Trevino, Ramiro Jr. ( 2014 )

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
In the Court of Criminal Appeals of Texas ABEL ACOSTA
CLERK
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
December 30, 2014 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 1 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 ii 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 iii 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 iv 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 v 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
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) . . . . . . . . . . . . . . . . . . . . . . 17
Page vi 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 vii 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 viii 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 1 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 2 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.
Page 3 of 25
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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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:”
Page 25 of 25
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
1
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.
2
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,
3
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.”
4
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
5
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
6
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.
7
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).
8
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
9
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
10
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,
11
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
12
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. AP-
76100, 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
13
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.
14
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.
15
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
16
(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).
17
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
18
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.
19
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
20
(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.
21
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.)
22
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
23
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
24
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.
25
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.
26
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?
27
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
28
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
29
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.
30
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
31
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.
32
IN THE NINTH COURT OF APPEALS
_____________________ _____
09-13-00072-CR
09-13-00075-CR
__________________________
Ramiro Trevino Jr.
v.
The State of Texas
_________________________________________________________________
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
FILE COPY
CHIEF JUSTICE
STEVE MCKEITHEN Court of Appeals CLERK
CAROL ANNE HARLEY
JUSTICES
CHARLES KREGER
State of Texas OFFICE
SUITE 330
HOLLIS HORTON
LEANNE JOHNSON
Ninth District 1001 PEARL ST.
BEAUMONT, TEXAS 77701
409/835-8402 FAX 409/835-8497
WWW.TXCOURTS.GOV/9THCOA.ASPX
November 13, 2014
William J. Delmore III Larry Warner
Asst. District Attorney 3109 Banyan Circle
207 W. Phillips, 2nd Floor Harlingen, TX 78550
Conroe, TX 77301 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
RE: Case Number: 09-13-00072-CR
Trial Court Case 12-06-06351 CR (Count 1)
Number:
Style: Ramiro Trevino Jr.
v.
The State of Texas
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)
FILE COPY
CHIEF JUSTICE
STEVE MCKEITHEN Court of Appeals CLERK
CAROL ANNE HARLEY
JUSTICES
CHARLES KREGER
State of Texas OFFICE
SUITE 330
HOLLIS HORTON
LEANNE JOHNSON
Ninth District 1001 PEARL ST.
BEAUMONT, TEXAS 77701
409/835-8402 FAX 409/835-8497
WWW.TXCOURTS.GOV/9THCOA.ASPX
November 13, 2014
William J. Delmore III Larry Warner
Asst. District Attorney 3109 Banyan Circle
207 W. Phillips, 2nd Floor Harlingen, TX 78550
Conroe, TX 77301 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
RE: Case Number: 09-13-00072-CR
Trial Court Case 12-06-06351 CR (Count 1)
Number:
Style: Ramiro Trevino Jr.
v.
The State of Texas
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)