Morelos, Gilbert Reyes ( 2015 )


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  •                          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
    1
    {Petition For Discretionary Review}
    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.
    2
    {Petition For Discretionary Review}
    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
    3
    {Petition For Discretionary Review}
    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
    4
    {Petition For Discretionary Review}
    Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . …………..14
    Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….14
    Certificate of Compliance………………………………………………………....14
    Appendix…………………………………………………………..………….…..15
    v
    {Petition For Discretionary Review}
    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
    6
    {Petition For Discretionary Review}
    CODES AND STATUTES
    Tex. Penal Code § 12.35 (a)…………………………………………………..…..12
    Tex. Code Criminal Procedure § 36.02……………………………………...……13
    7
    {Petition For Discretionary Review}
    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,
    8
    {Petition For Discretionary Review}
    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
    9
    {Petition For Discretionary Review}
    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,
    10
    {Petition For Discretionary Review}
    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).
    11
    {Petition For Discretionary Review}
    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).
    12
    {Petition For Discretionary Review}
    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.
    13
    {Petition For Discretionary Review}
    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
    14
    {Petition For Discretionary Review}
    APPENDIX
    1.    Judgment and Memorandum Opinion, Eleventh Court of Appeals of
    Texas
    15
    {Petition For Discretionary Review}