                         PD-0588-15
                                                                     June 24, 2015

                            No. 11-15-00076-CR
                _________________________________________

                IN THE CRIMINAL COURT OF APPEALS
           _______________________________________________

                       GILBERT REYES MORELOS
                             PETITIONER,

                                      VS.

                          THE STATE OF TEXAS
                      ____________________________

               PETITION FOR DISCRETIONARY REVIEW
         __________________________________________________

                   Appeal from the District Court
                      of Knox County, Texas
                    50th JUDICIAL DISTRICT
HONORABLE JUANITA PAVLICK, JUDGE PRESIDING BY ASSIGNMENT
              DISTRICT COURT CASE NUMBER 3962
  ___________________________________________________________

                                                   RESPECTFULLY
SUBMITTED:

June 23, 2015
                                                   /s/ Earl Griffin, Jr.
                                                   EARL GRIFFIN, JR.
                                                   SBOT# 08471000
                                                   Attorney for Petitioner
                                                   P.O. Box 730
                                                   Childress, Texas 79201
                                                   (940) 937-6474
                                                   (940) 937-6020 fax
                                                   egriffinattorney@yahoo.com

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                       {Petition For Discretionary Review}
                            CERTIFICATE OF SERVICE

      I hereby certify that the following listed person(s) or entities have rights

which may be adversely affected by the outcome of these appeals in this Court so

that the Justice of this Court may review the same to determine the need for refusal

or disqualification, if necessary, herein:

      1.       The Petitioner, GILBERT REYES MORELOS, TDCJ #01970088,

currently resides at Lindsey State Jail, 1620 FM 3344; Jacksboro, TX 76458, and

may be served with process herein at the address of his Court Appointed Counsel

and he is represented herein by the undersigned counsel whose address is shown on

the front cover of this Petition. The Petitioner was represented at trial herein by

Mr. Lynn Ingalsbe, Esquire, SBOT No. 1039200, 1065 South 3rd Street, Abilene,

Texas 79602-1403.

      2.       The State of Texas is represented herein by its Criminal District

Attorney for Knox County, Texas, Mr. David Hajek, Esquire, and his address is

PO Box 508, Seymour, Texas 76380-0508, and he may be served with process at

his address.




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      3.    The State Prosecuting Attorney is Ms. Lisa C. McMinn and her

address is P. O. Box 12405, Capitol Station, Austin, Texas 78711-2405, and she

may be served with process at this address.


                                               Respectfully submitted by,


                                               EARL GRIFFIN, JR.
                                               Attorney for Petitioner




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                                      TABLE OF CONTENTS
                                        SUBJECT INDEX

SUBJECT:                                                                                        PAGE:

Certificate of Interested Persons . . . . . . . . . . . . .. . . . . . .. . . . . . . . . . . ……..…2-3

Table of Contents . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . ……….....4-5

        Subject Index . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . …..….4

        Index of Authorities . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……......6-7

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .…….......8-9

Statement of Procedural History. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . …...9-11

Summary of the Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……..11

Grounds for Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………….11-13

Reasons for Review……………………………………………………………11-13

        GROUND FOR REVIEW NUMBER ONE . . . . . . . . . . . . . . . . . . . . ..11-12

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

    GROUND FOR REVIEW NUMBER TWO . . . . . . . . . . .. . . . . . . . . ..12-13
    THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
REFUSED TO ALLOW THE PETITIONER TO RE-OPEN AND CALL AN
ADDITIONAL WITNESS PRIOR TO CLOSING ARGUMENT (ENTIRE
RECORD).

Statement Regarding Oral Argument…………………………………….……..13

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Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . …………..14

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….14

Certificate of Compliance………………………………………………………....14

Appendix…………………………………………………………..………….…..15




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                          TABLE OF CONTENTS
                         INDEX OF AUTHORITIES

CASE:                                                             PAGES:


Arriaga v. State, 335 S.W. 3d 331 (Tex. Civ. App.-2010, pet. ref’d)…….….…...12

Dale v. State, 170 S.W. 3d 797 (Tex. Civ. App.-2005, no pet.)…..…….………...12

Ex Parte Franklin, 2007 WL 2403338 (Tex. Crim. App.-2007)..……..……….....12

Ex Parte Mabry, 137 S.W. 3rd 58 (Tex.Crim.App.-2004)………………………...12

Ex Parte Young, 418 S.W.2nd 824 (Tex.Crim.App.-1967)……………..…………12

Hurley v. State, 130 S.W.3rd 501 (Tex.Civ.App.-2004, no pet.…………………...12

Montgomery v. State, 810 S.W. 2d 372, 391-92 (Tex. Crim. App. 1991)………..13

Peek v. State, 106 S.W. 3d 72, 79 (Tex. Crim. App. 2003)………………………13

State v. Manusco, 919 S.W. 2d 86 (Tex. Crim. App.-1996)……………………...12

Sunbury v. State, 88 S.W. 3d 229, 234-235 (Tex. Crim. App. 2002)….………....13




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                   CODES AND STATUTES



Tex. Penal Code § 12.35 (a)…………………………………………………..…..12


Tex. Code Criminal Procedure § 36.02……………………………………...……13




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                               NO. 11-15-00076-CR

GILBERT REYES MORELOS                  }{      IN THE COURT
PETITIONER,                            }{
                                       }{
VS.                                    }{      CRIMINAL APPEALS
                                       }{
THE STATE OF TEXAS                     }{      OF TEXAS

                  PETITON FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS:

      COMES NOW, GILBERT REYES MORELOS, the Petitioner in the

above-styled and numbered causes, by and through his counsel of record on appeal

herein, and submits in and to this Court his Petition for Discretionary Review on

appeal herein complaining of errors of fact and law in the trial court below as

follows:

      For convenience, the Petitioner, GILBERT REYES MORELOS, and THE

STATE OF TEXAS will hereinafter be referred to as the “Petitioner” and the

“State” respectively throughout this Petition hereinafter:

                           STATEMENT OF THE CASE

      On June 18, 2014, in Cause Number 3962, 50th Judicial District Court, Knox

County, Texas Petitioner pled guilty to Intoxication Manslaughter, R.R. Vol. 3, P.

8, L. 25. On July 14, 2014, a contested hearing was had as to punishment herein,


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                          {Petition For Discretionary Review}
R.R. Vol. 4, P. 1. (These hearing were before the Honorable William H. Heatly,

Judge Presiding.) On December 8, 2014, Judge Juanita Pavlick, Judge Presiding by

Assignment, sentenced Petitioner to 10 years in the Institutional Division of TDCJ,

R.R. Vol. 5, P. 12, L. 24-P. 13, L. 12.

      On March 31, 2015, an untimely Notice of Appeal was filed on behalf of

Petitioner and on April 23, 2015, the Eleventh Court of Appeals dismissed the

appeal for want of jurisdiction, SEE MEMORANDUM OPINION attached hereto

as Appendix 1. On May 15, 2015, this Court of Criminal Appeals granted its

EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW

extending Petitioner’s time to file same until June 24, 2015. This Petition For

Discretionary Review is timely filed.

                  STATEMENT OF PROCEDURAL HISTORY

      SEE the foregoing STATEMENT OF THE CASE and Appendix 1 which

are included herein by reference.

      On July 24, 2014, at the contested punishment hearing the State called the

victim’s brother, Sergeant First Class Anthony Carl Oudems who testified that: He

was the brother of the victim killed in the accident, R.R. Vol. 4, P. 17, L. 10-20;

that the sergeant’s six year old daughter had a unique relationship with the victim

and missed her uncle, R.R. Vol 4, P. 20, L. 14-L. 23; that he believed the Petitioner

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                           {Petition For Discretionary Review}
should serve prison time but could not say how much time, R.R. Vol. 4, P. 26, L.

16-19.

      The Petitioner called Cynthia Garcia, the Petitioner’s common law wife to

testify, R.R. Vol. 4, P. 28, L. 23-24. She testified that she and Petitioner had four

children who lived with them, R.R. Vol. 4, P. 29, L. 12-19; that the occurrence in

question was a bad accident, R.R. Vol. 4, P. 36, L. 21-25; that Petitioner hadn’t

consumed alcohol since the accident, R.R. Vol. 4, P. 38, L. 7-17; that Petitioner is

the caregiver for their four children while she is at work and he is remorseful about

the accident, R.R. Vol. 4, P. 43, L. 9-P. 45, L. 1; P. 49, L. 5-20.

      Gilbert Morelos testified, R.R. Vol. 4, P. 52, L. 23: He has no other felony

convictions of any kind, R.R. Vol. 4, P. 53, L. 18-23; he accepts responsibility for

the accident, R.R. Vol. 4, P. 57, L. 15-23; that he has stopped drinking, R.R. Vol.

4, P. 58, L. 7-12; that he now attends AA meetings, R.R. Vol. 4, P. 65, L. 9-14.

      On December 8, 2014, Judge Pavlick, Presiding By Assignment, conducted

sentencing, R.R. Vol. 5. Prior to closing statements Petitioner asked to be allowed

to reopen to put forth an additional witness whose identity he had discovered after

the punishment hearing on July 24, 2014, R.R. Vol. 5, P. 4, L. 25-P. 5, L. 25. The

Trial Court refused Petitioner’s request citing the State’s and Petitioner’s

agreement at the punishment hearing that all evidence was concluded, R.R. Vol. 5,

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                           {Petition For Discretionary Review}
P. 6, L. 13-16. Judge Pavlick sentenced Petitioner to 10 years in TDCJ-ID, R.R.

Vol. 5, P. 12, L. 24-P. 13, L. 12.

                           SUMMARY OF ARGUMENT

      The Trial Court abused its discretion by assessing Petitioner an unreasonable

sentence under the circumstances of this case.

      The Trial Court abused its discretion by refusing to allow Petitioner to

reopen prior to closing arguments at the sentencing hearing and tender his

additional witness’ testimony.

                             GROUNDS FOR REVIEW

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

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

                     GROUND FOR REVIEW NUMBER ONE

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




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                           {Petition For Discretionary Review}
                            REASONS FOR REVIEW

      The part of this Petition entitled “Statement of the Case” and “Statement of

Procedural History” are resubmitted here the same as if set forth herein verbatim.

      The Trial Court abused its discretion when it assessed Petitioner 10 years in

TDCJ-ID under the facts of this case, SEE Ex Parte Young, 418 S.W.2d 824

(Tex.Crim.App.-1967); State v. Manusco, 919 S.W. 2d 86 (Tex.Crim.App.-1996);

Ex Parte Franklin, 2007 WL 2403338 (Tex.Crim.App.-2007). {The writer

acknowledges that the 10 year sentence was within the statutorily prescribed range

of punishment and the line of cases holding therefore it is prima facie reasonable,

Tex. Penal Code § 12.35 (a); Ex Parte Mabry, 137 S.W. 3d 58 (Tex.Crim.App.-

2004); Hurley v. State, 130 S.W. 3d 501 (Tex.Civ.App.-2004, no pet.); Dale v.

State, 170 S.W.3d 797 (Tex.Civ.App.-2005, no pet.} But the facts of this case,

mitigate strongly against the severity of the sentence imposed, Arriaga v. State,

335 S.W. 3d 331 (Tex. Civ. App.-2010, pet. ref’d).

      Petitioner should be granted a new trial herein as to punishment.

                       GROUND FOR REVIEW NUMBER TWO

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


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                               REASONS FOR REVIEW

      The parts of this Petition entitled “Statement of the Case” and “Statement of

Procedural History” are resubmitted here the same as if set forth herein verbatim.

      Under Peek v. State, 106 S.W. 3d 72, 79 (Tex. Crim. App. 2003): “A trial

judge is required to reopen a case under TCCP P. 36.02 if the proffered evidence is

“necessary to a due administration of justice,” which means a judge should reopen

the case if the evidence would materially change the case in the proponent’s favor.

To do otherwise in such a situation is an abuse of discretion, Montgomery v. State,

810 S.W. 2d 372, 391-92 (Tex. Crim. App. 1991).

            Unfortunately in this case there is no proffer of what the testimony

would be, only a proffer of the witness. However, as this was at the punishment

phase “any evidence’ which aids in the proper assessment of punishment should be

admitted, Sunbury v. State, 88 S. W. 3d 229, 234-235 (Tex. Crim. App. 2002).

      Petitioner should be granted a new trial herein as to punishment.


                STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not thought necessary herein.




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                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully

prays that Petitioner be granted a new trial herein as to punishment.

                                               Respectfully submitted by,

                                               /s/ Earl Griffin, Jr.
                                               EARL GRIFFIN, JR.
                                               ATTORNEY FOR APPELLANT
                                               P.O. Box 730
                                               Hall, Texas 79201
                                               (940) 937-6474
                                               (940) 937-6020 Fax
                                               State Bar No. 08471000
                                               egriffinattorney@yahoo.com

                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing
Petitioner’s Petition for Discretionary Review has been mailed CMRRR# 7011
3500 0002 4075 1992 the counsel for the state herein, Mr. David Hajek, 50th
District Attorney, PO Box 508, Seymour, Texas 79602-1403, and CMRRR # 7011
3500 0002 4075 1985 to Ms. Lisa C. McMinn, State Prosecuting Attorney at P.O.
Box 12405, Capital Station, Austin, Texas 78711, on this the 23rd day of June
2015, in accordance with the rules governing same.


                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the above and foregoing Petitioner’s Petition for
Discretionary Review is 1,232 words in its completion, signed on this the 23rd day
of June, 2015, in accordance with the rules governing same.

                                       ATTORNEY FOR PETITIONER


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                           APPENDIX


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




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