PD-0355-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/7/2015 5:09:16 PM
Accepted 4/15/2015 11:04:49 AM
CAUSE NO. PD-0355-15 ABEL ACOSTA
CLERK
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
April 15, 2015
Heredia - PDR, Page I
NAMES OF ALL PARTIES
Trial Court Judge
Honorable Amanda Putman
Navarro County Court at Law Judge
300 West 3rd Avenue
Suite 15
Corsicana, Texas 75110
Trial Attorney
Neal Green
Attorney at Law
110 West Collin Street
Corsicana, Texas 75110
Appellant
Mr. Ruben Heredia
TDCJ #01910566
Alfred D. Hughes Unit
Route 2 Box 4400
Gatesville, Texas 76597
Attorney for the Appellant
Steve A. Keathley
Keathley & Keathley Law Office
412 West 3rd Avenue
Corsicana, Texas 7 5110
Counsel for the State
Mr. Lowell Thompson
District Attorney
300 West 3rd Avenue
Corsicana, Texas 7 5110
Heredia - PDR, Page 2
TABLE OF CONTENTS
Page
Table of Contents. .... ... ... ... ..... ... ..... .. . ..... .. .... .... .... ..... ..... ....... ...... 3
Index of Authorities... ....... .. ...... .. ..... .. ... ... .... .. .............................. 4
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
Statement of the Case.......................................................................................... 5
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . .. . . . . . .. .. . 6
Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
Argument............... ...... ...... ...... .. .... .......................................................... 6
Prayer.................................................................................................................... 10
Certificate of Service............................................................................................ 11
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
Heredia - PDR, Page 3
INDEX OF AUTHORITIES
CASES Page
Bishop v. State, 869 S.W. 2d. 342, 345 (Tex. Crim. App. 1993) . . . .. . . . . . . .. ... .. ... 9
Douthittv. State, 931S.W.2d 244 (Tex. Crim. App. 1996) ... ....... ... .. ...... .. .... 7
Joseph v. State, 309 S.W. 3rd 20 (Tex. Crim. App.)...................................... 7
Montgomery v. State, 810 S.W. S.W. 2d 372 (Tex. Crim. App 1990) ... .. ...... ... .. 9-10
Rhode Islandv. Innis, 446 U.S. 291 (1980) ........ ....................................... 7
Stansberry v. California, 511 U.S. 318, (1994) ...... ... .. .. ..... .. ..... .. ...... ... ... .. . 7
United States v. Mendenhall 446 U.S. 544, 544 (1980) .. . .. . ... .. .. .. ... ...... ... .. .. . . 7
U.S. CONSTITUTION & STATUTES
Article 38.22 of the Texas Code of Criminal Procedure ... .... ... .. ... .. ... ... ....... .... 6
Texas Rules of Evidence 401 .... .. .. . . .. ... . . . . .. .. . . .. .... .. . . . . . . . . . . . . .. . . . . . . . . . . . . . . .... 9
Texas Rules of Evidence 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 8-9
Texas Rules of Evidence 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
Heredia - PDR, Page 4
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 10th
Court of Appeals by written opinion on March 5, 2015. Hence follows this Petition for
Discoretionary Review.
Heredia - PDR, Page 5
STATEMENT OF PROCEDURAL HISTORY
The date of the opinion of the 10th Court of Appeals was March 5, 2015. No motion for
rehearing was filed.
GROUND FOR REVIEW
I . 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;
(I) in violation ofArticle 38.22 of the Code of Criminal Procedure?
and ...
(2) in violation of the Texas Rules ofEvidence 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) ofSection 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 6
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).
Furthermore, 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 of38.22 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 7
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 8
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 9
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 areJ 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 I 0
PRAYER
For the reasons cited in this brief, the Petitioner respectfully prays that this Court grant
discretionary review.
Respectfully submitted,
KEATHLEY & KEATHLEY
Attorneys At Law
412 West 3rd Avenue
Corsicana, Texas 75110
Telephone: (903) 872-4244
Telecopier: (903) 872- i
-·
BY: ~~~~~~---~~~~~~
STEVE A. KEAT
Attorney for Rub Heredia
State Bar No. 00787812
CERTIFICATE OF SERVICE
I, Steve Keathley, hereby certify that a true and correct copy of the foregoing
has been delivered to Mr. Lowell Thompson, District Attorney on April _:]____, 2015.
CERTIFICATE OF COMPLIANCE
I, Steve Keathley, hereby certify that it is my belief that this Petition for
Discretionary Review has 1,876 words as indicated by my word check program that
is associated with the word processing software on my computer at my office.
STEVE A. KEATH
Heredia - PDR, Page 11
APPENDIX
Heredia - PDR, Page 12
INTHE
TENTH COURT OF APPEALS
No.10-14-00014-CR
RUBEN HEREDIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C34853-CR
MEMORANDUM OPINION
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). Heredia was the front seat passenger in a vehicle stopped by a
Department of Public Safety trooper for traffic violations, and cocaine was found in the
vehicle. Because the trial court did not err in denying Heredia' s motion to suppress or
in denying Heredia' s motion for directed verdict, the trial court's judgment is affirmed.
MOTION TO SUPPRESS
Heredia first contends that the trial court erred in denying Heredia' s motion to
suppress several of his statements because the statements were 1) taken in violation of
article 38.22 of the Texas Code of Criminal Procedure; and 2) inadmissible pursuant to
Texas Rules of Evidence 401, 404(b), and 403. Heredia did not request findings of fact
and conclusions of law following the denial of his motion to suppress. However, we
abated this appeal so that the trial court could supply finding of fact and conclusions of
law regarding the voluntariness of Heredia' s statements. See Vasquez v. State, 411
S.W.3d 918, 920 (Tex. Crim. App. 2013). Those findings and conclusions were supplied,
and we reinstated this appeal.
We employ a bifurcated standard of review when reviewing motions to
suppress. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We measure the
propriety of the trial court's ruling under the totality of the circumstances, extending
almost total deference to the trial court's rulings on questions of historical fact, as well
as on its application of law to fact questions that turn upon credibility and demeanor.
Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012); Leza v. State, 351 S.W.3d 344,
349 (Tex. Crim. App. 2011). We review de novo the trial court's rulings on questions of
law and its rulings on application of law to fact questions that do not turn upon
credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view
the record in the light most favorable to the trial court's conclusion and reverse the
Heredia v. State Page2
judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006).
Waiver of Rights
Heredia first complains under this issue that the statements were inadmissible
because they were taken in violation of article 38.22 of the Texas Code of Criminal
Procedure. Under article 38.22, no oral statement of an accused made as a result of
custodial interrogation shall be admissible against an accused in a criminal proceeding
unless (1) the statement was recorded and (2) prior to the statement but during the
recording, the accused was warned of his rights and knowingly, intelligently, and
voluntarily waived those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v.
State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required by article
38.22 include those stated in Miranda 1 and, in addition, a warning that the accused "has
the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22
§§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
Heredia's statements were recorded on an in-car video recording device after
Heredia was placed under arrest for an outstanding warrant and placed in Trooper
Dustin Gilmore's patrol unit. He does not argue that the statements are inadmissible
because they were not recorded or that they were improperly recorded. Rather, he
argues that the eight statements, made either by Heredia or about him, were
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Heredia v. State Page3
inadmissible because he was either not properly warned of his statutory rights under
article 38.22 § 2(a) or did not waive those statutory rights.
The first statement mentioned by Heredia in his brief is a reference to an arrest
warrant for Heredia. This statement was not made by Heredia; thus, article 38.22 is not
invoked and the trial court did not err in admitting the statement under this part of
Heredia' s issue. Likewise, article 38.22 is not invoked for two other statements
referencing that Trooper Gilmore "found all that shit," referencing the cocaine, and that
Gilmore and the other troopers who helped search the vehicle were "white trash."
While Heredia made these statements, neither were the product of custodial
interrogation. Heredia was in the front seat of the patrol unit when he made those
statements; but the officer was not in the vehicle at the time and had not asked Heredia
any questions which would have provoked those statements. Accordingly, the trial
court did not err in admitting those additional statements under this theory of
exclusion.
The remaining statements at issue referenced the sale of cocaine, the price of
cocaine, the purchase of the cocaine by the driver and its reason, and the use of cocaine,
in general, and specifically of the use the day before of the purchased cocaine. These
statements were the product of questioning by Gilmore while Heredia was in custody.
The State argues, however, that Heredia waived his right to remain silent under article
38.22.
Heredia v. State Page 4
The State bears the burden of establishing a knowing, intelligent, and voluntary
waiver of one's rights under Miranda and Article 38.22. Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Leza v. State, 351S.W.3d344, 349, 351 (Tex. Crim.
App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be
proven by a preponderance of the evidence. Leza, 351 S.W.3d at 349, 351; Joseph, 309
S.W.3d at 24. In determining whether there was a valid waiver of Heredia's rights, we
must look to the totality of the circumstances, "including the background, experience,
and conduct of the accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755,
60 L. Ed. 2d 286 (1979); see Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.
A waiver can be expressly made or implied by the accused's conduct. Berghuis v.
Thompkins, 560 U.S. 370, 383, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); Joseph, 309 S.W.3d
at 24. An implied waiver of one's rights is established upon a showing that the accused:
(1) was given the proper warnings; (2) understood the warnings and their
consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 381-384; see
Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351
S.W.3d at 349. "As a general proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection those rights afford."
Berghuis, 560 U.S. at 385.
Heredia v. State Pages
While it is true that a waiver cannot be presumed from an accused's silence or
the fact that a confession was made after warnings were provided, "the general rule is
that neither a written nor an oral express waiver is required." Watson v. State, 762
S.W.2d 591, 601 (Tex. Crim. App. 1988) (en bane). Simply making a statement is often
the kind of conduct viewed as indicative of one's intention to waive her rights. See
Berghuis, 560 U.S. at 384; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This
relatively low threshold for establishing waiver is because "[t]he main purpose of
Miranda is to ensure that an accused is advised of and understands the right to remain
silent and the right to counsel." Berghuis, 560 U.S. at 383.
Trooper Gilmore testified at the motion to suppress hearing that he read Heredia
his rights and asked Heredia if he understood those rights. Although the reply in the
in-car video was sufficiently inaudible for the court reporter to transcribe when the
video was played during trial, Gilmore testified that Heredia said, "yeah." Gilmore
also stated that Heredia had been arrested before, had been through the system before,
had no problem communicating with Gilmore or understanding Gilmore's questions,
and spoke fluent English. Based on the totality of the circumstances, Gilmore believed
that Heredia understood and waived his statutory and constitutional rights to remain
silent. The video was introduced into evidence at the hearing. On cross-examination,
Gilmore's credibility was not attacked.
Heredia v. State Page6
In argument during the suppression hearing, Heredia's counsel contended that
Heredia replied, "no," when asked if he understood his rights. But the trial court
watched and listened to the video many times before deciding that the complained of
statements were admissible. Further, the trial court specifically found that after being
advised of his rights, Heredia answered, "yeah," and concluded that Heredia' s
statements were voluntary and that Heredia knowingly, intelligently, and voluntarily
waived his rights set out in article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22
(West 2005). Based on the record, the trial court was within its discretion to have
determined that Heredia understood his rights. Further, based on our review of the
record in the light most favorable to the trial court's conclusions, Heredia, at the very
least, impliedly voluntarily waived those rights. Accordingly, the trial court did not err
in denying Heredia' s motion to suppress on this first theory of exclusion.
Extraneous Offenses
Heredia next complains under his first issue that the same statements were
extraneous offenses and were inadmissible pursuant to Texas Rules of Evidence 401,
404(b), and 403. Initially we note that Heredia did not advise the trial court that the
statements were inadmissible pursuant to Rule 404(b ). Accordingly, that part of
Heredia' s issue does not comport with the arguments made at trial and are not
preserved for our review. See TEX.RAPP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-692
(Tex. Crim. App. 2009). Further, Heredia fails to brief why the statement that Gilmore
Heredia v. State Page 7
"found all that shit" or the statements that the driver of the vehicle paid for the cocaine
were inadmissible under this part of his issue. Accordingly, any complaint regarding
these two statements is improperly briefed and presents nothing for review. See TEX. R.
APP. P. 38.l(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
We will review, however, the remaining statements 1) that Heredia had a
warrant for his arrest; 2) that he called the troopers "white trash;" 3) that he used the
cocaine the day before; and 4) that discussed the general price and sales of cocaine to
determine whether they were relevant and if so, whether the probative value of those
statements was substantially outweighed by the danger of unfair prejudice, because
those same arguments were made to the trial court.
Relevancy
In his brief, Heredia does not explain how these remaining statements were
irrelevant or how they did not have "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
would be without the evidence." TEX. R. Evm. 401. He simply concludes that the
statements were irrelevant.
Heredia was charged with possession of a controlled substance, cocaine, which
was found in a vehicle with two other occupants. The cocaine was not on his person;
rather, it was found in a coin purse located on the floor in between the center console
and the front seat. The back seat passenger, who was sitting behind Heredia, was the
Heredia v. State Page 8
closest person to the pouch. Whether Heredia, the front seat passenger, was in care,
custody, or control of the cocaine found in the vehicle was a fact of consequence in the
trial. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) ("the State must
prove that (1) the accused exercised control, management, or care over the
substance .... "). Further, Heredia's theory of defense was that he did not know the
cocaine was in the vehicle. Thus, the statements at issue were relevant because they
could lead to an inference that Heredia knew the cocaine was in the vehicle and had
care, custody, or control of it.
Unfair Prejudice
Again, in his brief, Heredia simply concludes that the remaining statements at
issue were prejudicial. Evidence may be excluded under Rule 403 if the danger of
unfair prejudice substantially outweighs the probative value of the evidence. TEX. R.
EVID. 403; Greer v. State, 436 S.W.3d 1, 9 (Tex. App.-Waco 2014, no pet.). Rule 403
favors admission of relevant evidence and carries a presumption that relevant evidence
will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim.
App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court
has broad discretion in conducting a Rule 403 balancing test, and we will not lightly
disturb its decision. Allen, 108 S.W.3d at 284; Greer, 436 S.W.3d at 9.
All testimony and physical evidence will likely be prejudicial to one party or the
other. Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity between the
Heredia v. State Page9
degree of prejudice of the offered evidence and its probative value that Rule 403 is
applicable. Id. The fact that Heredia knew about sales and pricing of cocaine, had a
warrant out for his arrest, used some of the cocaine the day before the remainder was
seized, and called the troopers "white trash," were all pieces of the puzzle used by the
State to show that Heredia was in possession of the cocaine. While the statements may
have been prejudicial to Heredia, the statements were not so prejudicial that there was a
clear disparity between the degree of prejudice and the statements' probative value.
Accordingly, the trial court did not err in denying Heredia's motion to suppress
these remaining statements under this theory of exclusion.
Heredia' s first issue is overruled.
DIRECTED VERDICT
In his second issue, Heredia contends the trial court erred in denying Heredia' s
motion for directed verdict because the evidence was insufficient to prove Heredia was
in possession of the controlled substance.
We review a challenge to the denial of a motion for directed verdict as a
challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.
Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The
Court of Criminal Appeals has expressed our standard of review of a sufficiency issue
as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
Heredia v. State Page 10
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
"familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts." Jackson, 443
U.S. at 319. "Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction."
Hooper, 214 S.W.3d at 13.
Lucio v. State, 351S.W.3d878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Heredia v. State Page 11
To prove unlawful possession of any controlled substance, "the State must prove
that (1) the accused exercised control, management, or care over the substance; and (2)
the accused knew the matter possessed was contraband." Evans v. State, 202 S.W.3d 158,
161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)
(West 2010) ('"Possession' means actual care, custody, control, or management.").
Possession is not required to be exclusive. Roberts v. State, No. 10-14-00048-CR, 2015
Tex. App. LEXIS 78, 3-4 (Tex. App.-Waco Jan. 8, 2015, no pet. h.) (not designated for
publication). When the defendant is not in exclusive possession of the place where the
controlled substance is found, then additional, independent facts and circumstances
must link the defendant to the substance in such a way that it can reasonably be
concluded that the defendant possessed the substance and had knowledge of it. See
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). In other words, the
evidence "must establish, to the requisite level of confidence, that the defendant's
connection with the [contraband] was more than just fortuitous," which may be
established by direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995).
Heredia was not in exclusive possession of the place where the cocaine was
found. He was the front seat passenger of an SUV that was pulled over for traffic
violations by Trooper Gilmore. When stopped, the driver and back seat passenger
appeared fidgety. Heredia had an outstanding warrant for his arrest and was placed
Heredia v. State Page 12
under arrest and placed in the trooper's patrol unit. The driver of the SUV, who was
also the owner, gave Gilmore permission to search the vehicle. The coin purse was
found pursuant to the search. In the purse was the cocaine.
Heredia contends that the evidence was insufficient to show he was in
possession of the cocaine because the driver testified at Heredia' s trial that he bought
the cocaine and that Heredia did not know about it. Further, both the driver and the
female passenger pied guilty to possessing the cocaine.
The evidence also showed, however, that when the cocaine was found, Heredia,
in the patrol car by himself, commented that the trooper "found all that shit." He also
made a comment to himself about the troopers searching the vehicle, calling them
"white trash." After being warned of his statutory and Miranda rights, Heredia told
Gilmore that the driver purchased the cocaine the day before for Heredia' s girlfriend,
the backseat passenger. Heredia admitted to using some of the cocaine the day it was
purchased. He was also very familiar about the going price of cocaine and how it made
him feel when he used it.
Viewing the record in the light most favorable to the judgment, we find that the
evidence was sufficient for the jury to have found Heredia guilty of possessing the
cocaine.
Heredia' s second issue is overruled.
Heredia v. State Page 13
CONCLUSION
Having overruied each of Heredia' s issues on appeal, we affirm the trial court's
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]
Heredia v. State Page 14
Heredia, Ruben
Combined Opinion