Gregorio Barrientes, III v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00627-CR

Gregorio BARRIENTES, III,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-2754

Honorable Mary Rom n, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 7, 2005

AFFIRMED

Gregorio Barrientes, III appeals the trial court s judgment convicting him of aggravated robbery with a deadly weapon and sentencing him to ninety-nine years in the Texas Department of Criminal Justice Institutional Division. We affirm the trial court s judgment.

1. Barrientes first argues the trial court erred under the Confrontation Clauses of both the state and federal constitutions, as well as the Texas Rules of Evidence, in admitting into evidence at the punishment phase a transcript of Anita Aguirre s testimony from one of Barrientes s previous trials because the State failed to make a good faith effort to procure Aguirre s attendance at trial. We disagree. Any error in admitting Aguirre s testimony was harmless; beyond a reasonable doubt, it neither contributed to Barrientes s punishment nor affected a substantial right. See Dewberry v. State, 4 S.W.3d 735, 758 (Tex. Crim. App. 1999) (holding that, even if defendant s rights under Confrontation Clause were violated by admission of inadmissible hearsay, he could not establish he was harmed), cert. denied, 529 U.S. 1131 (2000); see also Tex. R. App. P. 44.2(a) and (b).

Barrientes implies the jury assessed the maximum punishment available because of Aguirre s testimony that Barrientes twice robbed her at gunpoint while she was working. Yet, other than the fact that Barrientes robbed Aguirre twice, her testimony is no more remarkable than the testimony that, during an approximately three-week span, Barrientes also robbed eight other individuals at gunpoint. Indeed, Aguirre s testimony pales in comparison to that of Rosalia Austin, who testified Barrientes shot at her, missed because she ducked, and then tried to shoot her again but could not because his gun malfunctioned. In short, it was not Aguirre s testimony that prompted the jury to assess a ninety-nine year sentence; it was the fact that Barrientes is a serial robber who has no qualms about using his gun.2.Barrientes next argues the trial court erred in cumulating the sentence in this case with the sentence in Cause No. 2003-CR-2750 because the judgment in this case is not sufficiently specific to permit the Texas Department of Criminal Justice Institutional Division to identify the previous conviction. We again disagree.

A cumulation order should be sufficiently specific to allow the Texas Department of Criminal Justice Institutional Division ... to identify the prior with which the newer conviction is cumulated. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998). When, as here, the same court sentences the defendant in both causes, the cumulation order is sufficient if it merely references the previous cause number. Hamm v. State, 513 S.W.2d 85, 86-87 (Tex. Crim. App. 1974); Ex parte Davis, 506 S.W.2d 882, 883-84 (Tex. Crim. App. 1974). This requirement is met here by the statement in the judgment that the ninety-nine year sentence in this case is to be served upon completion of defendant s sentence in 2003cr2750. Cases to run consecutive.

Barrientes nonetheless argues that the trial court s cumulation order is insufficient because neither the court s oral pronouncement nor its written judgment states that the prior conviction is from the same court. However, it is unnecessary for the cumulation order to contain anything other than the cause number of the previous conviction if the record contains evidence that the same court presided over the previous and subsequent convictions. See Edwards v. State, 106 S.W.3d 833, 846 (Tex. App. Dallas 2003, pet. ref d); Faison v. State, 59 S.W.3d 230, 238 (Tex. App. Tyler 2001, pet. ref d). This requirement is met here because the State reminded the trial judge at the sentencing hearing that she rendered the judgment in the previous case. Barrientes also contends that because he received different punishments in his previous conviction and because the court did not specifically spell out these punishments in its cumulation order, the Department cannot determine the term of Barrientes s sentence. However, this level of specificity is not required. As happened here, all that is required is that the order be specific enough to identify the prior conviction contemplated by the trial court. See Ex parte San Migel, 973 S.W.2d at 311.The trial court s judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish