PD-0588-15
June 24, 2015
No. 11-15-00076-CR
_________________________________________
IN THE CRIMINAL COURT OF APPEALS
_______________________________________________
GILBERT REYES MORELOS
PETITIONER,
VS.
THE STATE OF TEXAS
____________________________
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________
Appeal from the District Court
of Knox County, Texas
50th JUDICIAL DISTRICT
HONORABLE JUANITA PAVLICK, JUDGE PRESIDING BY ASSIGNMENT
DISTRICT COURT CASE NUMBER 3962
___________________________________________________________
RESPECTFULLY
SUBMITTED:
June 23, 2015
/s/ Earl Griffin, Jr.
EARL GRIFFIN, JR.
SBOT# 08471000
Attorney for Petitioner
P.O. Box 730
Childress, Texas 79201
(940) 937-6474
(940) 937-6020 fax
egriffinattorney@yahoo.com
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CERTIFICATE OF SERVICE
I hereby certify that the following listed person(s) or entities have rights
which may be adversely affected by the outcome of these appeals in this Court so
that the Justice of this Court may review the same to determine the need for refusal
or disqualification, if necessary, herein:
1. The Petitioner, GILBERT REYES MORELOS, TDCJ #01970088,
currently resides at Lindsey State Jail, 1620 FM 3344; Jacksboro, TX 76458, and
may be served with process herein at the address of his Court Appointed Counsel
and he is represented herein by the undersigned counsel whose address is shown on
the front cover of this Petition. The Petitioner was represented at trial herein by
Mr. Lynn Ingalsbe, Esquire, SBOT No. 1039200, 1065 South 3rd Street, Abilene,
Texas 79602-1403.
2. The State of Texas is represented herein by its Criminal District
Attorney for Knox County, Texas, Mr. David Hajek, Esquire, and his address is
PO Box 508, Seymour, Texas 76380-0508, and he may be served with process at
his address.
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3. The State Prosecuting Attorney is Ms. Lisa C. McMinn and her
address is P. O. Box 12405, Capitol Station, Austin, Texas 78711-2405, and she
may be served with process at this address.
Respectfully submitted by,
EARL GRIFFIN, JR.
Attorney for Petitioner
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TABLE OF CONTENTS
SUBJECT INDEX
SUBJECT: PAGE:
Certificate of Interested Persons . . . . . . . . . . . . .. . . . . . .. . . . . . . . . . . ……..…2-3
Table of Contents . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . ……….....4-5
Subject Index . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . …..….4
Index of Authorities . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……......6-7
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .…….......8-9
Statement of Procedural History. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . …...9-11
Summary of the Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……..11
Grounds for Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………….11-13
Reasons for Review……………………………………………………………11-13
GROUND FOR REVIEW NUMBER ONE . . . . . . . . . . . . . . . . . . . . ..11-12
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ABUSED ITS DISCRETION BYASSESSING PETITIONER AN
UNREASONABLE SENTENCE UNDER THE CIRCUMSTANCES OF THIS
CASE (ENTIRE RECORD).
GROUND FOR REVIEW NUMBER TWO . . . . . . . . . . .. . . . . . . . . ..12-13
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
REFUSED TO ALLOW THE PETITIONER TO RE-OPEN AND CALL AN
ADDITIONAL WITNESS PRIOR TO CLOSING ARGUMENT (ENTIRE
RECORD).
Statement Regarding Oral Argument…………………………………….……..13
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Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . …………..14
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….14
Certificate of Compliance………………………………………………………....14
Appendix…………………………………………………………..………….…..15
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TABLE OF CONTENTS
INDEX OF AUTHORITIES
CASE: PAGES:
Arriaga v. State, 335 S.W. 3d 331 (Tex. Civ. App.-2010, pet. ref’d)…….….…...12
Dale v. State, 170 S.W. 3d 797 (Tex. Civ. App.-2005, no pet.)…..…….………...12
Ex Parte Franklin, 2007 WL 2403338 (Tex. Crim. App.-2007)..……..……….....12
Ex Parte Mabry, 137 S.W. 3rd 58 (Tex.Crim.App.-2004)………………………...12
Ex Parte Young, 418 S.W.2nd 824 (Tex.Crim.App.-1967)……………..…………12
Hurley v. State, 130 S.W.3rd 501 (Tex.Civ.App.-2004, no pet.…………………...12
Montgomery v. State, 810 S.W. 2d 372, 391-92 (Tex. Crim. App. 1991)………..13
Peek v. State, 106 S.W. 3d 72, 79 (Tex. Crim. App. 2003)………………………13
State v. Manusco, 919 S.W. 2d 86 (Tex. Crim. App.-1996)……………………...12
Sunbury v. State, 88 S.W. 3d 229, 234-235 (Tex. Crim. App. 2002)….………....13
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CODES AND STATUTES
Tex. Penal Code § 12.35 (a)…………………………………………………..…..12
Tex. Code Criminal Procedure § 36.02……………………………………...……13
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NO. 11-15-00076-CR
GILBERT REYES MORELOS }{ IN THE COURT
PETITIONER, }{
}{
VS. }{ CRIMINAL APPEALS
}{
THE STATE OF TEXAS }{ OF TEXAS
PETITON FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS:
COMES NOW, GILBERT REYES MORELOS, the Petitioner in the
above-styled and numbered causes, by and through his counsel of record on appeal
herein, and submits in and to this Court his Petition for Discretionary Review on
appeal herein complaining of errors of fact and law in the trial court below as
follows:
For convenience, the Petitioner, GILBERT REYES MORELOS, and THE
STATE OF TEXAS will hereinafter be referred to as the “Petitioner” and the
“State” respectively throughout this Petition hereinafter:
STATEMENT OF THE CASE
On June 18, 2014, in Cause Number 3962, 50th Judicial District Court, Knox
County, Texas Petitioner pled guilty to Intoxication Manslaughter, R.R. Vol. 3, P.
8, L. 25. On July 14, 2014, a contested hearing was had as to punishment herein,
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R.R. Vol. 4, P. 1. (These hearing were before the Honorable William H. Heatly,
Judge Presiding.) On December 8, 2014, Judge Juanita Pavlick, Judge Presiding by
Assignment, sentenced Petitioner to 10 years in the Institutional Division of TDCJ,
R.R. Vol. 5, P. 12, L. 24-P. 13, L. 12.
On March 31, 2015, an untimely Notice of Appeal was filed on behalf of
Petitioner and on April 23, 2015, the Eleventh Court of Appeals dismissed the
appeal for want of jurisdiction, SEE MEMORANDUM OPINION attached hereto
as Appendix 1. On May 15, 2015, this Court of Criminal Appeals granted its
EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW
extending Petitioner’s time to file same until June 24, 2015. This Petition For
Discretionary Review is timely filed.
STATEMENT OF PROCEDURAL HISTORY
SEE the foregoing STATEMENT OF THE CASE and Appendix 1 which
are included herein by reference.
On July 24, 2014, at the contested punishment hearing the State called the
victim’s brother, Sergeant First Class Anthony Carl Oudems who testified that: He
was the brother of the victim killed in the accident, R.R. Vol. 4, P. 17, L. 10-20;
that the sergeant’s six year old daughter had a unique relationship with the victim
and missed her uncle, R.R. Vol 4, P. 20, L. 14-L. 23; that he believed the Petitioner
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should serve prison time but could not say how much time, R.R. Vol. 4, P. 26, L.
16-19.
The Petitioner called Cynthia Garcia, the Petitioner’s common law wife to
testify, R.R. Vol. 4, P. 28, L. 23-24. She testified that she and Petitioner had four
children who lived with them, R.R. Vol. 4, P. 29, L. 12-19; that the occurrence in
question was a bad accident, R.R. Vol. 4, P. 36, L. 21-25; that Petitioner hadn’t
consumed alcohol since the accident, R.R. Vol. 4, P. 38, L. 7-17; that Petitioner is
the caregiver for their four children while she is at work and he is remorseful about
the accident, R.R. Vol. 4, P. 43, L. 9-P. 45, L. 1; P. 49, L. 5-20.
Gilbert Morelos testified, R.R. Vol. 4, P. 52, L. 23: He has no other felony
convictions of any kind, R.R. Vol. 4, P. 53, L. 18-23; he accepts responsibility for
the accident, R.R. Vol. 4, P. 57, L. 15-23; that he has stopped drinking, R.R. Vol.
4, P. 58, L. 7-12; that he now attends AA meetings, R.R. Vol. 4, P. 65, L. 9-14.
On December 8, 2014, Judge Pavlick, Presiding By Assignment, conducted
sentencing, R.R. Vol. 5. Prior to closing statements Petitioner asked to be allowed
to reopen to put forth an additional witness whose identity he had discovered after
the punishment hearing on July 24, 2014, R.R. Vol. 5, P. 4, L. 25-P. 5, L. 25. The
Trial Court refused Petitioner’s request citing the State’s and Petitioner’s
agreement at the punishment hearing that all evidence was concluded, R.R. Vol. 5,
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P. 6, L. 13-16. Judge Pavlick sentenced Petitioner to 10 years in TDCJ-ID, R.R.
Vol. 5, P. 12, L. 24-P. 13, L. 12.
SUMMARY OF ARGUMENT
The Trial Court abused its discretion by assessing Petitioner an unreasonable
sentence under the circumstances of this case.
The Trial Court abused its discretion by refusing to allow Petitioner to
reopen prior to closing arguments at the sentencing hearing and tender his
additional witness’ testimony.
GROUNDS FOR REVIEW
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ABUSED ITS DISCRETION BYASSESSING PETITIONER AN
UNREASONABLE SENTENCE UNDER THE CIRCUMSTANCES OF THIS
CASE (ENTIRE RECORD).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
REFUSED TO ALLOW THE PETITIONER TO REOPEN AND CALL AN
ADDITIONAL WITNESS PRIOR TO CLOSING ARGUMENT (ENTIRE
RECORD).
GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ABUSED ITS DISCRETION BYASSESSING PETITIONER AN
UNREASONABLE SENTENCE UNDER THE CIRCUMSTANCES OF THIS
CASE (ENTIRE RECORD).
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REASONS FOR REVIEW
The part of this Petition entitled “Statement of the Case” and “Statement of
Procedural History” are resubmitted here the same as if set forth herein verbatim.
The Trial Court abused its discretion when it assessed Petitioner 10 years in
TDCJ-ID under the facts of this case, SEE Ex Parte Young, 418 S.W.2d 824
(Tex.Crim.App.-1967); State v. Manusco, 919 S.W. 2d 86 (Tex.Crim.App.-1996);
Ex Parte Franklin, 2007 WL 2403338 (Tex.Crim.App.-2007). {The writer
acknowledges that the 10 year sentence was within the statutorily prescribed range
of punishment and the line of cases holding therefore it is prima facie reasonable,
Tex. Penal Code § 12.35 (a); Ex Parte Mabry, 137 S.W. 3d 58 (Tex.Crim.App.-
2004); Hurley v. State, 130 S.W. 3d 501 (Tex.Civ.App.-2004, no pet.); Dale v.
State, 170 S.W.3d 797 (Tex.Civ.App.-2005, no pet.} But the facts of this case,
mitigate strongly against the severity of the sentence imposed, Arriaga v. State,
335 S.W. 3d 331 (Tex. Civ. App.-2010, pet. ref’d).
Petitioner should be granted a new trial herein as to punishment.
GROUND FOR REVIEW NUMBER TWO
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
REFUSED TO ALLOW THE PETITIONER TO REOPEN AND CALL AN
ADDITIONAL WITNESS PRIOR TO CLOSING ARGUMENT (ENTIRE
RECORD).
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REASONS FOR REVIEW
The parts of this Petition entitled “Statement of the Case” and “Statement of
Procedural History” are resubmitted here the same as if set forth herein verbatim.
Under Peek v. State, 106 S.W. 3d 72, 79 (Tex. Crim. App. 2003): “A trial
judge is required to reopen a case under TCCP P. 36.02 if the proffered evidence is
“necessary to a due administration of justice,” which means a judge should reopen
the case if the evidence would materially change the case in the proponent’s favor.
To do otherwise in such a situation is an abuse of discretion, Montgomery v. State,
810 S.W. 2d 372, 391-92 (Tex. Crim. App. 1991).
Unfortunately in this case there is no proffer of what the testimony
would be, only a proffer of the witness. However, as this was at the punishment
phase “any evidence’ which aids in the proper assessment of punishment should be
admitted, Sunbury v. State, 88 S. W. 3d 229, 234-235 (Tex. Crim. App. 2002).
Petitioner should be granted a new trial herein as to punishment.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not thought necessary herein.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully
prays that Petitioner be granted a new trial herein as to punishment.
Respectfully submitted by,
/s/ Earl Griffin, Jr.
EARL GRIFFIN, JR.
ATTORNEY FOR APPELLANT
P.O. Box 730
Hall, Texas 79201
(940) 937-6474
(940) 937-6020 Fax
State Bar No. 08471000
egriffinattorney@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Petitioner’s Petition for Discretionary Review has been mailed CMRRR# 7011
3500 0002 4075 1992 the counsel for the state herein, Mr. David Hajek, 50th
District Attorney, PO Box 508, Seymour, Texas 79602-1403, and CMRRR # 7011
3500 0002 4075 1985 to Ms. Lisa C. McMinn, State Prosecuting Attorney at P.O.
Box 12405, Capital Station, Austin, Texas 78711, on this the 23rd day of June
2015, in accordance with the rules governing same.
CERTIFICATE OF COMPLIANCE
I hereby certify that the above and foregoing Petitioner’s Petition for
Discretionary Review is 1,232 words in its completion, signed on this the 23rd day
of June, 2015, in accordance with the rules governing same.
ATTORNEY FOR PETITIONER
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APPENDIX
1. Judgment and Memorandum Opinion, Eleventh Court of Appeals of
Texas
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