Baxter Barthadomus Tolliver Jr. v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00291-CR
NO. 09-21-00292-CR
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BAXTER BARTHADOMUS TOLLIVER JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 260th District Court
Orange County, Texas
Trial Cause Nos. D200054-R, D210216-R
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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
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Appellant’s middle name is sometimes spelled “Barthodamus” in the
appellate record.
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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
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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).
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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
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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.
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JAY WRIGHT
Justice
Submitted on September 22, 2022
Opinion Delivered April 12, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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