Baxter Barthadomus Tolliver Jr. v. the State of Texas ( 2023 )


Menu:
  •                                      In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ________________
    NO. 09-21-00291-CR
    NO. 09-21-00292-CR
    ________________
    BAXTER BARTHADOMUS TOLLIVER JR., Appellant
    V.
    THE STATE OF TEXAS, Appellee
    ________________________________________________________________________
    On Appeal from the 260th District Court
    Orange County, Texas
    Trial Cause Nos. D200054-R, D210216-R
    ________________________________________________________________________
    MEMORANDUM OPINION
    Appellant Baxter Barthadomus Tolliver Jr. 1 challenges the trial court’s
    stacking his punishment in the two judgments from which he appeals. In Trial Court
    Cause Number D200054-R Tolliver was convicted of aggravated assault. 
    Tex. Penal Code Ann. § 22.02
    (a)(2). In Trial Court Cause Number D210216-R, he was
    1
    Appellant’s middle name is sometimes spelled “Barthodamus” in the
    appellate record.
    1
    convicted of being a felon in possession of a firearm. 
    Tex. Penal Code Ann. § 46.04
    (e). In both cases, the trial court ordered Tolliver’s sentences to begin running
    after he completed serving his five-year sentence on another case on which he had
    already been convicted, Trial Court Cause Number D210177-R, a judgment
    pronounced in the 260th District Court of Orange County, Texas on July 15, 2021.
    Tolliver argues the stacking orders should be overturned because the State failed to
    prove he was the same person convicted in the case on which the two convictions
    from which he appeals were stacked, his conviction in Trial Court Cause Number
    D210177-R. We affirm.
    I. Background
    The trial court sentenced Tolliver on his convictions for aggravated assault
    and for possessing a firearm as a felon on September 1, 2021, seven weeks after
    sentencing him to a five-year term in Trial Court Cause Number D210177-R. The
    record shows a presentence investigation report was prepared in Trial court Cause
    Number D210177-R, and the Reporter’s Record from the consolidated sentencing
    hearing the trial court conducted on Tolliver’s convictions for aggravated assault and
    for possessing a firearm was before the court in the hearing.
    During the consolidated sentencing hearing, the trial court not only asked both
    counsel whether they needed to add to or object to the content of that report, which
    they did not, it sought and obtained counsel’s agreement that it was unnecessary to
    2
    prepare a new report. In addition, the trial court read portions of the report into the
    record, commented on Tolliver’s “escalating pattern of violence,” and asked Tolliver
    whether the passages in question were excerpted from “the presentence investigation
    report for the first case you have, Mr. Tolliver.” Tolliver answered: “Yes, sir.”
    At no time during the sentencing hearing did Tolliver’s counsel suggest that
    the presentence investigation report discussed in the hearing concerned a person
    other than Tolliver. To the contrary, Tolliver’s counsel told the trial court: “We’ve
    had a hearing previous to this date, which is why the Court has not ordered a new
    P.S.I. So, we would again rest on that P.S.I. and in the testimony that was elected in
    that particular hearing from Mr. Tolliver’s aunt.”
    II. Standard of Review
    The legislature has given trial courts the discretion to cumulate a defendant’s
    sentence. See Tex. Code. Crim. Proc. Ann. art. 42.08(a). Like the assessment of an
    individual punishment, a trial court’s decision to cumulate under article 42.08(a) is
    “a normative, discretionary function that does not turn on discrete findings of
    fact.” Barrow v. State, 
    207 S.W.3d 377
    , 380 (Tex. Crim. App. 2006). If a trial court
    lawfully exercises the option to cumulate, that decision is unassailable on appeal. 
    Id. at 381
    . But when a trial court unlawfully orders cumulation in a case that did not
    involve a negotiated plea agreement, the appellate court should reform the judgment
    by deleting the order. Beedy v. State, 
    250 S.W.3d 107
    , 110 (Tex. Crim. App. 2008).
    3
    III. Analysis
    As Tolliver has correctly noted, ordering a new sentence to run consecutive
    to a previous sentence requires evidence of the earlier conviction and evidence that
    the defendant’s identity is the same as the person previously convicted. See Barela
    v. State, 
    180 S.W.3d 145
    , 148 (Tex. Crim. App. 2005). That evidence, however, need
    not take the form of certified documents bearing the defendant’s fingerprints;
    instead, it may consist of undisputed statements of the parties’ attorneys and the
    defendant’s admissions. See Mungaray v. State, 
    188 S.W.3d 178
    , 183-84 (Tex.
    Crim. App. 2006).
    In Mungaray, our Court of Criminal Appeals reinstated the trial court’s
    judgment imposing consecutive sentences, holding that despite the State’s failure to
    present evidence as to the cause and court numbers, the “appellant’s and his lawyer’s
    admissions together with the other evidence and information in [the] record
    sufficiently establish that appellant had the prior . . . conviction as set out in the trial
    court’s cumulation order.” 
    Id.
     Here, as in Mungaray, the evidence is sufficient to
    show that Tolliver is the person convicted in Trial Court Cause Number D210177-
    R, the previous judgment on which the judgments Tolliver appeals are stacked. Not
    only did Tolliver fail to dispute that he was the person convicted in Trial Court Cause
    D210177-R when the trial court pronounced the stacked sentences, he relied on the
    4
    same presentence investigation report prepared in the sentencing hearing in the
    260th District Court just weeks earlier in that cause.
    Because the trial court had before it “some evidence that link[ed] [Appellant]
    to the prior conviction[,]” the trial court did not err in issuing its cumulation order.
    See Tex. Code. Crim. Proc. Ann. art. 42.08(a); Miller v. State, 
    33 S.W.3d 257
    , 261
    (Tex. Crim. App. 2000).
    Tolliver’s sole point of error is overruled.
    IV. Conclusion
    Because the evidence before the trial court was sufficient to establish that
    Appellant was the same person who previously was convicted in cause number
    D210177-R in the 260th District Court of Orange County, Texas, the trial court’s
    cumulation orders are supported by sufficient evidence. The trial court’s judgments
    are
    AFFIRMED.
    ________________________________
    JAY WRIGHT
    Justice
    Submitted on September 22, 2022
    Opinion Delivered April 12, 2023
    Do Not Publish
    Before Horton, Johnson and Wright, JJ.
    5
    

Document Info

Docket Number: 09-21-00291-CR

Filed Date: 4/12/2023

Precedential Status: Precedential

Modified Date: 4/14/2023