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}