Baxter Barthadomus Tolliver Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 12, 2023
• Docket: 09-21-00291-CR
• Status: Published

Opinion

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.