Frank Serrata AKA Francisco Serrata v. State

Opinion

ACCEPTED 13-15-00200-cr FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/6/2015 11:14:44 AM CORPUS CHRISTI Dorian E. Ramirez CLERK 11/06/15 13-15-"00200-CR DORIAN E. RAMIREZ, CLERK BY cholloway IN THE COURT OF APPEALS RECEIVED IN 13th COURT OF APPEALS FOR THE 13TH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS 11/6/2015 11:14:44 AM AT CORPUS CHRISTI, TEXASDORIAN E. RAMIREZ Clerk

FRANK SERRATA A/K/A FRANCISCO SERRATA APPELLANT

vs.

THE STATE OF TEXAS, APPELLEE

ON APPEAL FROM THE 117th JUDICIAL DISTRICT COURT OF THE NUECES COUNTY, TEXAS TRIAL COURT CASE NUMBER 14-CR-1205-B

AMENDED APPELLANT(S BRIEF

Fred Jimenez Law Offices of Fred Jimenez 509 Lawrence, Suite 301 Corpus Christi, TX 78401 Tel. 361-888-7744 Fax. 361-888-6018 State Bar Number 10667300 13-15-00200-CR

IN THE COURT OF APPEALS

FOR THE 13THJUDICIALDISTRICT

AT CORPUS CHRISTI) TEXAS

FRANK SERRATA AJK/A FRANCISCO SERRATA APPELLANT

ON APPEAL FROM THE 117th JUDICIAL DISTRICT COURT OF 1HE NUBCES COUNJ'Y; TEXAS . TRIAL COURT CASE NUMBER 14-CR-1205-B

APPELLANT'S BRIEF

Fred Jimenez Law Offices of Fred Jimenez 509 Lawrence, Suite 301 Corpus Christi, TX 78401 Tel. 361-888-7744 Fax. 361-888~6018 State Bar Number 1066

____________________________ --.....---·- .......................... NOTICE OF PARTIES

The following parties have an interest in this case and their names are provided

to this court so that the members of thjs Court may appropriately exercise their

judgment in seeking to recuse themselves in the event of a conflict of interest.

Parties:

The State ofTexas Appellee

Frank Serrata, Defendant/Appellant

Attorneys for the Parties:

Fred Jimenez 509 Lawrence, Suite 301 Corpus Christi, TX 78401 Tel. 36 I -888-7744

Hon. Emiliano "Milo" Fragoso Assistant District Attorney 901 Leopar~ room 206 Corpus Christi TX 78401 TeL361-888-0410

3 TABLE OF CO TE TS

Page

otice of Parties ...................................................................................... 3

Table of Contents ..............................................................................4

Table of Authorities ................................ ....... . .... . . ......... ..........................5

Preliminary Statement............................................................................... 6

Statement of the Facts .............. ........................... .................................... 7

Issue 1 Presented ............................ ................................................ ...... 8

Summary of the Argument ..... .... .............. ......... . ....................................... 9

Argument and Authorities ............................... ........................................9

ISSUE 1: WHETHER THE T.RIA.t- COURT ERRED IN DENYING THE DEFENDANT'S OBJECTIO TO EVIDE CE BECAU E IT WAS IN VIOLATIO OF THE FOURTH AMENDMENT.

Issue 2 Presented ...................... ............................................................................... 10

Summary of the Argument. ..... ...................... ........................................................... 10

Argument and Authorities ....................................................................................... 10

I SUE 2: WHETHER THE TRIAL COURT ERRED IN DE YING THE REQUESTED JURY INSTRUCTIO PURS ANT TO ARTICLE 38.23(a) OF THE CODE OF CRIMINAL PROCEDURE.

Prayer for Relief.................... ......................·..................... : ....... ...... . ....... 11

Certificate of Servic ..... ...... ........ ...... ........................................................ 12

4 TABLE OF AUTHORITIES

Constitution

U.S. Const. Amend. IV.................................................................................. 9

Federal

WhiteleyV. Warden, 401 U .. 560,566 (1971) .................................... 9

tate

Atkinson v. State, 923 S.W.2d 21,23 (Tex.Crim.App. 1996 ...................... .11

Brown v. State, 481 S.W.2d 106, 110 (Tex.Crim.App. 1972)......................... 9

Eisenhauer v. State, 754 S.W.2d 159, 164 (I:ex.Crim.App. 1988).................... 9

Howard v. State, 599 S.W.2d 597,604-05 {Tex.Crim.App.1979) ................ 10

Russel1 v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986) ............................. 9

Texas Codes and Statutes

Tex. Code Crim. Proc. Ann. art. 38.23(a) ...................................................... .10

5 TO THE HO ORABLE JUDGES OF SAID COURT:

Comes now, Frank Serrata hereinafter referred to as Appellant, who submits

this brief, pursuant to the provisions of the Texas Rules of Appellate Procedure, in

support of this request for a new trial and other remedies in Cause No. 14-CR-1205-

B. PRELIMINARY STATEMENT

In the instant case, the State charged Appellant in a one count indictment of

possession of a controlled substance (cocaine) penalty group 1/less than 1 gram, a

state jail felony punishable as a second-degree felony. CR, p. 5. The indictment

specifically alleged that on April 5, 2014, in ueces County, Texas, the defendant

intentionally, or knowingly possess controlled substance namely, cocaine, in an

amount of less than 1 gram. CR, p.5. The indictment further alleged that the

defendant had previously been convicted of unauthorized use of a motor vehicle on

January 28 1991 in the in the 347th District Court of ueces County, Texas, and of

burglary of a habitation on May 25, 2006 in the 36th District Court of San Patricio

County, Texas. CR, p.5, 6. Appellant was convicted by a jury. CR, p. 53. On March

17, 2015, the Court assessed punishment at 7 years in the Institutional Division of

the Texas Department of Criminal Justice. CR, p. 53. The defendant filed his otice

of Appeal on April 13, 2015. CR, p. 57. Appellant appeals his conviction and

sentence.

6 STATEMENT OF THE FACTS

This case involves a traffic stop by a Robstown police officer and a subsequent

discovery of small amounts of cocaine. Officer John Garcia testified that he was a

police officer for the Robstown Police Department R, VS, p. 5. He was on duty the

night of AprilS 2014, working the graveyard shift. He testified he noticed a vehicle

traveling at a high rate of speed. His radar was on at the time. The radar indicated

that the vehicle was traveling at 70 mph in a 55 mph speed zone. R, VS, p. 7. He

initiated a routine traffic stop for speeding. R, V5 p. 8.

Also Garcia testified that after preliminary contact with appellant. He asked

him for his insurance. R, V5 p. 14. Officer Garcia testifies that appellant leans

forward he bas his left hand down, recession reaching for the insurance and he

notices that he's going to start making a movement. He leans forward to seeing what

appellant is going to do and he observes a yeJJow baggy on the floor with a white

substance in it. R, VS p. 14. Officer Garcia as appellant to step out of the car and

places in custody. R, VS, p. 15. He then searches the vehicle and locates the cocaine.

R, vs, p. 15.

Appellant is ultimately arrested and transported to booking. At the booking

area, everything is removed from his pockets and another small back of cocaine is

found inside his pocket. R, V5 p. 22.

7 .. At the trial~ counsel for appellant objects to the introduction of this evidence

because it is in violation of the fourth amendment. R, V5, p. 8. The court announces

that it would carry the request with regards to the suppression ... As she hears the

evidence as well. R, V5, p. 8. At the close of the evidence, the court announces " ...

Based on the evidence it was brought to trial by testimony and also by video, I am

denying the motion to suppress search." R, V5, p. 70. After the denial of the

objection, counsel requests an instruction pursuant to Article 38.23 Code of Criminal

Procedure, which would allow the jury to consider the legality of the evidence. R,

VS, p. 70. Counsel for appellant requested a charge that tracked the language of

Article 38.23. R, VS, p. 77. The court denied the use requested instruction. R, V5, p.

87.

ISSUE 1 PRESENTED

WHETHER THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT'S OBJECTION TO EVIDENCE BECAUSE IT WAS IN

VIOLATION OF THE FOURTH AMENDMENT.

SUMMARY OF THE ARGUM'E NT

The trial court erred in failing to suppress the drug evidence because it was

obtained without probable cause to conduct a warrantless ·search and thus, in

8 ARGUMENTANDAUTHORITffiS Appellant asserts that the officer had no probable cause.to search his vehicle

and that he did so capriciously. On cross-examination, the officer admitted that it

was dark and that the baggy in question was very small. R V5 p. 29, 30. He admitted

that in his report, he merely stated that he saw appellant put 'something' under the

seat and that his testimony in court was that he saw a baggy. R, V5 p. 26. The officer

admitted that he did not have a warrant, and that he did not have consent to search

the vehicle. R, V5, p. 28.

Once the defendant establishes that a police search was not supported by a

warrant the burden shifts to the State to prove the reasonableness of the search.

Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986). At the trial, the State

contended that the officer had probable cause to search the vehicle. Probable cause

determinations in warrantless search situations are made using the same standards

as searches involving warrants. Whiteley V. Warden 401 U.S. 560, 566 (1971). To

determine a probable cause existed, one would go to the totality of the circumstances.

Eisenhauer v. State, 754 S.W.2d 159 164 (Tex.Crim.App. 1988). An officer's

inarticulate hunch or suspicion is not sufficient to constitute probable cause. Brown

v. State, 481 S.W.2d 106, 110 Tex.Crim.App. 1972). The court of criminal appeals

has repeatedly held that a 'furtive gesture" made by a person is stopped for a traffic

9 offense does not establish probable cause for search. Howard v. State, 599 S. W.2d

597, 604- 05 {Tex.Crim.App. 1979).

In conclusion, the totality of the cir~umstances presented at the trial did not

demonstrate that the officer had probable cause to believe appellant's vehicle

contained evidence of a crime.

ISSUE 2 PRESENTED

REQUESTED JURY INSTRUCTION PURSUANT TO ARTICLE

. 38.23(a) OF THE COURT OF CRIMINAL PROCE'DU:RE.

SUMMARY OF THE ARGUMENT

The trial court erred in failing to give the jury instruction pursuant to

article 38.23(a}.

ARGUMENT AND AUTHORITIES

In pertinent part, article 38.23(a) in any case where the legal evidence

raises an issue hereunder, the jury shall be instructed that if it believes, or has

reasonable doubt, that the evidence was obtained in violation of the provisions of

this article, then and in such event, the jury shall disregard any such evidence so

obtained. If a fact issue is raised before the jury as to whether evidence is obtained

10 in violation of the Constitution or law, the defendant is entitled under article 38.23 a)

to have the jury instructed that if they beHeved, or have a reasonable doubt, that the

evidence was illegally obtained, then they shall disregard. Atkinson v. State, 923

S.W.2d 21, 23 (Tex.Crim.App. 1996). At the trial, appellant asserted that there was

no proba,ble cause to search the vehicle, therefore, a fact issue was raised. Appellant

was entitled to an instruction under article 38.23(a).

PRAYE~

WHEREFORE, for these reasons, of Appellant respectfully request the Court

to set aside the conviction in cause number 14-CR-1205-B and remand this cause

back to the trial court with instructions to set aside the conviction and enter a

judgment of acquittal or remand for new trial.

Respectfully submitted, Law Offices of Fred Jimenez 509 Lawrence Suite 301 Corpus Christi, TX 784Ql Tel. 361-888-7744 Fax 36 888-601

By:~~-~~--~~~~~~ Fred Jimenez State Bar No. 106 Attorney for Appellant

11 CERTIFICATE OF SERVICE

This is to certifY that on October26, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney Office of Nueces

County, Nueces County Courthouse, 901 Leopard, Corpus Christi, Texas 78401 by

hand delivery. A copy of this brief was mailed to Mr. Frank Serrata, Robertson,

12071 FM 3522; Abilene, TX 79601.

12 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Tex. R. App. P.

9 .4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

1,791 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(l).

Fred Jimenez