                          PD-0355-15
                                                                        March 31, 2015



                                    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

                                           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




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                                                                             TABLE OF CONTENTS

                                                                                                                                                                                Page


Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...                   2

Index of Authorities. .. ..... ... ..... ... ..... ....... ... .. ... .................... ....... ...                                                                          3

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 4

Statement of the Case..... ....................................................................................                                                                 4

Statement of Procedural History .. .... . .... .... .................. ........... ..... ... ... .. 5

Ground for Review .. ....... .. ......... .... .. ... . ... ....... ........ .. ..... .... .. ... .. ... .. . 5

Argument .. .... ... .. ... ... ..... ........... .. ... ............................................................... 5

Prayer.............................................................................. ...................................                                                        10

Certificate of Service..........................................................................................                                                                10

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..   11




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                                                       INDEX OF AUTHORITIES


CASES                                                                                                                         Page


Bishop v. State, 869 S.W. 2d. 342, 345 (Tex. Crim. App. 1993) ... ... . ..                                               8

Douthitt v. State, 931 S. W. 2d 244 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . .                                 6

Joseph v. State, 309 S.W. 3rd 20 (Tex. Crim. App.) .... ... ....... .... .... . .... 6

Montgomery v. State, 810 S.W. S.W. 2d 372 (Tex. Crim. App 1990) ..... . 8-9

Rhode Island v. Innis, 446 U.S. 291 (1980) . .... .... ... .. .. .............. ... .. . 6

Stansberry v. California, 511 U.S. 318, (1994) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 6

United States v. Mendenhall 446 U.S. 544, 544 (1980) . . . . . . . . . . . . . . . . . . . . . 6

U.S. CONSTITUTION & STATUTES

Article 38.22 of the Texas Code of Criminal Procedure .... ...... . .. .. .... . . 5

Texas Rules of Evidence 401 . .. . . ... . . . . . .. . . . . . . . . . . . . . .. .. . . . . .. . ... . . . . . . ...   8

Texas Rules of Evidence 404(b). .. . . . . . . .. . .. . . . . . . . . . . . . . . . .. . . .. . .. . . . . . . . . . . 7-8

Texas Rules of Evidence 403 . .. . . . ........ . .. . . .. . . . .. . . . . . .. . . . .. . . .. . . ... . . . .        8




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                          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 1oth

Court of Appeals by written opinion on March 5, 2015. Hence follows this Petition for

Discoretionary Review.




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                            STATEMENT OF PROCEDURAL HISTORY


       The date of the opinion of the 101h Court of Appeals was March 5, 2015. No motion for

 rehearing was filed.


                                        GROUND FOR REVIEW


     1. 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;
                (1)    in violation ofArticle 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

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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).

          Furthe1more, 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 of 38.22 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


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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" ofAppellant

                        "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
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           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.

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           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] 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 9
                                                 PRAYER

           For the reasons cited in this brief, the Petitioner respectfully prays that this Court grant

 discretionary review.

                                                   Respectfully submitted,

                                                  KEATHLEY & KEATHLEY




                                                     Attorney for ~u en Heredia
                                                     State Bar ci. 00787812




                                  CERTIFICATE OF SERVICE


      I, Steve Keathiey, hereby certify that a true and correct copy of the foregoing
has been delivered to Mr. Lowell Thompson, District Attorney on this
\'l\o..rc..'n 30, l.0\5 .




                                                          STEVEZ                    EY




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                            APPENDIX




Heredia - l'OR. Page: I I
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00014-CR

RUBEN HEREDIA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                             From the County Court
                             Navarro County, Texas
                            Trial Court No. C34853-CR


                                       ORDER


       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). His appeal was abated so that the trial court could prepare findings of fact

and conclusions of law regarding whether Heredia' s statements were voluntary and

specifically whether Heredia made a knowing, intelligent, and voluntary waiver of the

rights set out in Article 22 of the Texas Code of Criminal Procedure.
        The trial court's findings of fact and conclusions of law have been filed.

Accordingly, this appeal is reinstated.

                                           PERCURIAM

Before Chief Justice Gray,
      Justice Davis, and
      Justice Scoggins
Appeal reinstated
Order issued and filed February 12, 2015




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