Page 1 of 25

In the Court of Criminal Appeals of Texas

No.# PD-1626-14

on Petition for Discretionary Review of the following:

09-13-00075-CR

09-13-00072-CR

IN THE COURT OF APPEALS 

FOR THE NINTH DISTRICT OF TEXAS

RAMIRO TREVIÑO, JR. VS. STATE OF TEXAS

ON DIRECT APPEAL FROM THE 355TH DISTRICT COURT OF

MONTGOMERY COUNTY

TRIAL COURT NO.12-06-06351-CR

* * * * * * * * * *

Appellant’s Petition for Discretionary Review

* * * * * * * * * *

Larry Warner

Counsel for Petitioner

3109 Banyan Circle

Harlingen, Texas 78550

Phone (956)230-0361 

email: office@larrywarner.com

website: www.larrywarner.com

Texas Bar#20871500;USDC,SDTX

1230; Board Certified, Criminal

Law, Texas Board of Legal

Specialization(1983)

Member of the Bar of the

Supreme Court of the United

States (1984)

PD-1626-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/26/2014 2:23:06 PM

Accepted 12/30/2014 9:33:23 AM

ABEL ACOSTA

CLERK
Page ii of 25

Pursuant to TEX.R.APP.P.68.4,Appellant provides the

following identity of parties and counsel:

Identity of parties and counsel

PARTIES AND INTERESTED PERSONS

1. Ramiro Treviño, Jr., Appellant

2. Hon. Larry Warner, Attorney for Appellant, 3109

Banyan Drive, Harlingen, Tx 78550, Attorney for

Appellant

3. MR. ROBERT ARNOLD FREYER, JR. SBOT NO. 00798189

4. MR. VINCENZO JOSEPH SANTINI SBOT NO. 24064310

Montgomery County District Attorney's Office 207

West Phillips, 2nd Floor, Conroe, Texas 77301

Telephone: 936-539-7800 

Counsel for The State of Texas 

5. MR. BENTON BAKER IV SBOT NO. 24006785

Baker & Beck, PLLC Attorneys at Law 14 "Old

Montgomery County Courthouse" 202 Avenue A,

Conroe, Texas 77301 Telephone: 936-494-2444 16

Counsel for Defendant 
Page iii of 25

Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this

Table of Contents with reference to the pages of the

Petition, indicating the subject of each ground or

question presented for review.

TABLE OF CONTENTS

PAGE

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

Index of Authorities . . . . . . . . . . . . . . iv-v

Statement re oral argument . . . . . . . . . . . . vi

Statement of the case . . . . . . . . . . . . . . . . 1

Statement of procedural history . . . . . . . . . . 2-3

Grounds for Review . . . . . . . . . . . . . . . . . 4

1. How should a Court of Appeals apply the doctrine of

affirmative links to determine if a rational jury could

have found such a connection based on a particular

quantity of evidence? Has the Court of Appeals

misconstrued the rule of “affirmative links”?

TEX.R.APP.P.66.3(d)

2. While Texas’ not defining reasonable doubt is

intellectually defensible, should the Court of Criminal

Appeals reinstate the prior practice of defining the term

as a purely practical measure?

Should the Court of Criminal Appeals grant this petition

within the measure of its full discretion?
Page iv of 25

TEX.R.APP.P.66.3(d)

3. Did the Court of Appeals miscontrue the rule that the

Judge not comment on the weight of the evidence? TEX.CODE

CRIM.P.38.05; TEX.R.APP.P.66.3(d) Since the Trial Judge

on his own motion commented four times that the policeman

“had cartel training”, should the Court of Criminal

Appeals emphasize the Trial Judge’s duty not to comment

on the weight of the evidence lest he deprive the

defendant of a fair trial? TEX.CONST.art.I,sec.10;

U.S.CONST.amend.VI

Argument . . . . . . . . . . . . . . . . . . . . 5-13

Prayer for Relief.......................................13

Appendix.............................................. 14
Page v of 25

Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an Index of Authorities, arranged alphabetically

and indicating the pages of the petition where the authorities are cited.

INDEX OF AUTHORITIES

CASES: PAGES

Arnulfo MOLINA, Appellant, v. The STATE of Texas, Nos.

205-03, 206-03.Oct. 1, 2003. 2003 WL 22250391 . 10-11

Barnes v. State Bar of Texas,888 S.W.2d

102(Tex.App.–Corpus Christi 1994) . . . . . . . . . . 18

Blue v. State,41S.W.3d129(Tex.Crim.App.2000) . . 21-22

Com. v. Stellberger, 25 Mass. App. Ct. 148, 515 N.E.2d

1207 (1987) . . . . . . . . . . . . . . . . . . . . . 16

Drake v. State,80 S.W.1005(Tex.Crim.App.1904) . . 19-20

Friedman v. U.S., 381 F.2d 155 (8th Cir. 1967) . . . 16

Fuller v. State,363 S.W.3d 583(Tex.Crim.App.2012) . . 19

Geesa v. State,820 S.W.2d 154(Tex.Crim.App.2000) . . 18

Guiton v. State,742 S.W.2d 5(Tex.Crim.App.1987) . . 8-10

Herndon v. State, Court of Criminal Appeals of Texas, En

Banc.April 11, 1990 787 S.W.2d 408 . . . . . . . . . 11

Hicks v. Oklahoma,447 U.S.343(1980) . . . . . . . . . 14

Paulson v. State, 28 S.W.3d 570(Tex.Crim.App.2000) . 18

State v. Bennett,161 Wash.2d 303,165P.3d 1241(2007) . 16

State v. Desrosiers, 559 A.2d 641 (R.I. 1989) . . . . 16

State v. Wakefield, 190 N.J.397, 921 A.2d 954(2007) . 16

Taylor v. State, 505 S.W.2d 927 (Tex. Cr.App.1974) . 11

U.S. v. Delibac, 925 F.2d 610 (2d Cir. 1991) . . . . 16

U.S. v. Lanham, 416 F.2d 1140 (5th Cir.1969) . . . . 21

U.S. v. Pepe, 501 F.2d 1142 (10th Cir. 1974) . . . . 16

CONSTITUTIONS, CODES AND RULES

TEX.CODE CRIM.P.38.05 . . . . . . . . iv, vii, 7, 20-21

TEX.CONST.art.I,sec.10 . . . . . . . . . . . . . iv, 7
Page vi of 25

TEX.CONST.art.I,secs.13 & 19 . . . . . . . . . . . . 14

TEX.PENAL CODE 1.07 . . . . . . . . . . . . . . . . . 18

TEX.R.APP.P.66.3(d) . . . . iii, iv, 5-8, 12, 15,16, 20

U.S.CONST.amend.VI . . . . . . . . . . . . . iv, 7, 20

U.S.CONST.,amend.XIV . . . . . . . . . . . . . . . . 14

WEBSITES

FED-JI § 12:10, 1A Fed. Jury Prac. & Instr. § 12:10 (6th

ed.)Federal Jury Practice And Instructions

Criminal,Database updated August 2014 . . . . . . . . 17

h t t p : / / w w w . t x c o u r t s . g o v /

media/652326/CCA-activity-2014.pdf(accessed December 15,

2014) . . . . . . . . . . . . . . . . . . . . . . . . 13

WestlawNext: adv: ["AFFIRMATIVE LINKS" &

DA(aft2004)](accessed December 15, 2014) . . . . . . 14

www.uscourts.gov/Common/FAQS.aspx(accessed December 17,

2014) . . . . . . . . . . . . . . . . . . . . . . . . 17

h t t p : / / w w w . u s s c . g o v / s i t e s / d e f a u l t / f i l e s / p d f /

research-and-publications/research-publications/2014/FY1

3_Overview_Federal_Criminal_Cases.pdf (accessed December

17, 2014) . . . . . . . . . . . . . . . . . . . . . . 17
Page vii of 25

Pursuant to TEX.R.APP.P. 68.4(c), Petitioner includes a short statement of why oral argument would

be helpful.

Statement re Oral Argument

Oral argument would be helpful to the decisional

process because counsel and the Judges of the Court of

Criminal Appeals could discuss measuring the legal

sufficiency of the evidence in every “affirmative links”

case.

Oral argument would be useful since the Court and

Counsel could discuss the importance of an example of

insufficient affirmative links.

An example of insufficient affirmative links would

help the judges and the lawyers in Texas in comparing

their cases with the example.

The Court and Counsel could discuss whether Texas’

failure to define reasonable doubt, while intellectually

defensible, is impracticable, as exemplified by the jury’s

request for a definition in this case, and the state’s

prior longtime practice of defining the term.

The Court and Counsel could discuss whether the Court

should emphasize to Trial Judge’s throughout Texas that

they must not comment on the weight of the evidence, as

the Judge did here in saying: “THE COURT: Okay. I

believe that he told us he had cartel training.” (Court

Reporter’s Record Volume 3, Page 244-245) 

They could discuss whether the Court of Appeals

misconstrued TEX.CODE CRIM.P.art.38.05 in determining that
Page viii of 25

the comment did not deprive the defendant of a fair trial.

TEX.CONST.art.I,sec.10;U.S.CONST.amend.VI
Page 1 of 25

Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a

statement of the case, noting briefly the nature of the

case, and reserving the details of the case for statement

with the pertinent grounds or questions.

Statement of the case

The defendant was indicted for possession of a

controlled substance with intent to deliver. (Clerk’s

Record, Count I Indictment, Page 14)(Clerk’s Record, Count

II Indictment, Page 22) 

The defendant pleaded not guilty and tried the matter

to a jury. (Clerk’s Record Count I, Final Judgment, Page

101)(Clerk’s Record, Count II Final Judgment, Page 109) 

The jury found the defendant guilty as

charged.(Clerk’s Record Count I, Final Judgment, Page

101)(Clerk’s Record, Count II Final Judgment, Page 109) 

The trial court sentenced the defendant to a term of

confinement in the penitentiary.(Clerk’s Record Count I,

Final Judgment, Page 101)(Clerk’s Record, Count II Final

Judgment, Page 109) 

Petitioner timely filed a Notice of Appeal to the

Court of Appeals for the Ninth Judicial District of Texas.
Page 2 of 25

(Clerk’s Record Count I, Notice of Appeal, Page

98)(Clerk’s Record, Count II Notice of Appeal, Page 113)

The Court of Appeals for the Ninth Judicial District

affirmed the judgment of conviction and sentence imposed.

Petitioner timely filed Motions for Rehearing and

Rehearing En Banc. The Court of Appeals overruled both

Motions.

Petitioner sought and was granted an extension of time

to file this Petition for Discretionary Review from the

original due date of December 13, 2014 until a new due

date of January 14, 2015.

Petitioner timely files this Petition for

Discretionary Review.
Page 3 of 25

Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a

Statement of Procedural History.

Statement of the Procedural History of the Case

The court of appeals is the Court of Appeals for the

NINTH District of Texas.

Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of

Appeals’ judgment is October 22, 2014.

Re: TEX.R.APP.P.10.5(b)(3)(C) the case number in the Court

of Appeals is No. 09-13-00075-CR & 09-13-00072-CR.

Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for

rehearing or en banc reconsideration was filed on November

5, 2014.

On November 5, 2014, Petitioner filed both Motions for

Rehearing and Motion for Rehearing En Banc.

On December 12,2014, Petitioner sought and was granted

an extension of thirty days to file the Petition for

Discretionary Review. This Court granted an extension to

file the pdr until Jaunary 14, 2015. .

 This Petition for Discretionary Review is efiled by

filing electronically on Efile.TXCourts.gov.
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Pursuant to TEX.R.APP.P.68.4(f), Petitioner states

briefly, without argument, the questions presented for

review, expressed in the terms and circumstances of the

case, but without unnecessary detail.

GROUNDS FOR REVIEW

Summary

1. Has the Court of Appeals misconstrued the rule on

“affirmative links”?TEX.R.APP.P.66.3(d) How should a Court

of Appeals apply the doctrine of affirmative links to

determine if a rational jury could have found such a

connection based on a particular quantity of evidence?

The Court of Appeals misconstrued the rule on

affirmative links. The controlled substance was in a bag,

inside another bag, inside a compartment, under a

mattress, inside a private sleeping compartment, on a

public bus, on which were thirty-seven passengers and a

driver. There were no fingerprints. Appellant had only a

small amount of money and was not under the influence of

any intoxicating substance.

The Court of Criminal Appeals should grant this

petition and allow full briefing on the construction and
Page 5 of 25

application of the rule on affirmative links.

2. Should the Court of Criminal Appeals grant this

petition within the measure of its full discretion and

reconsider defining reasonable doubt as a purely practical

measure? TEX.R.APP.P.66.3(d) While Texas’ not defining

reasonable doubt is intellectually defensible, should the

Court of Criminal Appeals reinstate the prior practice of

defining the term as a purely practical measure?

Texas’ not defining reasonable doubt is intellectually

defensible...but impracticable, as demonstrated by the

jury’s having asked for a definition in this very weak

affirmative links case. Only Texas and Rhode Island do not

define reasonable doubt. Texas used to define reasonable

doubt, from the Republic to the modern age. Every United

States District Court defines reasonable doubt in every

criminal case. 

In the full measure of its discretion, the Court of

Criminal Appeals should reconsider its decision. It should

grant this petition and allow full briefing on whether it
Page 6 of 25

should reinstate the prior practice of defining reasonable

doubt. TEX.R.APP.P.66.3

3. Did the Court of Appeals misconstrue the rule that the

Judge not comment on the weight of the evidence? TEX.CODE

CRIM.P.38.05; TEX.R.APP.P.66.3(d)Since the Trial Judge on

his own motion commented four times that the policeman

“had cartel training”, should the Court of Criminal

Appeals emphasize the Trial Judge’s duty not to comment on

the weight of the evidence lest he deprive the defendant

of a fair trial? TEX.CONST.art.I,sec.10;

U.S.CONST.amend.VI
Page 7 of 25

GROUNDS FOR REVIEW

The error

1. The Court of Appeals for the Ninth Judicial

District has decided an important question of state law in

a way that conflicts with the applicable decisions of the

Court of Criminal Appeals. TEX.R.APP.P.66.3(c) 

The important question of state law

2. The important question is: How should a Court of

Appeals apply the doctrine of affirmative links to

determine if a rational jury could have found such a

connection based on a particular quantity of evidence?

Conflict with applicable decisions of the Court of

Criminal Appeals

The decision of the Court of Appeals for the Ninth

Judicial District conflicts with the decision of the Court

of Criminal Appeals in Guiton v. State,742 S.W.2d

5(Tex.Crim.App.1987)
Page 8 of 25

The prosecution had better evidence against Guiton

than it did against Treviño, but the Court of Criminal

Appeals found the evidence insufficient.

“In the instant case, the State sought only to

establish a relationship between appellant and

the motel room. No further attempt was made to

link appellant to the heroin. There is no

evidence that the black suitcase found in the

room was the same black suitcase carried by

appellant at the airport. There is no evidence to

show that the heroin was ever carried in the

black suitcase. There is no evidence that

appellant placed the heroin in the chair cushion.

There is nothing in the record that would even

suggest that appellant knew that the cushion of

the chair contained heroin. To convict an

individual of a criminal offense, as was done in

this case, simply because authorities have found

contraband in the furnishings of a motel room

which he has just rented and which obviously sees

an immense amount of turnover among clientele,

without some connection between the individual

and the contraband would amount to a grave

injustice. While the evidence strongly suggests

that the appellant knew the heroin was located in

the chair cushion in the hotel room, there is

little, if any, evidence affirmatively linking

the appellant to the heroin to such an extent

that it may be inferred that he exercised care,

custody, control, or management over the heroin.

Had the contraband been found in a personal item

in which ownership could have been attributed to

appellant, as in Curtis v. State, supra, our

decision would of course be different. But

control of a motel room in and of itself is not

synonymous with control of the contraband when

the appellant does not have sole access.” Guiton
Page 9 of 25

v. State,742 S.W.2d 5(Tex.Crim.App.1987)

See also: Court of Criminal Appeals of Texas.

Arnulfo MOLINA, Appellant, v. The STATE of Texas, Nos.

205-03, 206-03.Oct. 1, 2003. 2003 WL 22250391 After a

bench trial, defendant was convicted in the 147th Judicial

District Court, Travis County, Fred A. Moore, J., of

possession of more than five pounds but less than 50

pounds of marihuana and possession of at least 400 grams

of cocaine. Defendant appealed. The Austin Court of

Appeals affirmed. On discretionary review, the Court of

Criminal Appeals, Womack, J., held that: (1) defendant's

knowledge of the mere presence of drugs in the car was

insufficient to establish defendant's knowledge of his

possession of those drugs, and (2) evidence was not

sufficient to establish that defendant possessed marihuana

and cocaine.Reversed and remanded.

Conviction for possession of phenylacetone was not

sufficiently supported by evidence that defendant had

attempted to “run off” two undercover officers who had set
Page 10 of 25

up surveillance nearby house where chemical was found, and

that he attempted to flee when raid began; circumstantial

evidence did not affirmatively link defendant to

controlled substance found within residence, in that there

was no evidence of defendant's care, custody or control of

drugs found. Herndon v. State, Court of Criminal Appeals

of Texas, En Banc.April 11, 1990 787 S.W.2d 408

***

505 S.W.2d 927 Court of Criminal Appeals of Texas. Randell

Ray TAYLOR, Appellant,v.The STATE of Texas, Appellee.No.

46129.Feb. 27, 1974.The 24th Judicial District Court,

Calhoun County, Joe E. Kelly, J., found defendant guilty

of possession of marijuana, and defendant appealed. The

Court of Criminal Appeals, Roberts, J., held that finding

nine marijuana seeds having total weight of .19 gram in

various locations on floor of defendant's automobile which

was occupied by defendant and others was insufficient to

sustain conviction. Reversed and remanded.

***
Page 11 of 25

Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a

direct and concise argument, with supporting authorities,

amplifying the reasons for granting review.

ARGUMENT

The error

1. Has the Court of Appeals misconstrued the rule on

“affirmative links”? TEX.R.APP.P.66.3(d) How should a

Court of Appeals apply the doctrine of affirmative links

to determine if a rational jury could have found such a

connection based on a particular quantity of evidence?

The Court of Appeal misconstrued the rule on

affirmative links. The controlled substance was in a bag,

inside another bag, inside a compartment, under a

mattress, inside a private sleeping compartment, on a

public bus, on which were thirty-seven passengers and a

driver. There were no fingerprints. Appellant had only a

small amount of money and was not under the influence of

any intoxicating substance.

The Court of Criminal Appeals should grant this

petition and allow full briefing on the construction and

application of the rule on affirmative links.
Page 12 of 25

The important question of state law

The important question is: How should a reviewing

court determine if the evidence presented showed an

affirmative link between the defendant and the contraband?

This Petition for Discretionary Review in Context of All

Petitions Decided and Pending

The Office of Court Administration provides the

following information as of December 15, 2014:

 “Granted Petitions for Discretionary Review 84

129 213 140 73

 Petitions for Discretionary Review (includes

Granted MRH & Reinstated) 307 1,459 1,766 1,492

274

 Redrawn Petitions for Discretionary Review 13 88

101 97 4"

The first number is pending as of September 1, 2013.

The second is cases added. The third is the total on the

docket. The fourth is dispositions. The fifth is pdr’s

pending as of August 14, 2014. http://www.txcourts.gov/

media/652326/CCA-activity-2014.pdf(accessed December 15,

2014).

In the last ten years, there have been 554 Texas
Page 13 of 25

appellate cases noted by WestlawNext involving

“affirmative links”. WestlawNext: adv: ["AFFIRMATIVE

LINKS" & DA(aft2004)](accessed December 15, 2014).

The Court of Criminal Appeals should conclude that the

correct application of the doctrine of affirmative links

presents an “important question of state...law”. 

No one should be deprived of liberty without due

course of law. TEX.CONST.art.I,secs.13 & 19

The Court of Criminal Appeals should make sure that the

Courts of Appeal apply the doctrine of affirmative links

correctly.

A state must enforce its own law, lest it deprive

persons of liberty without due process of law.

U.S.CONST.,amend.XIV; Hicks v. Oklahoma,447 U.S.343(1980)

The Court of Criminal Appeals can enforce its own law by

supervising the Courts of Appeals’ application of the

doctrine of affirmative links.

The Court of Appeals incorrectly applied the doctrine of

“affirmative links”.
Page 14 of 25

In this case the controlled substance was in a bag,

inside another bag, inside a compartment, under a

mattress, inside a private sleeping compartment, accessed

through a door. Passenger(Appellant) was among 37

passengers and a driver on a public bus. He was seated

three rows away from the private sleeping compartment. He

had no controlled substance on his person. He was not

under the influence of any intoxicating material.

***

2. Should the Court of Criminal Appeals grant this

petition within the measure of its full discretion and

reconsider defining reasonable doubt as a purely practical

measure? TEX.R.APP.P.66.3(d) While Texas’ not defining

reasonable doubt is intellectually defensible, should the

Court of Criminal Appeals reinstate the prior practice of

defining the term as a purely practical measure?

Texas’ not defining reasonable doubt is intellectually

defensible...but impracticable, as demonstrated by the

jury’s having asked for a definition in this very weak
Page 15 of 25

affirmative links case. Only Texas and Rhode Island do not

define reasonable doubt. Texas used to define reasonable

doubt, from the Republic to the modern age. Every United

States District Court defines reasonable doubt in every

criminal case. 

In the full measure of its discretion, the Court

of Criminal Appeals should reconsider its decision. It

should grant this petition and allow full briefing on

whether it should reinstate the prior practice of defining

reasonable doubt. TEX.R.APP.P.66.3

Many Courts require the trial court judge to instruct

the jury on reasonable doubt. U.S. v. Delibac, 925 F.2d

610 (2d Cir. 1991); Friedman v. U.S., 381 F.2d 155 (8th

Cir. 1967); U.S. v. Pepe, 501 F.2d 1142 (10th Cir. 1974);

Com. v. Stellberger, 25 Mass. App. Ct. 148, 515 N.E.2d

1207 (1987); State v. Desrosiers, 559 A.2d 641 (R.I.

1989); State v. Bennett, 161 Wash. 2d 303, 165 P.3d

1241(2007)

Some Courts require specific language. State v.

Wakefield, 190 N.J. 397, 921 A.2d 954 (2007), cert.
Page 16 of 25

denied, 128 S. Ct. 1074 (U.S. 2008) (trial courts are not

to deviate from prescribed definition; failure to adhere

to definition, over objection, runs risk of reversible

error).

In every criminal trial before a United States

District Court, the following definition is impelled:

“A reasonable doubt is a doubt based upon reason

and common sense—the kind of doubt that would

make a reasonable person hesitate to act. Proof

beyond a reasonable doubt must, therefore, be

proof of such a convincing character that a

reasonable person would not hesitate to rely and

act upon it in the most important of his or her

own affairs.”FED-JI § 12:10, 1A Fed. Jury Prac.

& Instr. § 12:10 (6th ed.)Federal Jury Practice

And Instructions Criminal,Database updated August

2014

“In total there are 94 U.S. district courts.”

www.uscourts.gov/Common/FAQS.aspx(accessed December 17,

2014) There were more than 2,400 federal criminal trials

in 2013. http://www.ussc.gov/sites/default/files/pdf/

research-and-publications/research-publications/2014/FY1

3_Overview_Federal_Criminal_Cases.pdf (accessed December

17, 2014)
Page 17 of 25

 Lawyers have long been able to make a good-faith

argument for a modification or reversal of existing law.

DR 7–102(A)(2) Barnes v. State Bar of Texas,888 S.W.2d

102(Tex.App.–Corpus Christi 1994) Counsel notes and

considers that there were three concurring and three

dissenting opinions in Paulson v. State, 28 S.W.3d

570(Tex.Crim.App.2000), which overruled Geesa v. State,820

S.W.2d 154(Tex.Crim.App.2000), Geesa requiring a

definition of reasonable doubt and Paulson noting that

such a definition was not necessary.

This Court reexamined Geesa in Paulson. It should

reexamine Paulson. It is simply not true that reasonable

doubt has a commonly accepted meaning, any more than

“criminally negligent” or “knowingly” or “intentionally”

have commonly accepted meanings. That is why TEX.PENAL

CODE 1.07 defines those terms, which one might hear in

everyday meaning. They are words of are, even though one

might hear them used in common speech. More importantly,

they are critical to the just factfinding and legal

disposition of criminal cases. One criminally negligent
Page 18 of 25

ought not to be found guilty of intentional murder. So, we

define the difference. 

Recently This Court determined that an individual

lawyer in a particular case could ask a specific

veniremember how she felt about the federal definition of

reasonable doubt. Fuller v. State,363 S.W.3d

583(Tex.Crim.App.2012) Wouldn’t it be more effective, more

practical to return to the practice of having the very

Trial Judge simply tell the jury what reasonable doubt

means?

While one may not generalize from the specific, Fuller

is some evidence that This Court’s intellectual approach

to not defining reasonable doubt is not working. It should

pay attention to the 94 federal trial courts and their

2,400 criminal trials in 2013 in which the very Judge

simply defined the term. 

This Court should reconsider Paulson...and Geesa. This

Court has in the past noted the need for “practical

definition” (of a cause of provocation) and considered

that the absence of a practical definition was “calculated
Page 19 of 25

to confuse and mislead”.Drake v. State,80

S.W.1005(Tex.Crim.App.1904)

So it is with the absence of a definition of

reasonable doubt...witness the jury’s request for one at

the instant trial. 

The Court should grant this petition and allow full

briefing. 

3. Did the Court of Appeals misconstrue the rule that the

Judge not comment on the weight of the evidence? TEX.CODE

CRIM.P.38.05; TEX.R.APP.P.66.3(d)Since the Trial Judge on

his own motion commented four times that the policeman

“had cartel training”, should the Court of Criminal

Appeals emphasize the Trial Judge’s duty not to comment on

the weight of the evidence lest he deprive the defendant

of a fair trial? TEX.CONST.art.I,sec.10;

U.S.CONST.amend.VI

The prosecutors made out Passenger as a tool of a

cartel, a drug cartel, a “D.T.O.” The trial judge on his

own initiative said “THE COURT: Okay. I believe that he
Page 20 of 25

told us he had cartel training” in front of the jury. 

It has been over a decade since This Court reversed

for the trial judge’s commenting on the weight of the

evidence, in violation of TEX.CODE CRIM.P.art.38.05. Blue

v. State,41S.W.3d129(Tex.Crim.App.2000)[“Frankly,

obviously, I prefer the defendant to plead because it

gives us more time....] This Court noted in Blue that when

the Judge takes on the role of prosecutor, the error is

fundamental. It quoted

United States v. Lanham, 416 F.2d 1140 (5th

Cir.1969) (actions of trial judge who improperly

injected himself into role of prosecutor during

trial destroyed neutrality and impartiality of

trial atmosphere, defendant's credibility, and

defendant's presumption of innocence, and

constituted plain error) 

The Court of Criminal Appeals should grant this

petition and should allow full briefing because the

prohibition on the Judge’s commenting on the weight of the

evidence, contained in TEX.CODE CRIM.P.art.38.05, applies

in every criminal trial.

One concurring Judge in Blue noted:
Page 21 of 25

It “is clear to me that the violation of the

right to an impartial judge is an absolute right.

The judge's comments in this case violated that

r i g h t . ” B l u e v .

State,41S.W.3d129,138(Tex.Crim.App.2000)[Mansfi

eld,J,concurring)

The evidence in this case was tenuous. The trial

Judge’s comments aided the prosecutor by letting the jury

know that the Judge thought the witness who was to connect

the defendant to the controlled substance “had cartel

training”. 

The Judge’s comment was the link the jury needed to

find the defendant guilty. 

The Court of Criminal Appeals should grant this

petition, allow full briefing, and use this case as an

example of what trial judges are not supposed to do. 

Every lawyer in Texas who practices criminal law knows

about Blue. “What? The trial judge told the jury he wished

the defendant would plead guilty?” 

Every judge in Texas who tries criminal cases should

know about the Bus Passenger’s case, this case. This Court
Page 22 of 25

should grant this petition so that that can happen and so

that this egregious error can be avoided. 

Conclusion and prayer for relief

Correctly applying the doctrine of affirmative links,

making a practical rather than an intellectual decision to

define reasonable doubt, and reiterating the rule that the

Judge not comment on the weight of the evidence since the

right to an impartial judge is fundamental, all merit the

granting of this petition and full briefing.

Respectfully submitted

December 26, 2014.

/s/Larry Warner 

Larry Warner,

Counsel for Petitioner

3109 Banyan Circle

Harlingen, Texas 78550

Phone (956)230-0361 

email: office@larrywarner.com

website: www.larrywarner.com

Texas Bar#20871500;USDC,SDTX

1230; Board Certified, Criminal

Law, Texas Board of Legal

Specialization(1983)

Member of the Bar of the

Supreme Court of the United

States (1984)
Page 23 of 25

In the Court of Criminal Appeals of Texas

No.# PD-1626-14

on Petition for Discretionary Review of the following:

09-13-00075-CR

09-13-00072-CR

IN THE COURT OF APPEALS 

FOR THE NINTH DISTRICT OF TEXAS

RAMIRO TREVIÑO, JR. VS. STATE OF TEXAS

ON DIRECT APPEAL FROM THE 355TH DISTRICT COURT OF

MONTGOMERY COUNTY

TRIAL COURT NO.12-06-06351-CR

CERTIFICATE OF SERVICE

I mailed on a copy of the Petition for Discretionary

Review to: District Attorney, Texas and to State

Prosecuting Attorney, P.O. Box 12405, Austin, TX 78711 on

December 26, 2014.

LAW OFFICE OF LARRY WARNER

RESPECTFULLY SUBMITTED,

December 26, 2014,

By:

 /s/Larry Warner 

 Larry Warner

Counsel for Petitioner
Page 24 of 25

Pursuant to Tex.R.App.Proc.9.4(i) Appellant provides

this Certificate of Compliance:

I, the undersigned counsel, certify that this reply

brief was prepared using WordPerfect X3 and complies

with TexR.App.Proc. 9.4 and contains 3,306 words.

RESPECTFULLY SUBMITTED,

DECEMBER 26, 2014.

/s/Larry Warner

Larry Warner

Attorney for Appellant

3109 Banyan Circle

Harlingen, Texas 78550

PHONE 956 230 0361;

FAX 866 408 1968

email: office@larrywarner.com

website: larrywarner.com

State Bar of Tx 20871500;

USDC,SDTX 1230(1981)

Board.Certified,Criminal Law,

Texas Board Legal

Specialization(1983)

Member of the Bar of the

Supreme Court of the United

States(1984)
Page 25 of 25

APPENDIX

Order

A copy of the Order denying the Motions for

Rehearing is unavailable. In a Petition for

Discretionary Review, the Court of Criminal Appeals of

Texas may take judicial notice of documents in the lower

court in the same case. 

An “appellate court may take judicial notice of

its own records in the same or related

proceedings involving same or nearly same

parties, 1. Huffman v. State, 479 S.W.2d 62, 68

(Tex.Cr.App.1972); Ex parte Flores, 537 S.W.2d

458 (Tex.Cr.App.1978)” Turner v. State,733

S.W.2d 218,223 hn1(Tex.Crim.App.1987

The website of the Court of Appeals for the NINTH

District notes:

“9/16/2010 Motion disposed Appellant 

8/24/2010 Exceptions filed Appellant 

Event Type: Motion disposed 

Description: Appellant 

Date: 9/16/2010 

Disposition: Motion or Writ Denied 

Opinion Written:” 
1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-13-00072-CR

NO. 09-13-00075-CR

____________________

RAMIRO TREVINO JR., Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 410th District Court 

Montgomery County, Texas

Trial Cause No. 12-06-06351 CR (Count I and II) 

________________________________________________________ _____________

MEMORANDUM OPINION

 

A jury convicted Ramiro Trevino Jr., appellant, of two counts of possession 

of a controlled substance with intent to deliver. Trevino elected to have the trial 

court assess his punishment and the trial court assessed his punishment at thirty 

years on each count, to be served concurrently. On Count I, Trevino was charged 

with possession of 400 grams or more of cocaine with intent to deliver, and on 
2

Count II, Trevino was charged with possession of 400 grams or more of heroin

with intent to deliver. Trevino appeals.

1 

Underlying Facts

 According to the evidence in the record, on the evening of June 10, 2012, 

Montgomery County Sheriff’s Deputy David Everton conducted a traffic stop of a 

1999 model passenger bus traveling northbound on Highway 59 in Montgomery 

County, Texas. Everton stopped the bus because it had a defective taillight and,

when he checked the vehicle’s out-of-state license plate number through his 

onboard computer system, the vehicle description for that license plate did not 

match the vehicle. The driver of the bus was Juan Vorrath, an employee of El 

Expreso Bus Service. A number of the passengers on the bus were traveling from 

Houston to Chicago. 

Deputy Everton testified that he has special training relating to Drug 

Trafficking Organizations (DTOs), and that such organizations often use major 

corridors like Highway 59 and Interstate 45 to transport narcotics and contraband 

that they then disperse throughout the United States. Further, the vehicles used by 

the DTOs often are actually registered to third-parties, and the drugs are hidden in 

either a natural or man-made compartment to avoid detection. Everton has found 

 1

On appeal, Count I is docketed under No. 09-13-00072-CR and Count II is 

docketed under No. 09-13-00075-CR. 
3

drugs or contraband in various areas of a vehicle, including windshield wiper 

voids, brake lights, spare tires, head liners, and in objects inside the vehicle like 

water bottles. The courier is often given limited information from the DTO, but 

the courier knows that contraband or narcotics is being transported. The courier is 

paid a fee to watch the load, make sure no one tampers with it, and confirm that it 

gets to its destination. According to Montgomery County Sheriff’s Department 

Detective Jeffrey Scott Spencer, who is assigned to the Narcotics or Special 

Investigation Unit, the DTOs are made up of a network of individuals that may or 

may not know each other, but all of the individuals are working together to 

transport and distribute drugs and contraband.

When Deputy Everton stopped the bus, Vorrath, the bus driver, opened the 

door to the bus to speak to Everton. Everton noticed that the driver kept his hands 

on the steering wheel and would not make eye contact with Everton. When 

Everton was talking to the driver, Everton noticed a passenger (later identified as 

Trevino) stand up in the back of the bus. The passenger was “acting in a nervous 

manner” and “pacing back and forth.” Everton testified that it appeared the 

passenger was looking for a back way to get off the bus. None of the other 

passengers acted upset or nervous. According to Everton, the bus driver gave 

Everton permission to search the bus. With the assistance of a K-9 narcotics dog, 
4

Deputy Everton searched the bus. The dog alerted to a “sleeper berth” area, an area 

typically used by the drivers. Drugs were located beneath a mattress in a hidden 

compartment cut out of the flooring of the sleeper berth area on the bus. Trevino 

had been sitting in the “approximate location” of the sleeper berth, where law 

enforcement found the drugs. There was fresh sawdust in the inside of the 

sleeper berth. Inside Trevino’s luggage, they found a sanding device which 

Deputy Everton testified is consistent with the type of tool a person might use to 

create hidden compartments for hiding contraband. Everton testified that when he 

boarded the bus to speak with the driver, Trevino was the only passenger who 

stood up, and Trevino was standing in the area where the drugs were found. 

Law enforcement attempted to obtain fingerprints from the bundles or 

packaging of the drugs, but no fingerprints were obtained. The lack of fingerprints 

did not surprise the officers. According to Deputy Everton, drug couriers often 

“wear gloves to keep from, number one, touching [the packaged drugs] and 

keeping the chemicals from absorbing into their—into their blood stream.” 

Furthermore, Everton testified the bundles recovered “were covered in axle grease 

and mustard and then wrapped in cellophane, and then more axle grease and 

mustard, and then vacuum sealed together.” 
5

Other law enforcement officials also assisted in the investigation at the scene 

of the stop, including Deputy Alfredo Aguirre and Splendora Police Corporal 

Eddie Hernandez. Hernandez speaks fluent Spanish and has special training in 

drug interdictions and apprehending couriers and drug dealers. Both Aguirre and 

Hernandez observed Trevino acting nervous and talking to the bus driver after 

everyone exited the bus. Hernandez testified that he observed Trevino and the bus 

driver talking to one another and that Trevino appeared to be “nervous.” Further, 

he observed that Trevino’s seat was in “the approximate location” of the sleeper 

berth towards the back of the bus, and that in his opinion the demeanor of Trevino

and the bus driver indicated guilt when the hidden compartment was discovered. 

When the passengers were interviewed by the law enforcement personnel at 

the scene, several of the passengers told Deputy Everton that during the trip the 

driver and Trevino both paid particular attention to the sleeper berth, and that 

Trevino got mad at another passenger that attempted to look inside the berth. The 

driver and Trevino told passengers on the bus that they were “not to go in it

for any reason.” One of the passengers, A.G., testified that Trevino told the other 

passengers not to go near the sleeper berth and that he got mad at her when her 

eight-year-old daughter, also a passenger on the bus, tried to look inside the sleeper 
6

berth. A.G. further testified that she was extremely frightened when she learned 

that the bus was transporting drugs.

Trevino and the driver were both detained and questioned. Detective 

Spencer obtained a statement from Trevino and the statement was admitted into 

evidence without objection from Trevino. Trevino initially told Detective Spencer

that he was on the bus traveling to Blytheville, Arkansas, to work in a “cotton 

field.” Trevino had in his possession upon arrest a one-way ticket to Blytheville, 

Arkansas, that he paid for with cash. According to Detective Spencer, Trevino also 

admitted that he told passengers to stay away from the sleeper berth but he claimed 

he only warned them to stay away “because they have personal stuff in there.” 

Trevino denied acting “aggressively” toward any of the passengers. According to 

Detective Spencer, Trevino’s luggage and its contents did not match his story. 

Trevino was also found in possession of a cellular phone and a series of text 

messages were recovered from it. Detective Spencer testified that some of the 

conversations were with an unidentified person with a 214 area code. A summary 

of some of the messages from the cellular phone was admitted into evidence 

without any objection from Trevino. According to Detective Spencer, the text 

messages to and from Trevino’s wife were inconsistent with Trevino’s story about 
7

traveling to Blytheville, Arkansas, and there were some messages that “were 

specifically talking about -- about drugs, the purchase of drugs, narcotics.”

Issues on Appeal

In his corrected appellate brief, Trevino states that his issues include what he 

phrases as eleven issues. Taking the corrected brief as a whole, and combining the 

related or restated issues, we summarize the issues Trevino raises as follows:

1. The evidence is legally insufficient to sustain the verdict.

2. The trial court committed reversible error when it instructed the jury “on the 

presumption of innocence.”

3. The trial court committed reversible error when it refused to provide the jury 

with a definition of “reasonable doubt.”

4. The trial court committed reversible error in denying Trevino’s motion for 

mistrial which was made during the State’s closing argument.

5. The State’s reference to “community expectations” during closing argument was 

improper, and constituted fundamental constitutional error. 

6. The trial court committed reversible error in conducting the hearing on the 

motion to suppress in the presence of the jury.

7. The State’s argument during the punishment phase was improper and in 

violation of article I, section 10 of the Texas Constitution. 

8. The trial court committed fundamental error in commenting on the weight of the 

evidence when it referred to a “drug cartel.”

9. Trevino’s trial counsel provided ineffective assistance of counsel by failing to 

object to the trial judge’s alleged comment on the weight of the evidence 

connecting the defendant to a drug cartel.
8

10. The trial court erred in admitting testimony from one of the State’s witnesses 

regarding the “societal costs of drug use[.]” 

11. The clerk committed reversible error by improperly conducting a “shuffle” of 

the panel.

Legal Sufficiency of the Evidence

In Trevino’s first issue he challenges the legal sufficiency of the evidence to 

sustain the jury’s verdict. More specifically, he argues that there is insufficient 

evidence of “knowledge” and that the evidence was “inadequate” to show 

“affirmative links” between the contraband and Trevino.2 Trevino contends that he 

was merely one of many passengers on the bus and that the drugs were “found in a 

secret compartment, under a mattress, in a bag, under a trapdoor, inside a private 

sleeping compartment for relief drivers, while [as a] passenger [he] was in the 

public area of the bus.” 

The “Jackson v. Virginia legal-sufficiency standard is the only standard that 

a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove 

beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. 

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In evaluating 

 2

In his brief Trevino challenges the legal sufficiency of the evidence 

regarding possession, and he does not challenge the intent-to-deliver element of the 

offense. See Tex. Health & Safety Code Ann. § 481.112(f) (West 2010).
9

the legal sufficiency of the evidence, we review all the evidence in the light most 

favorable to the verdict to determine whether any rational fact finder could have 

found the essential elements of the offense beyond a reasonable doubt. Id. at 902 

n.19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 

The jury is the ultimate authority on the credibility of witnesses and the 

weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State, 

623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s 

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, 

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 

S.W.3d at 13. If the record contains conflicting inferences, we must presume that 

the jury resolved such facts in favor of the verdict and defer to that resolution. 

Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. 

Crim. App. 2007). We also determine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence 

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 

778. We may not substitute our judgment concerning the weight and credibility of

the evidence for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. 

App. 2000). Furthermore, the jury is the sole judge of the credibility of the 

witnesses and is free to accept or reject some, all, or none of the evidence 
10

presented by either side. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 

2008). 

To establish possession of a controlled substance the State must establish 

that the person voluntarily “possessed” the contraband. See Tex. Penal Code Ann. 

§ 6.01(a) (West 2011). Possession is voluntary “if the possessor knowingly obtains 

or receives the thing possessed or is aware of his control of the thing for a 

sufficient time to permit him to terminate his control.” Id. § 6.01(b) (West 2011).

When a defendant does not have exclusive possession of the place where the 

contraband was found, the reviewing court must examine the record to determine if 

there are additional independent facts that “affirmatively link” the defendant to the 

contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). 

The requirement of “affirmative links” is aimed at protecting innocent bystanders 

from conviction based solely on their proximity to someone else’s contraband. Id.

Some of the factors recognized by courts to “affirmatively link” a defendant 

to contraband include whether: (1) the defendant was present during the search; (2) 

the contraband was found in plain view; (3) the defendant was in proximity to and 

had accessibility to the contraband; (4) the defendant had a right of possession to 

the place where the contraband was found; (5) the defendant made incriminating 

statements when arrested; and (6) the defendant’s conduct indicated a 
11

consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. 

App. 2006); Nixon v. State, 928 S.W.2d 212, 215 (Tex. App.—Beaumont 1996, no 

pet.). It is “not the number of links that is dispositive, but rather the logical force of 

all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162. 

The record reveals “affirmative links” that a rational fact finder could have 

concluded connect Trevino to the heroin and cocaine found on the bus. The drugs 

were found in a sleeper berth in an area near Trevino’s seat on the bus, Trevino 

warned other passengers to stay away from the sleeper berth and visibly got upset 

when another passenger tried to open the door to the sleeper berth, Trevino was the 

only passenger that stood when police entered the bus, Trevino appeared nervous 

and looked like he was trying to find an exit off the bus and paced back and forth, 

Trevino gave a statement at the scene, and the information he provided to the 

officers did not fit with where he was going, what he intended to do, and why he 

had the possessions that he did. Trevino was also found with a cellular phone that 

contained text messages that “were specifically talking about -- about drugs, the 

purchase of drugs, narcotics.”

Viewing the evidence in the light most favorable to the verdict, we conclude 

that there are sufficient affirmative links to enable a rational jury to have 

determined that Trevino was in possession of the drugs recovered from the bus, 
12

and the evidence was legally sufficient to support Trevino’s convictions on both 

counts. See Evans, 202 S.W.3d at 162; Brooks, 323 S.W.3d at 902, n.19. We 

overrule issue one.

Instruction Regarding Presumption of Innocence

In his second issue, Trevino complains that the trial judge improperly stated 

the presumption of innocence when she read the charge aloud to the jury. 

Specifically, Trevino complains of the following statement made by the trial court 

when reading the charge: “The presumption of innocence alone is sufficient to

acquit the Defendant unless the jurors aren’t satisfied, beyond a reasonable doubt, 

of the Defendant’s guilt after careful and impartial consideration of all the evidence

in the case.” (emphasis added). The written charge states as follows: “The 

presumption of innocence alone is sufficient to acquit the defendant unless the

jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful 

and impartial consideration of all the evidence in the case.” (emphasis added).

During the trial, Trevino made no objection to the charge as read or submitted to 

the jury.

When the appellant fails to make an objection to an alleged jury charge at 

trial, an appellant must show that the alleged error created “egregious harm,” i.e., 

such harm that he did not have a fair and impartial trial. See Almanza v. State, 686 
13

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Egregious harm is present 

where the error goes to the very basis of the case or vitally affects the defensive 

theory. See Ex parte Smith, 309 S.W.3d 53, 63 (Tex. Crim. App. 2010). The actual 

degree of harm is assessed in light of the entire jury charge, the state of the 

evidence, the arguments of counsel, and any other relevant information in the 

record. See Almanza, 686 S.W.2d at 171. Reviewing courts should use common 

sense in determining whether there is a reasonable likelihood that the jury was 

misled. See Mireles v. State, 901 S.W.2d 458, 460 (Tex. Crim. App. 1995).

The alleged error appears to involve one word wherein the trial judge was 

heard to say “aren’t” rather than “are” as contained in the written charge which was 

submitted to the jury. We conclude that the alleged misreading of the one word by 

the trial judge did not amount to “egregious harm,” especially when considered in 

light of the remainder of the charge as a whole both as read to the jury and as 

written and given to the jury, as well as in light of the arguments of counsel made 

during closing argument and the overall context. The court simply misread a word 

in the charge. In the context of the alleged misreading, the mistake was cured by 

the submission of a correct written instruction. See Ramirez v. State, No. AP76100, 2011 WL 1196886, at *18 (Tex. Crim. App. Mar. 16, 2011) (not designated 

for publication) (“The context makes clear that the trial court simply misread one 
14

word of the written jury instruction[,]” finding no error.); Gulf Ins. Co. v. Gibbs, 

534 S.W.2d 720, 725-26 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ ref’d 

n.r.e.) (the incorrect reading of a charge was corrected by the submission of a 

written charge). We overrule this issue.

Trial Court’s Refusal 

to Provide the Jury a Definition of “Reasonable Doubt”

During the jury deliberation, the jury sent a question to the court wherein the 

jury asked: “Can we get read a definition of reasonable doubt?” The trial court 

provided a written response to the question as follows: “We cannot answer your 

question. Please continue to deliberate.” At trial, both the State and Trevino agreed 

with the response that was provided by the trial court.

Trevino argues for the first time on appeal that the trial court committed

reversible error when it refused to provide the jury with a definition of “reasonable 

doubt.” Trevino argues the trial court should have provided the jury with a 

definition of “reasonable doubt,” and further that the failure to do so, when 

combined with the alleged error regarding the presumption of innocence, amounts 

to a constitutional violation of Trevino’s due process rights under the Fourteenth 

Amendment to the U.S. Constitution and the due course of law provision to the 

Texas Constitution. 
15

In Texas, a jury instruction regarding the definition of “reasonable doubt” is 

no longer required. Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The 

Court of Criminal Appeals has overruled prior precedent requiring that the jury in a 

criminal case be instructed on the definition of “beyond a reasonable doubt”

holding that “the better practice is to give no definition of reasonable doubt at all to 

the jury.” Id. at 573 (footnote omitted). However, the Court in Paulson also noted 

that if both parties were to agree on a submitted definition, “it would not constitute 

reversible error for the trial court to acquiesce to their agreement.” Id. There is 

nothing in the record before us to indicate that Trevino objected to the instruction 

at issue. Furthermore, Trevino did not submit a requested instruction on the 

definition of “beyond a reasonable doubt,” and the parties did not agree upon a 

definition thereof. Trevino and the State agreed on the record with the answer the 

trial court provided to the jury’s question. Therefore, we conclude the trial court 

did not commit error in refusing to provide a definition of “reasonable doubt.”3 Id. 

We overrule this issue.

Trial Court’s Refusal to Grant a Mistrial and 

 3

Because we have determined that the trial court did not commit error, we 

need not address Trevino’s constitutional challenge wherein he argues that the 

alleged error caused “egregious harm” and violated his due process rights under 

the Fourteenth Amendment to the U.S. Constitution and the due course of law 

provision to the Texas Constitution. See Tex. R. App. P. 44.2.
16

Statements Made During Closing Arguments

Next, Trevino argues that the trial court committed reversible error in 

refusing to grant him a mistrial in response to the State’s closing argument. More 

specifically, he says: “The state argued that the defendant should have presented 

witnesses to prove he was a ‘good guy’ . . . in derogation of the court’s charge that 

he had no duty to present evidence.” The following exchange occurred during the 

State’s closing argument:

STATE’S ATTORNEY: If this guy was such a great guy -- we didn’t 

hear from one person in his family. He didn’t even put his mom on the 

stand.

DEFENSE ATTORNEY: Objection. You told the jury, and it’s in the 

instruction, we don’t have to do any of that. That is improper 

argument, Judge.

THE COURT: I’ll sustain the objection.

DEFENSE ATTORNEY: We’ll ask for a limiting instruction, Judge.

THE COURT: Ladies and gentlemen of the jury, please disregard the 

comment of Counsel.

DEFENSE ATTORNEY: Judge, at this time we’re going to move for a 

mistrial.

THE COURT: I’m going to deny your request.

We review a trial court’s decision to grant or deny a motion for mistrial 

under an abuse of discretion standard. See Archie v. State, 221 S.W.3d 695, 699 
17

(Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 

2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We will uphold 

the trial court’s decision if it is within the zone of reasonable disagreement. See 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In reviewing 

the trial court’s decision to deny a mistrial, the reviewing court will focus on the 

“severity of the misconduct,” the curative measures taken by the trial court, and the 

certainty of conviction absent the misconduct. See Hawkins, 135 S.W.3d at 77. In 

most cases, the trial court’s instruction to disregard will cure any error. Wesbrook 

v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

A defendant has a right not to testify at his trial under the Texas and United 

States Constitutions, as well as under Texas statutory law. U.S. Const. amend. V; 

Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). 

And, a prosecutor’s comment regarding the defendant’s failure to testify amounts 

to an impermissible comment only if, when viewed from a jury’s standpoint, the 

comment is manifestly intended to be, or is of such character that a typical jury 

would naturally and necessarily take it to be, a comment on the defendant’s failure 

to testify. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante 

v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
18

In the case before us, however, Trevino is not arguing that the State 

commented upon his failure to testify, but rather that the State commented about 

his failure to call any witnesses. Our courts have consistently held that the State 

may argue in its closing argument that the defendant failed to present evidence in 

his favor. See Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005) (stating 

that State may comment on defendant’s failure to call certain witnesses and such 

comment is not impermissible attempt to shift burden of proof); Jackson v. State, 

17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (prosecutor’s reference during closing 

argument to defendant’s failure to produce expert testimony was not improper 

because the remark did not fault the defendant for exercising his right not to 

testify); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) (holding 

that a prosecutor’s comment is not improper if it “can reasonably be construed to 

refer to appellant’s failure to produce evidence other than his own testimony”); 

Rodgers v. State, 486 S.W.2d 794, 797 (Tex. Crim. App. 1972) (explaining that a 

prosecutor may comment on the accused’s failure to call a witness absent a 

showing that the witness was incompetent or that the accused could not, despite his 

exercise of due diligence, secure the witness’s attendance at the trial); Baines v. 

State, 401 S.W.3d 104, 107-08 (Tex. App.—Houston [14th Dist.] 2011, no pet.) 

(holding that a prosecutor’s comment on the defense’s failure to subpoena two 
19

witnesses was not error); Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (noting that “[d]uring jury argument, the State 

may comment on appellant’s failure to present evidence in his favor”); Lee v. State, 

21 S.W.3d 532, 544 (Tex. App.—Tyler 2000, pet. ref’d) (prosecutor’s comment 

on the accused’s failure to call the doctor that the accused told a witness he had 

taken the victim to see was not improper jury argument).

Considering the entirety of the State’s argument and the context of the 

statements at issue, we conclude that the trial court did not commit error in 

refusing to grant a mistrial. Furthermore, we find that the error, if any, had but a 

minimal effect and was cured by the trial court’s instruction to disregard the 

comments. See Wesbrook, 29 S.W.3d at 115. Moreover, on this record, the jury 

would have convicted Trevino even absent the alleged misconduct. See id. We 

overrule this issue. 

In addition to the foregoing, Trevino also contends that the State made 

improper arguments during the closing that referred to “community expectations” 

and constituted fundamental error. The last statement made by the State during its 

closing was as follows:

If you want our community to be known as a place that does not 

tolerate this crap and what it brings and the collateral effects, you 

respond with one word twice, “Guilty.” Thank you.
20

And, Trevino argues on appeal that the State made “bolstering” arguments about 

the officers or law enforcement personnel. During trial, the defense made no 

objection to the statements. Trevino contends on appeal that the arguments caused 

harmful error because he contends the evidence in this case “was so weak and 

depended so much on the credibility of the officers[.]” 

In general, a proper jury argument will fall within what courts generally 

describe as one of four categories: summation of the evidence, reasonable 

deductions from the evidence, response to opposing counsel’s arguments, and 

pleas for law enforcement. See Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. 

App. 2000). Nevertheless, it is improper for the State to argue that the community 

expects a certain verdict or punishment. See Borjan v. State, 787 S.W.2d 53, 56 

(Tex. Crim. App. 1990). The State may, however, request the jury to represent or 

be the voice of the community when reaching its verdict. See Cortez v. State, 683 

S.W.2d 419, 421 (Tex. Crim. App. 1984). The State may also properly remind the 

jury that its decision can reflect a desire for strong law enforcement. See Goocher 

v. State, 633 S.W.2d 860, 864-65 (Tex. Crim. App. 1982). 

Furthermore, to preserve error in cases of alleged prosecutorial misconduct, 

the defendant must: (1) make a timely and specific objection; (2) request an 

instruction that the jury disregard the matter improperly placed before the jury; and 
21

(3) move for a mistrial. Tex. R. App. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 

89 (Tex. Crim. App. 1996). Here, in addition to his failure to object to the 

prosecutor’s statement, Trevino failed to request a jury instruction and move for a 

mistrial. See Tex. R. App. P. 33.1(a); see also Cockrell, 933 S.W.2d at 89. 

Accordingly, we overrule Trevino’s arguments relating to this issue.

Motion to Suppress

Prior to the beginning of the trial Trevino filed a Motion to Suppress the 

evidence obtained from the traffic stop arguing that the search of the vehicle was 

“illegal, since conducted without a valid warrant, or probable cause, or reasonable 

suspicion, in violation of the Fourth and Fourteenth Amendments to the United 

States Constitution, Article I § 9 of the Texas Constitution and Article 38.23 of the 

Texas Code of Criminal Procedure.” The trial court asked the attorneys at the 

beginning of the trial about pretrial matters and the following discussion took place 

in reference to the Motion to Suppress:

THE COURT: Okay. So what do you want to deal with right now, 

before we bring the jury in?

DEFENSE ATTORNEY: I’ll leave that to your discretion.

THE COURT: Well, we can deal with extraneous --

DEFENSE ATTORNEY: We can probably put a halt to the day with 

my Motion to Suppress Evidence regarding the traffic stop.
22

STATE’S ATTORNEY: I respectfully ask that we just carry it with the 

trial.

THE COURT: That’s what I want to do.

DEFENSE ATTORNEY: You’re the judge. But if we could have -- if 

we could go over the Motion in Limine. I believe I provided that

yesterday. I don’t know if there’s objections to it.

THE COURT: Okay. Have -- Mr. -- Mr. [Prosecutor], have you seen 

his Motion in Limine?

When the State called Deputy Everton as a witness during the trial, defense 

counsel notified the trial court that Everton was the witness that made the stop and 

that the Motion to Suppress related to his testimony.

DEFENSE ATTORNEY: This gentleman is the one who made the 

stop, and he is the one who we have the Motion to Suppress, because 

of his stop.

STATE’S ATTORNEY: You can carry it. I can --

THE COURT: I’ll just listen to it now.

DEFENSE ATTORNEY: The motion?

THE COURT: Yeah. I mean -- right, yeah.

DEFENSE ATTORNEY: Thank you.

THE COURT: Thank you for alerting me.

DEFENSE ATTORNEY: Yes, ma’am.

(Proceedings at the bench concluded.)
23

DEFENSE ATTORNEY: Are we going to have our hearing with the 

jury present?

THE COURT: I was going to do it in front of the jury.

DEFENSE ATTORNEY: Okay. May I proceed?

THE COURT: Yes.

After hearing the testimony, the trial court denied Trevino’s motion to suppress.

Under article 28.01 of the Texas Code of Criminal Procedure, the trial court 

is vested with the discretion of whether or not to hold a hearing on a pre-trial 

motion to suppress. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6) (West 2006). 

The court can hold the hearing, or it can choose to determine whether to suppress 

the evidence complained of during the trial on the merits after a proper objection is 

lodged. See id.; Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); 

Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). 

Texas Rule of Evidence 103(c) states “to the extent practicable,” 

proceedings “shall be conducted . . . so as to prevent inadmissible evidence from 

being suggested to the jury by any means[.]” Tex. R. Evid. 103(c). And, Texas 

Rule of Evidence 104(c) states that: “In a criminal case, a hearing on the 

admissibility of a confession shall be conducted out of the hearing of the jury. All 

other civil or criminal hearings on preliminary matters shall be conducted out of 
24

the hearing of the jury when the interests of justice so require or in a criminal case 

when an accused is a witness and so requests.” Tex. R. Evid. 104(c).

No objection on this issue appears in the record, and the failure to object 

ordinarily waives the issue on appeal. See Tex. R. App. P. 33.1. Admitting that he 

failed to object, Trevino argues in his brief that conducting the Motion to Suppress 

hearing in the presence of the jury was a “fundamental error” for which no 

objection was required. In support of his argument, he relies on Jackson v. Denno, 

378 U.S. 368 (1964). 

In Denno, the United States Supreme Court discussed the New York 

statutory procedure used by New York courts which allowed submission of the 

issue of the “voluntariness” of a confession to be submitted to a jury in the same 

proceeding as the guilt or innocence proceeding. The Supreme Court concluded 

that the New York procedure violated the due process clause of the Fourteenth 

Amendment. See Denno, 378 U.S. at 387-88. We find Denno inapplicable because 

Trevino’s Motion to Suppress does not pertain to the voluntariness of a 

confession.4

 

 4

Trevino also cites to Davis v. State, 368 So.2d 880 (Ala. Crim. App. 1979), 

for his argument that “[t]here is no difference between [a] hearing in the presence 

of the jury [for] suppression of a confession and [a] hearing in the presence of the 

jury [for] suppression of narcotics.” The Alabama opinion is not controlling on this 

Court and it does not support his argument. The Alabama Court of Criminal 
25

In the case at bar Trevino agreed to the procedure adopted by the trial court 

to carry the motion to suppress in the trial, and then implicitly agreed to allow the 

motion to suppress to be heard “in the presence of the jury.” We conclude, based 

upon the record before us, that Trevino waived his objection. Tex. R. App. P. 33.1.

We overrule this issue.

Ineffective Assistance of Counsel

Trevino asserts that he was denied effective assistance of counsel during the 

guilt or innocence phase of the trial. Specifically, Trevino complains in two stated 

issues that his counsel was ineffective because he “failed to object to the trial 

judge’s comment on the weight of the evidence connecting the defendant to a drug 

cartel.” To prevail on a claim of ineffective assistance of counsel, Trevino must 

satisfy a two-pronged test: 

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious 

that counsel was not functioning as the “counsel” guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must show 

that the deficient performance prejudiced the defense. This requires 

 

Appeals, in finding the trial court erred in refusing a hearing on defendant’s motion 

to suppress outside the presence of the jury and in overruling his objection to such 

admission made during the trial, noted that there were “multiple efforts on the part 

of [Davis] to prevent the evidence being admitted: (1) by written motion to 

suppress and (2) by oral objection during the trial on the merits.” Id. at 882.

Therefore, the facts in Davis are distinguishable from the facts in this case.
26

showing that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a 

reasonable probability that, but for his counsel’s errors, the outcome would have

been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

“Appellate review of defense counsel’s representation is highly deferential and 

presumes that counsel’s actions fell within the wide range of reasonable and 

professional assistance.” Id. 

Trevino must prove that there was no plausible professional reason for the 

specific acts or omissions of his counsel. See id. at 836. Furthermore, “[a]ny 

allegation of ineffectiveness must be firmly founded in the record, and the record 

must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). The bare record on direct appeal is 

usually insufficient to demonstrate that “counsel’s representation was so deficient 

and so lacking in tactical or strategic decisionmaking as to overcome the 

presumption that counsel’s conduct was reasonable and professional.” Bone, 77 

S.W.3d at 833 (citation omitted). With a silent record, we cannot presume that 

counsel’s conduct constituted ineffective assistance. See id.; Thompson, 9 S.W.3d 

at 813-14.
27

Furthermore, Trevino has failed to establish that, but for counsel’s alleged 

errors and omissions, the outcome of his trial would have been different. See Bone, 

77 S.W.3d at 833, 836-37. Even if trial counsel had objected to the reference made 

by the trial court to a “drug cartel,” the evidence was still legally sufficient, based 

on the testimony from the witnesses and evidence admitted at trial, for the jury to 

have found Trevino guilty on both counts. See Garcia v. State, 563 S.W.2d 925,

928 (Tex. Crim. App. 1978); West v. State, 121 S.W.3d 95, 111 (Tex. App.—Fort 

Worth 2003, pet. ref’d); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston 

[14th Dist.] 2002, pet. ref’d). Trevino’s issues regarding alleged ineffective 

assistance of counsel are overruled.

Testimony about Effects of Drugs

In his next issue, Trevino contends that the testimony presented to the jury

by the State “about societal costs of drug use” was improper and inadmissible. 

With respect to this issue, the record reveals Trevino made only one objection on 

relevancy grounds to one specific question, which was sustained. Trevino failed to 

object to any of the other questions relating to the subject or to seek a running 

objection. 

Q. And what sort of -- what sort of effects do these drugs have on the 

individual that uses them?
28

A. Well, they cause them -- I mean, they become addicted to them.

That’s pretty much the only thing that they want. They’ll do whatever 

they have to do or whatever they need to do to get it.

They’ll spend all their money, their savings, spend everything, 

sell whatever they have to to be able to -- in order to get that high, that 

euphoria, I guess.

Q. And do -- once that euphoria -- is the euphoria for something like 

crack very intense but brief?

A. Yes.

Q. And then if I talk about somebody crashing off of it, what am I 

talking about?

A. When the high is gone and they’re craving it again.

Q. Okay. So is there -- is the -- the guy in the --

DEFENSE ATTORNEY: Your Honor, I’m going to object to 

relevance.

THE COURT: Sustained.

STATE’S ATTORNEY: Okay.

Q. Needless to say, is it safe to say that based upon what you know, 

and the folks that you’ve dealt with over the years, being with the 

Sheriff’s Department and the D.E.A., you know of the effects that

cocaine and heroin, in this case, have upon property crimes, crimes 

against people, and destroying communities?

A. Yes, very much.

Based on our review of the record, we conclude that Trevino waived his 

objection to the testimony in question. Texas law requires a party to continue to 
29

object each time the allegedly inadmissible evidence is offered, unless the defense 

counsel requests a running objection or objects out of the presence of the jury to all 

testimony he deems objectionable on a given subject. Ethington v. State, 819 

S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Additionally, error in the admission 

of evidence is cured when the same evidence comes in elsewhere without 

objection. Id.at 858; see also Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. 

App. 1996); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). 

Trevino did not object until the subject had already been discussed by the witness 

in response to several other questions, and he also did not object to the follow up 

questions by the State after his relevancy objection was sustained to one of the 

questions. 

The principle case upon which Trevino relies on appeal is Ex parte Lane, 

303 S.W.3d 702 (Tex. Crim. App. 2009). In Lane, a police officer testified about 

what he called an “epidemic” relating to methamphetamine. The Court of Criminal 

Appeals held that it was deficient performance by the defense in failing to object to 

the testimony because such “is not a factor linking applicant with, or bearing on, 

possession of the methamphetamine,” and it was likely to inflame the jury. Id. at 

709. But, the Lane Court recognized the difference in the mere possession offense

and the possession with intent to deliver offense, and it noted that with respect to 
30

the intent to deliver or distribute, testimony regarding the effects of drug 

trafficking would be admissible and the trial counsel was not deficient for failing to 

object to such testimony relating to the “intent to deliver” offense. See id. at 710-

11. In Trevino’s case, he was charged with two counts of possession of a 

controlled substance with intent to deliver and therefore testimony regarding the 

effects of drug trafficking would be admissible and trial counsel would not be 

deficient for failing to object to such testimony as it could have related to the 

“intent to deliver.” We overrule this issue.

Argument Made During Punishment Phase

Trevino also argues that the State made an improper argument at the 

punishment phase of his trial in violation of article 1, section 10 of the Texas 

Constitution because it “called for a response from the defendant who did not 

testify” and it “was a violation of the defendant’s right not to be a witness against 

himself.” And, he contends the error was a fundamental constitutional error. His 

complaint stated in his brief is directed to the following statement made to the trial 

court by the State during the punishment phase of the trial (the defendant elected to 

have the trial court and not the jury decide his punishment). 

STATE’S ATTORNEY: (To Defendant) We do not want you here. We are not

down with what you do, Ramiro.
31

Trevino made no objection to the statement during the trial, and we conclude that

the overall context and content of the statement does not necessarily call for a 

response from the defendant or constitute a violation of the defendant’s right not to 

testify. Accordingly, this issue is overruled.

Shuffling of the Jury Panel

Finally, in his last issue, Trevino claims that the court clerk committed 

reversible error by “shuffling the voir dire panel without a request from either 

party[.]” In support of his argument, he cites to Alexander v. State, 523 S.W.2d 720 

(Tex. Crim. App. 1975). We find the facts in Alexander to be factually 

distinguishable. 

In Alexander, the issue was whether or not the court had a duty to grant the 

defendant’s request for a shuffle. See id. at 721-22. Trevino is not complaining 

about his or the State’s request for a jury shuffle. When a trial court chooses to sua 

sponte order a shuffle, no error exists as long as the trial judge does not deny the 

request by a party for a second shuffle. See Wilkerson v. State, 681 S.W.2d 29, 30-

31 (Tex. Crim. App. 1984). Similarly, we conclude that the same analysis should 

apply when a clerk of court chooses to sua sponte order a shuffle, and no error 

would exist on this record because the court did not deny a request for a second 

shuffle. Additionally, because the right to a jury shuffle does not fall within the 
32

very limited class of rights immunized from a harm analysis by the United States 

Supreme Court, the failure to grant a shuffle is subject to a harm analysis. Cain v. 

State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (only errors that the Supreme 

Court has designated as “structural” are categorically immune from a harmless 

error analysis). On the record before us, we conclude Trevino has failed to 

establish harmful error. We overrule Trevino’s issues and we affirm the judgments

of the trial court below on both counts.

AFFIRMED.

______________________________

 LEANNE JOHNSON

 Justice

Horton, J., concurs without written opinion.

Submitted on August 12, 2014

Opinion Delivered October 22, 2014

Do Not Publish

Before Kreger, Horton, and Johnson, JJ.
IN THE NINTH COURT OF APPEALS _____________________ _____

09-13-00072-CR

09-13-00075-CR

__________________________

_________________________________________________________________ 

On Appeal from the

410th District Court of Montgomery County, Texas

Trial Cause No. 12-06-06351 CR (Count I and II)

_________________________________________________________________ 

JUDGMENT

THE NINTH COURT OF APPEALS, having considered these causes

on appeal, concludes that the judgments of the trial court should be affirmed. 

IT IS THEREFORE ORDERED, in accordance with the Court’s opinion, 

that the judgments of the trial court are affirmed.

Opinion of the Court delivered by Justice Leanne Johnson

October 22, 2014

AFFIRMED

**********

Copies of this judgment and the Court’s opinion are certified for 

observance.

Carol Anne Harley

Clerk of the Court

Ramiro Trevino Jr.

v.

The State of Texas
CHIEF JUSTICE

STEVE MCKEITHEN

JUSTICES

CHARLES KREGER

HOLLIS HORTON

LEANNE JOHNSON

Court of Appeals

State of Texas

Ninth District

CLERK

CAROL ANNE HARLEY

OFFICE

SUITE 330

1001 PEARL ST.

BEAUMONT, TEXAS 77701

409/835-8402 FAX 409/835-8497

WWW.TXCOURTS.GOV/9THCOA.ASPX

William J. Delmore III

Asst. District Attorney

207 W. Phillips, 2nd Floor

Conroe, TX 77301

* DELIVERED VIA E-MAIL *

Larry Warner

3109 Banyan Circle

Harlingen, TX 78550

* DELIVERED VIA E-MAIL *

The Appellant's motion for rehearing in the above styled and numbered

cause was overruled this date.

Sincerely,

CAROL ANNE HARLEY

CLERK OF THE COURT

cc: Kimberly Holzwarth (DELIVERED VIA E-MAIL)

Judge K. Michael Mayes (DELIVERED VIA E-MAIL)

Barbara Adamick (DELIVERED VIA E-MAIL)

Robin Cooksey (DELIVERED VIA E-MAIL)

Sheryl Stapp (DELIVERED VIA E-MAIL)

November 13, 2014

RE: Case Number: 09-13-00072-CR

Trial Court Case

Number:

12-06-06351 CR (Count 1)

Style: Ramiro Trevino Jr.

v.

The State of Texas

FILE COPY
CHIEF JUSTICE

STEVE MCKEITHEN

JUSTICES

CHARLES KREGER

HOLLIS HORTON

LEANNE JOHNSON

Court of Appeals

State of Texas

Ninth District

CLERK

CAROL ANNE HARLEY

OFFICE

SUITE 330

1001 PEARL ST.

BEAUMONT, TEXAS 77701

409/835-8402 FAX 409/835-8497

WWW.TXCOURTS.GOV/9THCOA.ASPX

William J. Delmore III

Asst. District Attorney

207 W. Phillips, 2nd Floor

Conroe, TX 77301

* DELIVERED VIA E-MAIL *

Larry Warner

3109 Banyan Circle

Harlingen, TX 78550

* DELIVERED VIA E-MAIL *

The Appellant's Motion for Rehearing En Banc in the above styled and

numbered cause was overruled this date.

Sincerely,

CAROL ANNE HARLEY

CLERK OF THE COURT

cc: Kimberly Holzwarth (DELIVERED VIA E-MAIL)

Judge K. Michael Mayes (DELIVERED VIA E-MAIL)

Barbara Adamick (DELIVERED VIA E-MAIL)

Robin Cooksey (DELIVERED VIA E-MAIL)

Sheryl Stapp (DELIVERED VIA E-MAIL)

November 13, 2014

RE: Case Number: 09-13-00072-CR

Trial Court Case

Number:

12-06-06351 CR (Count 1)

Style: Ramiro Trevino Jr.

v.

The State of Texas

FILE COPY