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 50 th JUDICIAL DISTRICT HONORABLE JUANITA PAVLICK , JUDGE PRESIDING BY ASSIGNMENT DISTRICT COURT CASE NUMBER 3962

___________________________________________________________
RESPECTFULLY SUBMITTED:

June 2 3 , 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

- 602 0 fax egriffinattorney@yahoo.com

1 {Petition For Discretionary R e view }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 revie w 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 her ein 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. 10 39200, 1065 South 3 rd 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

hi s address.

2 {Petition For Discretionary R e view }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 f or Petitioner

3 {Petition For Discretionary R e view }TABLE OF CONTENTS SUBJECT INDEX

SUBJECT: PAGE:

Certificate of Interest ed Persons . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . ... ... .. ... 2

- 3

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... ... ... .. 4

- 5
Subject Index . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .... 4

Index of Authorities . . . . . .. .

. . . . . . . . . . . . . . . . . . . . . . . . . . . ... ... ... . .. 6

- 7

Statement of the C ase . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ . .. ..8

- 9
Statement of Procedural History

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. . 9

- 11
Summary of the Arguments.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 11

Grounds for Review

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...................... 1 1

- 13

Reasons for Review

....................................... ........................ ...... 1 1

- 13

GROUND FOR REVIEW NUMBER ONE

. . . . . . . . . . . . . . . . . . . . .. 11

- 12

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ABUSED ITS DISCRETION BY ASSESSING PETITIONER AN UNREASONABLE SENTENCE UNDER THE CIRCUMSTANCES OF THIS CASE (ENTIRE RECORD).

GROUND FOR REVIEW NUMBER TWO

. . . . . . . . . . . . . . . . . . . . .. 1 2

- 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 (ENT IRE RECORD).
Statement Regarding Oral Argument

............ .................. ............ . ... ... ..1 3

4 {Petition For Discretionary R e view }Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . ...... ... ... . .1 4

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

. . . . . . . . . . . . . . . . . . . ... ... ... .14

Certificate of Compliance...............................................................

. .. . 1 4
App endix....................................................................

............ . ... ..1 5

v {Petition For Discretionary R e view }TABLE OF CONTENTS INDEX OF AUTHORITIES

CASE: PAGES:

A rriaga v. State, 335 S.W. 3d 331 (Tex. Civ. App.

- 2010, pet. ref ’ d )......

. .... ......1 2
Dale v. State, 170 S.W. 3d 797 (Tex. Civ. App.

- 2005, no pet.)

... .. ....... ............12

E x Parte Franklin, 2007 WL 2403338 (Tex. Crim. App.

- 2007)

.. ........ ..............1 2
Ex Parte Mabry, 137 S.W. 3 rd 58 (Tex .Crim.App.

- 2004).............................

. 12
Ex Parte Young, 418 S.W.2 nd 824 (Tex.Crim.App.

- 1967)................. ............1 2
Hurley v. State, 130 S.W.3 rd 501 ( Tex.Civ.App.

- 2004, no pet. ........................1 2

M ontgomery v. State, 810 S.W. 2d 372, 391

- 92 (Tex. Crim. App. 1991)

... ... ... .. 1 3

P eek v. State, 106 S.W. 3d 72, 79 (Tex. Crim . App. 2003)

... ... ... ... ... ... ... ... ... 1 3

S tate v. Manusco, 91 9 S.W. 2d 86 (Tex. Crim. App.

- 1996)

... ... ... ... ... ... ... ... ... 1 2

S unbury v. State, 88 S.W. 3d 229 , 234

- 235 (Tex. Crim. App. 2002 )

... . ............ . 1 3

6 {Petition For Discretionary R e view }CODES AND STATUTES

Tex. Penal Code § 12.35 (a)

........................................................... .....1 2

T ex. Code Criminal Procedure § 36.02

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 13

7 {Petition For Discretionary R e view }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 c auses, 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 th e trial court below as

follows:

For convenience, the Petitione r , 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, i n Cause Number 3962
, 50 th 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 R e view }R.R. Vol. 4, P. 1. (These hearing were before the Hon orable William H. Heatly,

J udge Presiding.) On December 8, 2014, Jud ge Juanita Pavlick, Judge Presid ing 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, 201 5, an untimely Notice of Appeal wa s 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 TH E 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 v ictim

and missed her uncle, R.R. Vol 4, P. 20, L. 14

- L. 23; that he believed the Petitioner

9 {Petition For Discretionary R e view }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 P etitioner is
the caregiver for their four children while she is at work and he is re morseful 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 accide nt, 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. Prio r to closing statements Petition er asked to be allowed
to reopen to put forth an additional witness whose identity h e 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 req uest 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 R e view }P. 6, L. 13

- 16. Judge Pavlick sentenced Petitioner to 10 year s in TDCJ

- ID, R.R.

Vol. 5, P. 12, L. 24

- P. 13, L. 12.

SUMMARY OF ARGUMEN T
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 hear ing and tender his
additional witness’ testimony.

GROUND S 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 TRIA L 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 DISC RETION BYASSESSING PETITIONER AN UNREASONABLE SENTENCE UNDER THE CIRCUMSTANCES OF THIS CASE (ENTIRE RECORD).

11 {Petition For Discretionary R e view }REASONS FOR REVIEW
The part of this Petition entitled “State ment 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.

- 19 67); State v. Manusco, 919 S.W. 2d 86 (Tex.Crim.Ap p.

- 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 se verity of the sentence impos ed, Arriaga v. S tate,

335 S.W. 3d 331 (Tex. Civ. App.

- 2010, pet. ref’d).

Peti t ioner should be granted a new trial herein as to punishment.

GROUND FOR REVIEW NUMBER TWO

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSE D TO ALLOW THE PETITIONER TO REOPEN AND CALL AN ADDITIONAL WITNESS PRIOR TO CLOSING ARGUMENT (ENTIRE RECORD).

12 {Petition For Discretionary R e view }REASONS FOR REVIEW
The parts of this Petition entitled “Statement of the Case” and “Statement of
Procedural History” are resubmitted here the sa me 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 t his 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 R e view }PRAYER

WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully

pray s 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 egriffina ttorney@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 H ajek, 50 th 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 2 3rd day of June 2015 , in accor dance 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 2 3rd day of June, 2015 , in accordance with t he rules governing same.

ATTORNEY FOR PETITIONER

14 {Petition For Discretionary R e view }APPENDIX

1. Judgment and Memorandum Opinion, Eleventh Court of Appeals of Texas

15 {Petition For Discretionary R e view }