Heredia, Ruben

PD-0355-15
March 31, 2015

IN THE

COURT OF CRIMINAL APPEALS

FOR THE

STATE OF TEXAS

RUBEN HEREDIA

vs.
THE STATE OF TEXAS

PETITION FOR DISCRETIONARY REVIEW FOR RUBEN HEREDIA

STEVE A. KEATHLEY
State Bar No. 00787812

KEATHLEY & KEATHLEY
412 West 3rd Avenue
Corsicana, Texas 75110
Telephone: (903) 872-4244
Telecopier: (903) 872-4102
Attorney for Ruben Heredia

Heredia - PDR, Page I
 TABLE OF CONTENTS

Page

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 2

Index of Authorities. .. ..... ... ..... ... ..... ....... ... .. ... .................... ....... ... 3

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 4

Statement of the Case..... .................................................................................... 4

Statement of Procedural History .. .... . .... .... .................. ........... ..... ... ... .. 5

Ground for Review .. ....... .. ......... .... .. ... . ... ....... ........ .. ..... .... .. ... .. ... .. . 5

Argument .. .... ... .. ... ... ..... ........... .. ... ............................................................... 5

Prayer.............................................................................. ................................... 10

Certificate of Service.......................................................................................... 10

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

Heredia - PDR, Page 2
 INDEX OF AUTHORITIES

CASES Page

Bishop v. State, 869 S.W. 2d. 342, 345 (Tex. Crim. App. 1993) ... ... . .. 8

Douthitt v. State, 931 S. W. 2d 244 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . 6

Joseph v. State, 309 S.W. 3rd 20 (Tex. Crim. App.) .... ... ....... .... .... . .... 6

Montgomery v. State, 810 S.W. S.W. 2d 372 (Tex. Crim. App 1990) ..... . 8-9

Rhode Island v. Innis, 446 U.S. 291 (1980) . .... .... ... .. .. .............. ... .. . 6

Stansberry v. California, 511 U.S. 318, (1994) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 6

United States v. Mendenhall 446 U.S. 544, 544 (1980) . . . . . . . . . . . . . . . . . . . . . 6

U.S. CONSTITUTION & STATUTES

Article 38.22 of the Texas Code of Criminal Procedure .... ...... . .. .. .... . . 5

Texas Rules of Evidence 401 . .. . . ... . . . . . .. . . . . . . . . . . . . . .. .. . . . . .. . ... . . . . . . ... 8

Texas Rules of Evidence 404(b). .. . . . . . . .. . .. . . . . . . . . . . . . . . . .. . . .. . .. . . . . . . . . . . 7-8

Texas Rules of Evidence 403 . .. . . . ........ . .. . . .. . . . .. . . . . . .. . . . .. . . .. . . ... . . . . 8

Heredia - PDR, Page 3
 PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

COMES NOW, RUBEN HEREDIA, Petitioner in this cause, by and through his attorney,

Steve A. Keathley, and files his petition for discretionary review. Pursuant to this request we

Would respectfully show the Court the following:

STATEMENT REGARDING ORAL ARGUMENT

Oral Argument is not requested on behalf of Heredia.

STATEMENT OF THE CASE

The Appellant was charged by a Navarro County Grand Jury with the crime of Possession

of a Controlled Substance over 4 grams and under 200 grams. The Appellant was tried in the

13th Judicial District Court of Navarro County. The trial commenced on November 4th 2013.

On November 6th after trial testimony the jury returned a verdict of guilty. The court recessed for

the preparation of a presentence investigation, and on November 27, 2014 the District Court

reconvened the case, heard testimony from friends and family of the Appellant. It thereafter

sentenced the Appellant to sixty years (60) in the Texas Department of Criminal Justice.

The Appellant filed a timely notice of appeal however that Appeal was denied by the 1oth

Court of Appeals by written opinion on March 5, 2015. Hence follows this Petition for

Discoretionary Review.

Heredia - PDR, Page 4
 STATEMENT OF PROCEDURAL HISTORY

The date of the opinion of the 101h Court of Appeals was March 5, 2015. No motion for

rehearing was filed.

GROUND FOR REVIEW

1. Did the Trial Court commit error when it denied the Appellant's Motion to Suppress
Statements of the Appellant and allowed various statements of the Appellant to be
introduced at trial;
(1) in violation ofArticle 38.22 of the Code of Criminal Procedure?
and ...
(2) in violation of the Texas Rules of Evidence Rules 401, 404(b) and 403 and
the rules prohibiting the introduction of an extraneous offense to be
introduced before the jury?

ARGUMENT

A. Violation of 38.22 of the Texas Rules of Criminal Procedure

Article 38.22 of the Texas Code of Criminal Procedure states in part:

Section 3. (a) no oral or sign language statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal
proceeding unless:

(1) An electronic recording, ....................... is made of the statement;

(2) Prior to the statement but during the recording, the accused is given the
warning in Subsection (a) of Section 2 [advised of right to have attorney], above
and the accused knowingly, and voluntarily waives any rights set out in the
warning;

An encounter between officers and an individual has been determined to

Heredia - PDR, Page 5
be nonconsensual or custodial only if a reasonable person would believe he or she was not free to

leave under those circumstances of that encounter. United States v. Mendenhall 446 U.S. 544,

544 (1980) and Stansberry v. California, 511 U.S. 318, (1994), Douthitt v. State, 931 S.W. 2d

244 (Tex. Crim. App. 1996). Questions or comments by an officer to a suspect will be

considered an interrogation if the questions are intended to illicit an incrimination response.

Rhode Island v. Innis, 446 U.S. 291 (1980).

Furthe1more, it is important that the person in fact does waive his rights. Courts have

held that an express waiver of the rights is not necessarily required under Article 38.22 or the

Miranda warnings, and a totality of circumstances indicating that the Defendant did wish to

waive his rights were sufficient. Joseph v. State, 309 S.W. 3rd 20 (Tex. Crim. App.).

The present case is distinguishable from Joseph. It, it is clear that the question posed to

the Appellant under the circumstances of the encounter with the Trooper were made during a

custodial interrogation of the Appellant. The Appellant was in a vehicle that had been pulled

over for a traffic stop, a warrant on the Appellant was discovered and he was in custody. He was

not free to leave and thereafter was questioned by law enforcement

After a review of State's Exhibits, where the Appellant is asked by the Trooper if he

wished to waive his rights, he states, "No".

Therefore, the Appellant did not give up his 5th Amendments rights under the United

States and Texas Constitutions or meeting the full requirements of 38.22 of the C.C.P. He was

nevertheless questioned further; therefore every statement of the Appellant thereafter should have

not been introduced to the jury.

Wherefore, the Trial Court erred in overruling the Appellant's objection to introduction

Heredia - PDR, Page 6
of statements; specifically the statements made in the out-of-the-jury- presence hearing on the

motion to suppress, as well as at trial. This Honorable Court should grant Review for that

purpose.

B. Introduction of Extraneous Offenses

In addition to the forgoing argument, the introduction of the variety of extraneous

offenses and matters.

They were:

[reference to] "warrant of arrest" ofAppellant

"Cocaine Sales"

"found shit" Appellant's words

"used cocaine" Appellant's words

"/police are] white trash" Appellant's words

Boyfriend paid" (for dope) Appellant's words

The price of cocaine

The purchase of cocaine

The introduction of these extraneous offenses were improper and the Court should have

sustained the Appellant's objection and disallowed its introduction by the State on that ground as

well.

In pertinent parts, Rule 404(b) of the Texas Rules of Evidence states as follows:

"Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
Heredia - PDR, Page 7
 conformity therewith. It may however be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, or plan, knowledge, identity, or absence of
mistake or accident, provided upon timely request by the accused, - reasonable notice
given in advance of trial of the intent to introduce in the State's case in chief such
evidence other than that arising in the same transaction."

Rule 401 states as follows:

"Relevant Evidence means having any tendency to make existence of any fact that is of
consequence to the termination of the actual more probable or less probable than it
would be without the evidence."

Rule 403 stats as follows:

"Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or considerations of undue delay, or needless presentation of cumulative
evidence. "

An action does not have to be an actual crime for the Rules of Evidence to apply. Bishop

v. State, 869 S.W. 2d. 342, 345 (Tex. Crim. App. 1993). In Bishop, the Court of Criminal

Appeals concluded that evidence of certain sexual acts was at minimum evidence of extraneous

acts and found that analysis under Rule 404(b) and 403 was permissible. In that case, the Court

held that such testimony was prejudicial and greatly outweighed any probative value, and should

not have been admitted at trial. Id. at 346.

Montgomery v. State, 810 S.W. S.W. 2d 372 (Tex. Crim. App 1990), remains the

standard case for definition and guidance on the introduction of extraneous offenses, requiring a

showing of proof and relevance to a court prior to introduction before a jury. In that case, the

Court held that, among other matters, the extraneous conduct must be proven beyond a

reasonable doubt to the trial court in a gate-keeping hearing outside the presence of the jury; and

the Court must find that the extraneous allegations to be relevant before they can be introduced.

Heredia - PDR, Page 8
 In the Appellant's case, such introduction of the Petitioner's statements that he had

previously used cocaine on another occasion, that he called the police "White Trash", that he had

a warrant for his arrest, and that he discussed the general price and sales of cocaine was

irrelevant, and prejudicial. This case deals with the accusation that the Appellant possessed an

amount of cocaine. The introduction of matters extraneous, particularly the allegation that the

Appellant had a (1) "warrant of arrest" was not relevant to the matter at hand. Neither was the

statement made by the Appellant that (2) the [police are] white trash." This statement, showing

nothing but an inappropriate term, is also not relevant and prejudicial.

Therefore, the allowance of this evidence acts to harm the Appellant for a crime for

which he was not on trial for in this proceeding, in a matter that is not relevant and violates the

tenants of Montgomery and the Rules of Evidence 401, 404(b) and Rule 403 .

Wherefore, the Trial Court committed error when it allowed the statement over the

objections of the Appellant for these grounds, as well as the grounds made earlier in this brief.

This Honorable Court of Criminal Appeals should grant review on this issue. as well.

Heredia - PDR, Page 9
 PRAYER

For the reasons cited in this brief, the Petitioner respectfully prays that this Court grant

discretionary review.

Respectfully submitted,

KEATHLEY & KEATHLEY

Attorney for ~u en Heredia
State Bar ci. 00787812

CERTIFICATE OF SERVICE

I, Steve Keathiey, hereby certify that a true and correct copy of the foregoing
has been delivered to Mr. Lowell Thompson, District Attorney on this
\'l\o..rc..'n 30, l.0\5 .

STEVEZ EY

Heredia - PDR, Page I 0
 APPENDIX

Heredia - l'OR. Page: I I
 IN THE
TENTH COURT OF APPEALS

No. 10-14-00014-CR

RUBEN HEREDIA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the County Court
Navarro County, Texas
Trial Court No. C34853-CR

ORDER

Ruben Heredia was convicted of possession of a controlled substance, cocaine,

and sentenced to 60 years in prison. See TEX. HEALTH & SAFETY CODE ANN.§ 481.llS(d)

(West 2010). His appeal was abated so that the trial court could prepare findings of fact

and conclusions of law regarding whether Heredia' s statements were voluntary and

specifically whether Heredia made a knowing, intelligent, and voluntary waiver of the

rights set out in Article 22 of the Texas Code of Criminal Procedure.
 The trial court's findings of fact and conclusions of law have been filed.

Accordingly, this appeal is reinstated.

PERCURIAM

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal reinstated
Order issued and filed February 12, 2015

Heredia v. State Page2