It is not necessary that a certified copy of a prior conviction be admitted into evidence to support a request for a cumulative sentence. See Mungaray v. State, 188 S.W.3d 178, 184 (Tex. Crim. App. 2006); see also Willams v. State, No. 10-10-00140-CR, 2010 WL 3503939, at *1 (Tex. App.—Waco Sept. 8, 2010, pet. ref'd) (mem. op., not designated for publication). There must be "some evidence" of a prior conviction and that the defendant was the person convicted, but "some evidence" may consist of testimony, admissions, and uncontested assertions by the State that a defendant has been previously convicted.
The State may establish these facts in a variety of ways, such as through live testimony, admissions, and oral stipulations. Montgomery v. State, 876 S.W.2d 414, 416 (Tex. App.—Austin 1994, pet. ref'd) (per curiam); see also Mungaray v. State, 188 S.W.3d 178, 183 (Tex. Crim. App. 2006) (holding that admissions by appellant and her lawyer and undisputed admissions by the State was enough evidence to connect appellant to prior conviction and support a trial court's cumulation order). C. Analysis
Absent a certified copy of the prior judgment and accompanying testimony, the State may link the defendant to a prior conviction by live direct testimony, defendant's or defense counsel's admissions, and/or the State's uncontested utterances. Derrick v. State, 223 S.W.3d 501, 502 (Tex. App.-Amarillo 2006, no pet.) (citing Mungaray v. State, 188 S.W.3d 178, 183 (Tex. Crim. App. 2006)). In Derrick v. State, the Amarillo court of appeals found no abuse of discretion where the trial court cumulated federal and state sentences.
" it appears clear that all the participants understood which "other cases" the trial court was referring to. This situation is very similar toMungaray v. State wherein the trial court cumulated the appellant's sentence after learning that he had been sentenced in another county but failed to orally specify the prior conviction sufficiently. See Mungaray v. State, 188 S.W.3d 178, 182 (Tex.Crim.App. 2006). In Mungaray, the trial court cumulated the defendant's sentences by ordering the sentences to "run consecutively with the 99-year sentence imposed in Gains [sic] County, Texas, arising out of the same criminal episode."
Although this Court has never expressly held that sufficiency challenges to a cumulation order need not be preserved for appeal, we have implicitly applied that standard by reviewing the merits of those complaints even when they were not preserved at trial. See Mungaray v. State, 188 S.W.3d 178, 183–84 (Tex.Crim.App.2006) (deciding merits of appellant's challenge to sufficiency of evidence supporting cumulation order despite absence of trial objection to order); Miller v. State, 33 S.W.3d 257, 259 (Tex.Crim.App.2000) (same); Resanovich v. State, 906 S.W.2d 40, 41 (Tex.Crim.App.1995) (same). See also Holz v. State, 320 S.W.3d 344, 352 (Tex.Crim.App.2010) (explaining that, although testimony could raise issues of admissibility or sufficiency, “[i]n this case the issue is the sufficiency of the evidence, because that is the issue raised by the appellant.
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).
See, e.g., Miller v. State, 33 S.W.3d 257, 261 (Tex. Crim. App. 2000) ("[B]efore a judge may exercise his discretion to cumulate, he must be aware of a prior conviction."); see also Mungaray v. State, No. 05-03-00282-CR, 2004 WL 1662843, at *5 (Tex. App.-Dallas July 27, 2004) (op. on reh'g, not designated for publication), affd, 188 S.W.3d 178 (Tex. Crim. App. 2006).
If those two conditions are met, "the opposing party may be held to have adoptively admitted the assertion." Id.; see Mungaray v. State, 188 S.W.3d 178, 184 (Tex. Crim. App. 2006). After the State rested, the following exchange occurred regarding State's Exhibit 1:
s referenced as the cause number for the prior case by both defense counsel and the State during the trial and is referenced in the judgment in this case as the cause number to which the aggravated assault is to run consecutive; appellant's admissions about the prior offense when he testified during the punishment phase of the trial; the acknowledgments by the defense that appellant had been convicted of the prior aggravated assault and was going to serve at least ten years in prison for it; and evidence that the same trial judge and same counsel for both parties were present at the trial for the previous case only about five months before the trial in this case and that they discussed the previous case throughout trial without any suggestion from the defense that appellant was not the person convicted of the prior offense—we conclude that the record contains sufficient evidence to link appellant to the prior conviction for aggravated assault with a deadly weapon against McCann. See Mungaray v. State, 188 S.W.3d 178, 183-84 (Tex. Crim. App. 2006) (evidence was sufficient to link defendant to previous conviction for cumulation purposes where record included admissions of previous conviction by defense counsel and defendant, witness testimony about previous conviction, and undisputed assertions by State that defendant was convicted of previous offense); Miller, 33 S.W.3d at 262 (evidence was sufficient to link defendant to previous convictions in cumulated sentence where defense admitted that defendant was already serving time for previous convictions, defense was aware of previous convictions and corresponding cause numbers, and defense did not refute State's representations regarding previous convictions); Resanovich v. State, 906 S.W.2d 40, 43 (Tex. Crim. App. 1995) (defense counsel's admission of previous murder sentence was sufficient for cumulation purposes to identify defendant as person previously convicted). Because we conclude that the evidence is sufficient to link appellant to the prior conviction for aggravated ass
In Miller, the Texas Court of Criminal Appeals held that defense counsel's statements in open court admitting the defendant's prior convictions was sufficient evidence for the trial court to make the determination that Miller had been previously convicted of two felony offenses. Mungaray v. State, 188 S.W.3d 178, 184 (Tex.Crim.App.2006) (“In Miller, this Court decided that admissions by the defendant's lawyer that the defendant ‘was currently serving 30 years for two prior convictions' were also admissions that the defendant ‘indeed had the two prior convictions' set out in the State's motion to cumulate.”). Likewise, the statement of defense counsel here in open court to the trial judge that he had investigated the conviction and found that a mandate had issued from the Dallas Court of Appeals, while not an unchallengeable judicial admission or stipulation, was sufficient evidence on which the trial court could determine the finality of the conviction. Cooper's testimony provides some evidence to the contrary.