and DNA evidence obtained from Casas,

police identified appellant, arrested him and charged him with aggravated robbery,

aggravated kidnapping, and aggravated sexual assault.


      Appellant pled not guilty in each case and all three cases were tried jointly to a jury

in May 2001. The jury rejected the testimony of appellant’s alibi witnesses and convicted

him of all three offenses. The jury assessed punishment at confinement for 40 years for


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the sexual assault, 25 years for kidnapping, and 25 years for the robbery. The judgment

in each case recites that the sentence is to be served concurrently with any other

sentence. Appellant filed a timely notice of appeal and now asserts a single point of error

in challenge of each conviction.


       Appellant’s complaint is based on trial counsel’s failure to object to the trial court’s

response to a question from a member of the venire inquiring whether the sentences

imposed in each case would be cumulative or not. He argues this single error amounted

to ineffective assistance of counsel.


       The standard by which we are to review claims of ineffectiveness of trial counsel is

that set out in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v.

State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to show that trial counsel was

ineffective, a claimant must establish two elements: 1) his counsel’s performance was

deficient, and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S.

at 687.


       The first component is met by showing that trial counsel made errors so significant

that he was not functioning as the counsel guaranteed by the Sixth Amendment to the

United States Constitution. Id. The second component necessitates a showing that

counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Id. A claimant must show that, but for counsel’s errors, the result


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of the proceeding would have been different. Id. at 694. A reasonable probability is one

sufficient to undermine confidence in the outcome. Id. When reviewing a claim of

ineffective assistance, we indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance. Jackson v. State, 877 S. W.2d 768,

771 (Tex.Crim.App. 1994). The defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy. Id. The

defendant asserting ineffective assistance must present a record with evidence of the

reason/reasons that the alleged ineffective assistance actions or omissions were not trial

strategy. The defendant must prove that counsel's errors, judged by the totality of the

representation and not by isolated instances of error or by only a portion of trial, denied

him a fair trial. Strickland, 466 U.S. at 695.


       As noted above, during voir dire, a venire member asked whether any sentences

would be served consecutively or not. The prosecutor responded that it was not an issue

for the jury’s consideration and should not be considered. The court also stated it was not

a factor to be considered by the jury and the issue would be decided by the court. No

objection was made to the response of the prosecutor or the court. During deliberations,

the jury sent out a note posing the same question. The court responded that it would make

that decision.


       Appellant now contends the responses provided during voir dire misstated the

applicable law set out in section 3.03 of the Penal Code, which requires sentences



                                                 4
imposed in joint trials to be served concurrently subject to specific exceptions. In support

he cites Haliburton v. State, 578 S.W.2d 726 (Tex.Crim.App. 1979), which held it was not

an abuse of discretion for a court to instruct a jury that sentences in a joint trial would be

served concurrently. Id. at 729. We do not agree this holding supports appellant’s

conclusion that the failure to give such an instruction is error. A footnote by Judge Clinton

in Gordon v. State, 633 S.W.2d 872 (Tex.Crim.App. 1982), offers support for withholding

such an instruction on the rationale that it is not a proper issue for the jury to consider. Id.

at 879, n.16. Under the applicable case law, we cannot agree that the failure to object was

deficient performance.


       Moreover, appellant has failed to overcome the presumption that counsel’s decision

not to object was sound trial strategy. By allowing the jury to believe the sentences may

be served sequentially, rather than concurrently, trial counsel may have felt that the jury

would be less likely to impose punishment near the maximum for each offense. While we

may not speculate as to the jury’s mental process in reaching its verdict, trial counsel may,

and it is appellant’s burden to show the decision could not be the result of sound trial

strategy. Appellant has failed to establish that trial counsel’s performance was deficient.

We need not consider the second prong of the test set out in Strickland. We overrule

appellant’s sole issue and affirm the judgments of the trial court.



                                                   John T. Boyd
                                                    Chief Justice



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Do not publish.




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