                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00140-CR

JOE SIDNEY WILLIAMS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-117-C2


                          MEMORANDUM OPINION


      Joe Sidney Williams appeals from his conviction for evading arrest or detention

in a motor vehicle, enhanced by a prior conviction for evading arrest in a motor vehicle

and a prior burglary conviction to a second degree felony for purposes of punishment.

TEX. PEN. CODE ANN. §§ 38.04; 12.42 (Vernon 2003). Based on the jury’s verdict on

punishment, the trial court sentenced Williams to imprisonment in the Texas

Department of Criminal Justice – Institutional Division for twenty (20) years and a fine

of $1,000.00. TEX. PEN. CODE ANN. 12.33 (Vernon 2003). Williams complains that the

evidence was insufficient for the trial court to have stacked his sentence on top of a
prior sentence assessed in the same trial court approximately one year before and that

the trial court abused its discretion by not admitting testimony from a prior trial in the

punishment phase of the trial. Because we find no error, we affirm the judgment of the

trial court.

Cumulative Sentences

        Williams complains that the trial court erred in its finding that the sentence

imposed in this cause should be served consecutively because there was no evidence

before the trial court regarding his prior sentence or that he was the same defendant

that was sentenced previously. Prior to trial, the State gave notice of its request to

cumulate the sentence in the event of a conviction. The notice included the information

on the prior conviction and sentence the State sought to be stacked.

        A trial court has the discretion to order that a defendant’s sentence does not

begin until the defendant’s sentence in a preceding conviction has ceased to operate.

See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon 2005). It is not necessary that a

certified copy of a prior conviction be admitted into evidence to support a request for a

cumulative sentence; however, there must be “some evidence” of a prior conviction and

that the defendant was the person convicted. Mungaray v. State, 188 S.W.3d 178, 184

(Tex. Crim. App. 2006); Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000).

        “Some evidence” may consist of admissions by the defendant’s lawyer,

testimony given during trial, admissions by the defendant, and undisputed assertions

by the State that a defendant has been previously convicted. See Mungaray, 188 S.W.3d



Williams v. State                                                                     Page 2
184; see also Miller, 33 S.W.3d at 262 (elements of “stacking” order can be established by

admissions of one party and undisputed assertions by other party).

        In the punishment phase of Williams’s trial, Williams sought to introduce a

transcript of testimony of a witness from his prior trial. The State objected to the

introduction of the transcript as hearsay and the trial court sustained that objection.

Williams later made an offer of proof outside of the presence of the jury during which

the previous cause number was presented to the trial court and the trial court noted that

the transcript was on file with this Court.1 During that discourse, the trial court took

judicial notice of that proceeding without objection by either Williams or the State. That

proceeding had also taken place in the same trial court.

        Additionally, the trial court allowed Williams to address the trial court outside of

the presence of the jury during the punishment phase. Williams acknowledged that he

had already been to trial for the charge that formed the basis of the stacking order.

        We find that there was some evidence of the prior conviction, and therefore, the

trial court’s cumulation of the sentences was not improper. We overrule issue one.

Improper Exclusion of Evidence

        Williams complains that the trial court abused its discretion by sustaining the

State’s objection to the admission of testimony from a witness from a prior trial

pursuant to rule 804(b)(1) of the Texas Rules of Evidence. In determining whether a




1The prior conviction was appealed to this Court in Cause Number 10-09-00227-CR, Joe Sidney Williams v.
State.

Williams v. State                                                                                Page 3
trial court erred in admitting or excluding evidence, the standard of review is for an

abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).

        Rule 804(b)(1) allows the introduction of testimony from a prior proceeding if a

witness is unavailable to testify and the opposing party had an “opportunity and

similar motive to develop the testimony by direct, cross, or redirect examination.” TEX.

R. EVID. 804(b). Williams offered the transcript of the testimony of a witness from his

prior trial during the punishment phase of the trial in response to the State’s evidence

relating to his prior criminal conduct. Williams offered the transcript into evidence as

his offer of proof, but made no reference to the witness’s unavailability.

        It is the burden of the proponent of testimony to establish that a witness is

“unavailable” as defined by Rule 804(a). For example, for purposes of Rule 804(a)(5),

the proponent of testimony must demonstrate that a good-faith effort was made prior to

trial to locate and present the witness. See Loun v. State, 273 S.W.3d 406, 420 (Tex.

App.—Texarkana 2008, no pet.); Reyes v. State, 845 S.W.2d 328, 331 (Tex. App.—El Paso

1992, no pet.).

        Here, the record is silent as to whether the witness is in fact unavailable, for what

reason she was unavailable, or what Williams had done to attempt to secure her

presence at trial. Because Williams did not establish that the witness was unavailable,

the trial court did not abuse its discretion in sustaining the State’s objection to the

testimony. We overrule issue two.




Williams v. State                                                                      Page 4
Conclusion

        We find that the trial court did not err in cumulating Williams’s sentence with

his prior conviction. Further, we find that the trial court did not abuse its discretion in

its refusal to admit the testimony of a witness from Williams’s prior trial. We affirm the

judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 8, 2010
Do not publish
[CR25]




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