                                 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
