CAUSE NO. PD-0355-15 

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 

Heredia - PDR, Page I 

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 

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

ABEL ACOSTA

CLERK
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 of Article 38.22 of the Code of Criminal Procedure? 

and ... 

(2) in violation of the Texas Rules of Evidence 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) of Section 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" of Appellant 

"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 are J 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 ST ATE 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 Miranda1 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. 

Before Chief Justice Gray, 

Justice Davis, and 

Justice Scoggins 

Affirmed 

TOM GRAY 

Chief Justice 

Opinion delivered and filed March 5, 2015 

Do not publish 

[CRPM] 

Heredia v. State Page 14