Mark Anthony Serrano v. State

ACCEPTED
03-14-00516-CR
6639364
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/25/2015 11:56:06 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00516-CR
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
8/25/2015 11:56:06 AM
COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
MARK ANTHONY SERRANO,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________
From the 391ST Judicial District Court
Tom Green County, Texas
Honorable Barbara Walther, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
ORAL ARGUMENT REQUESTED ONLY
IF REQUESTED BY THE COURT
JOHN BEST
Assistant District Attorney
51st Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
Texas State Bar # 00796203
ATTORNEY FOR STATE
TABLE OF CONTENTS
PAGE
LIST OF AUTHORITIES ............................................................................. 2
STATEMENT OF FACTS ........................................................................... 5
SUMMARY OF THE ARGUMENT .............................................................. 9
ARGUMENT AND AUTHORITIES ............................................................ 12
CONCLUSION .......................................................................................... 29
PRAYER ................................................................................................... 32
CERTIFICATE OF COMPLIANCE ............................................................ 33
CERTIFICATE OF SERVICE .................................................................... 33
LIST OF AUTHORITIES
Cases
Alvarado v. State, 912 S.W.2d 199 (Tex. Crim. App. 1995) ..........................12
Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ............................13
Barefield v. State, 784 S.W.2d 38 (Tex. Crim. App. 1989).............................13
Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011) .............................20
Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) ...............................16
Colorado v. Connelly, 479 U.S. 157, 169 (1986) .............................................12
Davis v. United States, 512 U.S. 452 (1994) ............................................. 28, 29
Dickerson v. United States, 530 U.S. 428 (2000) ............................................12
Edwards v. Arizona, 451 U.S. 477 (1981) .........................................................28
Ex Parte Branch, 553 S.W.2d 380 (Tex. Crim. App. 1977) ............................23
Ex Parte Gonzalez, 383 S.W.3d 162 (Tex. App.—San Antonio 2012, pet.
ref’d) .....................................................................................................................23
Ex Parte Plumb, 595 S.W.2d 544 (Tex. Crim. App. 1980) .............................23
Ex Parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981) .............................23
Ex Parte Stansbery, 702 S.W.2d 643 (Tex. Crim. App. 1986) ......................16
Ex Parte Thompson, 508 S.W.2d 624 (Tex. Crim. App. 1974) .....................23
Flores v. State, 299 S.W.3d 843 (Tex. Crim. App. 2009) ...............................19
Hester v. State, 544 S.W.2d 129 (Tex. Crim. App. 1976) ..............................16
Hughen v. State, 297 S.W.3d 330 (Tex. Crim. App. 2009) ............................19
McNeil v. Wisconsin, 501 U.S. 171 (1991) ................................................ 27, 28
2
Michigan v. Jackson, 475 U.S. 625 (1986) .......................................................17
Michigan v. Mosley, 423 U.S. 96 (1975) ...........................................................28
Miranda v. Arizona, 384 U.S. 436 (1966) ................................................... 27, 28
Montejo v. Louisiana, 556 U.S. 778 (2009) ......................................... 17, 18, 19
Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) ..............................20
Nonn v. State, 117 S.W.3d 874 (Tex. Crim. App. 2003).................................20
Patterson v. Illinois, 487 U.S. 285 (1988)..........................................................27
Pecina v. State, 361 S.W.3d 68 (Tex. Crim. App. 2012) ................................19
Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000) .....................................15
State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) ...................................13
Codes
Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015)................................. 22, 23
Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005)........................................11
Constitutional Provisions
Tex. Const. Art. I, § 11a, subsection (a)(1) .......................................................25
3
NO. 03-14-00516-CR
IN THE
COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
MARK ANTHONY SERRANO,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________
From the 391ST Judicial District Court
Tom Green County, Texas
Honorable Barbara Walther, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
TO THE HONORABLE COURT OF APPEALS FOR THE THIRD
SUPREME JUDICIAL DISTRICT OF TEXAS:
COMES NOW, The State of Texas, in the above entitled and
numbered cause, and files this the BRIEF OF STATE and in support
thereof, the State would show this Honorable Court as follows:
4
STATEMENT OF FACTS
Between November 11, 2013, and November 14, 2013,
approximately $30,000 worth of furniture was reported stolen from Trend
Furniture’s warehouse in Tom Green County, Texas. (RR. Vol. 5, pp. 105-
06, 141). On November 19, 2013, the Tom Green County Sheriff’s Office,
which handled the investigation, received a tip from a confidential informant
(CI) who had seen some of the stolen property at Appellant’s house located
at 1411 South Irving. (RR. Vol. 3, pp. 160, 173). The CI advised Sheriff’s
Office detectives (“detectives”) that additional stolen furniture was located
at Appellant’s mother’s house. (CR. p. 6; RR. Vol. 3, p. 177). Based upon
this information, detectives conducted surveillance on Appellant’s house,
where they observed thick, plastic, packing material consistent with the
materials used by Trend Furniture to pack furniture in their warehouse.
(RR. Vol. 3, pp.161–63, 177-79). On November 20, 2013, based on the
evidence observed at Appellant’s house, detectives applied for and were
granted a search warrant to search for the stolen furniture in Appellant’s
home. (RR. Vol. 3, pp. 163–64).
Appellant was home when detectives executed the search warrant.
(RR. Vol. 3, pp. 165–66). During execution of the warrant, detectives
located and identified numerous items of stolen furniture belonging to
5
Trend Furniture. (RR. Vol. 3, p. 66; Vol. 5, pp. 23-27). While one team of
detectives searched Appellant’s home, another team proceeded to the
house of Appellant’s mother, located at 315 North Milton. (RR. Vol. 5, p.
39). Detectives located additional stolen property belonging to Trend
Furniture at the North Milton location. (RR. Vol. 5, p. 39). Appellant was
arrested that evening at his home without a warrant. (RR. Vol. 3, p. 200;
RR. Vol. 5, pp. 23, 62). Over the next few weeks, detectives searched
several other locations and recovered numerous additional items of
furniture associated with the Trend Furniture burglary. (RR. Vol. 5, pp. 41–
54).
On November 23, 2013, Appellant was arraigned before a magistrate
and requested that an attorney be appointed to represent him. (CR. p. 8;
RR. Vol. 3, p. 200). Appellant requested a court-appointed attorney and
the magistrate appointed Shawntell McKillop to represent Appellant. (CR.
p. 9; RR. Vol. 3, pp. 201-02). On November 25, 2013, a complaint was
filed by Sheriff’s Office Detective Ray Mellas. (CR. pp. 6-7).
On November 26, 2013, Appellant was taken from the Tom Green
County Jail to the Sheriff’s Office for questioning regarding the case. (RR.
Vol. 3, p. 202). Prior to any questioning, Detective Martha Ibarra advised
Appellant of his Miranda warnings. (SE. 87, t—1:03). Appellant stated that
6
he understood his rights and affirmatively waived those rights both orally
and in writing. (SE. 87, t—1:03-1:04; RR. Vol. 3, pp. 192-94).
After receiving his first set of warnings, Appellant minimized his
involvement in the case by telling Detective Ibarra that he had only
purchased the property from an individual named “Aaron”, whose last name
Appellant did not know (SE. 87, t—1:20, 1:31), for $1,000 (SE. 87, t—1:35),
knowing the property was stolen. (SE. 87, t—1:32; RR. Vol. 3, pp. 192-94).
At one point, when Appellant expressed his discontent with his $200,000
bond, Detective Ibarra explained to Appellant that there must be more to
the story to justify the bond. (SE. 87, t—1:29). Appellant noted that he
could make the bond. (SE. 87, t—1:33). Appellant repeatedly expressed
concern that cooperating and giving a statement might result in an
organized crime charge given the involvement of multiple co-defendants.
(SE. 87, t—1:32).
As detectives continued to question Appellant, Detective Bloom
informed Appellant that Appellant was not being cooperative and that
Appellant’s level of cooperation with the investigation would be conveyed to
the prosecuting attorney. (SE. 87, t—1:40-1:41). When Appellant asked
Detective Bloom whether cooperating would get him out of trouble,
Detective Bloom explained to Appellant that cooperation would not get
7
Appellant completely out of trouble. (SE. 87, t—1:41). Appellant
subsequently asked whether cooperation would result in his bond being
reduced. (SE. 87, t—1:42). Detective Bloom told Appellant that his level of
cooperation would be conveyed to the prosecutor. (SE. 87, t—1:42).
Detective Mellas told Appellant, “I can’t say ‘yes’ or ‘no’.” (SE. 87, t—1:42).
At one point during the course of questioning Appellant, Detective
Billy Bloom asked Appellant if Appellant had an attorney. (SE. 87, t—1:42-
1:43). Appellant responded that Appellant did not have an attorney (SE. 87,
t—1:43). When Detective Ibarra explained to Appellant that his untruthful
statements up until that point showed a lack of cooperation, Appellant
requested that the questioning “start all over.” (SE. 87, t—1:43). Detective
Bloom removed Appellant’s handcuff’s and asked Appellant to start telling
the truth. (SE. 87, t—1:43-1:44). Detective Ibarra Mirandized Appellant a
second time, and Appellant again waived his rights both orally and in
writing. (SE. 87, t—1:44). Appellant subsequently confessed to stealing
furniture from the Trend Furniture warehouse and acknowledged that the
furniture seized during the search of his house, and the furniture seized
from his mother’s house, had also been stolen from Trend Furniture. (SE.
87, t—1:45-2:13). Appellant also acknowledged the involvement of multiple
co-defendants in the thefts. (SE. 87, t—1:45-2:13).
8
At trial, Appellant made an oral motion to suppress Appellant’s
statement to detectives based on a claim that the statement was not
voluntary and was obtained in violation of Appellant’s right to counsel under
the 6th Amendment. (RR. Vol. 3, pp. 169-70). The trial court denied
Appellant’s motion to suppress. (RR. Vol. 3, p. 212). Regarding this issue,
the trial court found that Appellant had voluntarily, knowingly and
intelligently waived his rights, and that Appellant’s statement was
admissible. (RR. Vol. 3, p. 212). The trial court noted that Appellant was
twice advised of his rights prior to giving his statement, twice signed a card
indicating that he understood his rights, and never requested an attorney
during questioning. (RR. Vol. 3, p. 212).
Appellant’s statement was admitted at trial. (RR. Vol. 3, p. 196). After
all evidence was presented, the jury found Appellant guilty of theft as
alleged in the indictment (RR. Vol. 6, p. 129) and ultimately sentenced
Appellant to twenty-five years confinement in the Institutional Division of the
Texas Department of Criminal Justice. (RR. Vol. 6, pp. 166-67).
SUMMARY OF THE ARGUMENT
The trial court did not err in denying Appellant’s motion to suppress
the statement made by Appellant’s to detectives. Based upon the totality of
9
the circumstances, the procedural violations of the magistrate in failing to
magistrate Appellant, and appoint an attorney, within the prescribed
timeframes, did not amount to official, coercive conduct of such a nature as
to render Appellant’s statement unlikely to have been the product of an
essentially free and unconstrained choice. The record does not support
Appellant’s assertion that violations of Article 15.17, 17.033 or 17.15 of the
Texas Code of Criminal Procedure, or Sections 10 or 13 of the Texas
Constitution, acted to create an “improper compelling environment for
interrogation” that rendered Appellant’s statement to detectives involuntary.
The Court of Criminal Appeals has refused to accept the notion that a
delay or failure to be taken before a magistrate is sufficient cause, in and of
itself, to suppress an otherwise voluntary statement. Appellant must show
a causal connection between his confession and any delay in being taken
before the magistrate, and being appointed of counsel, under Article 15.17
of the Texas Code of Criminal Procedure.
At the time Appellant provided his statement to detectives, he was
lawfully under arrest pursuant to the filing of a complaint supported by
probable cause. Prior to giving his statement, Appellant was twice read his
Miranda warnings by detectives. On both occasions during the same
interview, Appellant orally, and in writing, freely and voluntarily agreed to
10
waive those rights and provide a statement. There is no evidence that
Appellant was coerced or threatened into giving his statement. At no time
did Appellant make an expression of need or desire to be assisted by
counsel. Appellant has not met his burden of showing a causal connection
between the procedural errors and the voluntariness of his statement.
Appellant also fails to establish that the magistrate set Appellant’s
bond at an amount intended to coerce Appellant into giving a statement.
The information provided in the probable cause portion of the complaint
filed by Detective Mellas, and relied upon by the magistrate in exercising
her broad discretion in setting Appellant’s bond, indicates the nature and
circumstances of the offense alone justified the bond amount. Despite
Appellant’s assertions to the contrary, nothing in the record supports the
claim that the magistrate used, or intended to use, the bond amount as an
instrument of oppression. Furthermore, the record does not support
Appellant’s assertion that the amount of the bond influenced the
voluntariness of Appellant’s statement.
Therefore, this Court should affirm the trial court’s decision not to
suppress Appellant’s confession on the grounds that it was freely and
voluntarily given.
11
ARGUMENT AND AUTHORITIES
In determining whether to suppress Appellant’s statement, the trial
court was required to determine whether Appellant’s statement was given
voluntarily or was coerced. See Tex. Code Crim. Proc. Ann. art. 38.21
(West 2005) (stating that “[a] statement of an accused may be used as
evidence against him if it appears that the statement was freely and
voluntarily made without compulsion or persuasion”). A statement is
involuntary for due process purposes only if there was official, coercive
conduct of such a nature that any statement obtained thereby was unlikely
to have been the product of an essentially free and unconstrained choice.
Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). “Absent
[coercive] police conduct causally related to the confession, there is simply
no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” Id. (quoting Colorado v. Connelly, 479
U.S. 157, 169 (1986)). The essential question the trial court was required to
determine was “whether [appellant’s] will was overborne by the
circumstances surrounding the giving of [the] confession.” See Dickerson
v. United States, 530 U.S. 428, 434 (2000). In making this determination,
the trial court was required to examine the totality of the circumstances
12
surrounding it. See Barefield v. State, 784 S.W.2d 38, 40-41 (Tex. Crim.
App. 1989).
In considering whether the trial court abused its discretion in declining
to suppress Appellant’s statement, this Court should give “almost total
deference to a trial court’s determination of the historical facts” and review
the court’s application of the law to the facts de novo. See Balentine v.
State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Where the trial court
has not made explicit findings of historical fact, as in this case, this Court
should review the evidence in the light most favorable to the trial court’s
ruling and assume that the trial court made implicit findings of fact that
support the ruling. Id. Furthermore, the ruling of the trial court should be
sustained if it is correct under any theory of law applicable to the facts of
the case. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App.
2000).
I. Appellant’s statement was not the result of official, coercive
conduct on the part of detectives that would make Appellant’s
statement unlikely to have been the product of an essentially free
and unconstrained choice.
The record contains no evidence that detectives engaged in “official,
coercive conduct of such a nature” that Appellant’s statement was “unlikely
13
to have been the product of an essentially free and unconstrained choice.”
Before initially questioning Appellant, detectives provided Miranda warnings
to Appellant. (SE. 87, t—00:45-1:25). After receiving his first set of
warnings, Appellant minimized his involvement to detectives. (SE. 87, t—
1:20-2:17). When detectives explained that they already had evidence of
Appellant’s more substantial role in the thefts, and that Appellant was not
helping himself by continuing not to cooperate, Appellant inquired as to
whether his cooperation would result in a lower bond. (SE. 87, t—40:23).
Detective Bloom made no promises with regard to the lowering of
Appellant’s bond, but did explain that Appellant’s level of cooperation would
be conveyed to the prosecutor. (SE. 87, t—40:23). Detective Mellas told
Appellant that Mellas couldn’t say “yes” or “no” as to whether cooperation
would result in a lower bond for Appellant. (SE. 87, t—40:30). Appellant
subsequently requested that the questioning “start all over,” at which time
detectives Mirandized Appellant a second time, and Appellant again waived
his rights and confessed. (SE. 87, t—41:50).
The video of Appellant’s confession reveals that while he was being
questioned, Appellant was not subjected to any type of coercive law
enforcement conduct that made his statement involuntary. Before
Appellant gave his second Mirandized statement, his handcuffs were
14
removed. Appellant was not deprived of food, beverage, or the opportunity
to visit the restroom. Although Appellant was upset about the fact that he
was in custody, Appellant appeared to be calm during the interviews and,
although initially untruthful, was cooperative. Appellant never asked to
speak with an attorney or to terminate the interview, even though he was
informed of his right to do so on two occasions. There is no indication that
any detective threatened Appellant or otherwise acted inappropriately.
II. No causal connection exists between the failure to take Appellant
before a magistrate within the prescribed timeframe pursuant to
Article 15.17 and Appellant’s waiver of his rights and subsequent
confession.
Appellant contends his statement to detectives should be suppressed
based upon the delay between the time Appellant was arrested and the
time Appellant was appointed counsel. (Brief of Appellant at 17-18).
Appellant asserts that without this delay, “it is reasonable to assume” that
counsel would have been appointed, that counsel would “likely” have
visited with Appellant, and Appellant would not have confessed. (Brief of
Appellant at 18).
The Court of Criminal Appeals has consistently held that a violation of
Article 15.17 does not automatically invalidate a confession. See Rocha v.
15
State, 16 S.W.3d 1, 29-30 (Tex. Crim. App. 2000); Cantu v. State, 842
S.W.2d 667, 680 (Tex. Crim. App. 1992). Appellant bears the burden of
proof to show a causal connection between his confession and the failure
to take Appellant promptly before a magistrate. See Ex Parte Stansbery,
702 S.W.2d 643, 647 (Tex. Crim. App. 1986). The burden of proof to show
this causal connection has even been extended to situations in which a
defendant provided a statement before ever being taken before a
magistrate by an arresting officer. See Hester v. State, 544 S.W.2d 129,
134-135 (Tex. Crim. App. 1976). In both Stansbery and Hester, the Court
upheld the validity of the statements in question due to the lack of a causal
connection between the voluntary statements and the alleged procedural
errors. See Ex Parte Stansbery, 702 S.W.2d at 647–649, Hester, 544
S.W.2d at 134-135.
In the present case, Appellant has made no showing that the delay in
being taken before the magistrate was causally connected to Appellant’s
voluntary statement. When Appellant appeared before the magistrate on
November 23, 2013, he was advised of his rights pursuant to Article 15.17.
(CR. at 8). Three days later, Appellant provided detectives with a voluntary
statement only after detectives twice advised Appellant of his constitution
rights under Miranda. (RR. Vol. 3, p. 202; Vol. 5, pp. 190-94).
16
Appellant offers no evidence that the delay in his magistration had any
effect on Appellant’s decision to waive his rights and provide a statement.
Instead, Appellant only asserts the conclusion that the delays created a
coercive environment, which, coupled with the bond set by the magistrate,
made Appellant’s statement involuntary. (Brief of Appellant at 22-31).
Appellant asserts that, had the magistrate appointed an attorney prior to
Appellant confessing on November 26, 2013, Appellant’s counsel “would
likely have visited with Appellant prior to his confession . . . and Appellant
would not have made the confession.” (Brief of Appellant at 18). However,
by the time Appellant gave his statement on November 26, 2013, he had
been advised of his right to counsel at least twice prior to giving his
statement. Given these circumstances, the trial court cannot be said to
have abused its discretion in refusing to suppress Appellant’s statement.
III. Neither Appellant’s request for counsel, nor his actual
appointment of counsel, rendered his statement invalid.
According to the United States Supreme Court, a defendant may
knowingly and voluntarily waive his or her Sixth Amendment right to
counsel even after arraignment and request for counsel. Montejo v.
Louisiana, 556 U.S. 778, 792 (2009). In Montejo, the Court overruled its
previous holding in Michigan v. Jackson, 475 U.S. 625 (1986), in which it
17
held that a presumption exists that a defendant who had been arraigned or
appointed counsel could not voluntarily waive his right to counsel during
custodial interrogation. Id. at 789–793. According to the Court in Montejo,
a defendant’s decision to waive his right to counsel does not itself need to
be counseled. Id. at 786. The Court held that “it would be completely
unjustified to presume that a defendant’s consent to police-initiated
interrogation was involuntary or coerced simply because [the defendant]
had previously been appointed a lawyer.” Id. at 792. The Court went on to
state, “[a]nd when a defendant is read his Miranda rights (which include the
right to have counsel present during interrogation) and agrees to waive
those rights, that typically does the trick . . . .” Id. at 786. The Court further
stated that after the right to counsel attaches, “a defendant who does not
want to speak to the police without counsel present need only say as much
when he is first approached and given the Miranda warnings.” Id. at 794.
The Court noted that the immediate contact must end at that point, along
with any subsequent “badgering” through additional requests for
questioning. Id. at 794-95.
In the present case, whether or not Appellant had been appointed
counsel, or whether Appellant had knowledge that he had been appointed
counsel prior to questioning by detectives, is irrelevant under the Court’s
18
holding in Montejo. The presumption under Jackson no longer exists to
invalidate Appellant’s voluntary statement. Appellant’s repeated knowing
and voluntarily waiver of his Miranda rights prior to providing a statement to
detectives controls.
The Texas Court of Criminal Appeals has followed the Supreme
Court’s refusal to presume a defendant’s consent to interrogation was
involuntary or coerced simply due to his appointment of counsel. See
Flores v. State, 299 S.W.3d 843, 851-52 (Tex. Crim. App. 2009) (citing
Montejo v. Louisiana, 556 U.S. 778, 792 (2009)); see also Hughen v. State,
297 S.W.3d 330, 334-35 (Tex. Crim. App. 2009); Pecina v. State, 361
S.W.3d 68, 78-81 (Tex. Crim. App. 2012)(recognizing that “[w]hen a person
is brought before a magistrate, told that he is formally accused of
committing a crime, and asked if he wants a lawyer to represent him in
those criminal proceedings, that is an entirely different question from
whether he wants a lawyer to be with him during any police questioning”).
Absent any showing by Appellant of improper coercion by law enforcement
officers during interrogation, or any causal connection between statements
made by Appellant and the delay in the appointment of counsel, the
statements made by Appellant during custodial interrogation should not be
suppressed.
19
Appellant argues that the delays in arraignment and appointment of
counsel affected the substantial right of Appellant to have access to an
attorney, requiring a harm analysis under Texas Rule of Appellate
Procedure 44.2(b). (Appellant Brief at 20). However, Appellant was
advised of his right to counsel on two occasions prior to giving his
statement to detectives. Each time, Appellant waived his rights and never
invoked his right to counsel.
According to the Texas Court of Criminal Appeals, a harm analysis
under Rule 44.2(b) requires the reversal of a conviction for non-
constitutional error if the appellate court finds that there was substantial or
injurious effect on the jury’s verdict. Barshaw v. State, 342 S.W.3d 91, 93-
94 (Tex. Crim. App. 2011); see also Nonn v. State, 117 S.W.3d 874, 881
(Tex. Crim. App. 2003); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000). While Appellant’s right to an attorney is a substantial right, no
evidence supports Appellant’s contention that this right was affected by any
delay in either the arraignment or appointment processes. The substantial
right in the present case is not whether the Appellant had access to his
appointed counsel, but instead, whether Appellant had knowledge of his
right to counsel during his interrogation.
20
In the present case, Appellant was advised of his Miranda warnings
before any questioning took place, and again when Appellant requested
that he be allowed to start the interrogation over. (SE 87, t—1:43). On
each occasion, Appellant acknowledged that he understood the warnings
and subsequently waived his rights. Appellant was made aware of his right
to counsel on each occasion. At no time was Appellant prohibited from
invoking his right to counsel, nor was there any indication by Appellant that
would suggest that he wished to invoke his right to counsel. The actions of
the magistrate did not affect Appellant’s knowledge of his right to counsel
or his ability to invoke that right. Therefore, Appellant’s statements could
be relied upon by the jury without substantial or injurious effect, thereby
failing the harm analysis under Texas Rule of Appellate Procedure 44.2(b).
IV. The record contains no evidence that the amount of the bond set
by the magistrate was unreasonable or rendered Appellant’s
statement involuntary.
Appellant complains that pursuant to Texas Code of Criminal
Procedure, Article 17.033(b), he should have been released from custody
within 48 hours of arrest. (Brief of Appellant at 23). According to Appellant,
the fact that Appellant was not released made his continued detention
unreasonable. (Brief of Appellant at 24). However, on November 25,
21
2013, detectives filed a sworn complaint supported by probable cause, and
the magistrate issued a valid warrant for Appellant’s arrest. At that point,
any violation of Article 17.033(b) became moot. Although Appellant asserts
that the magistrate “issued an untimely arrest warrant in an attempt to
retroactively correct her mistakes” and that the magistrate’s actions are
“evidence that the State had knowledge and intent” to violate Appellant’s
rights, this unfounded conclusion is not supported by the record. The
record simply reflects that on November 25, 2013, detectives filed a
complaint and the magistrate issued a warrant and set a bond. There
exists no evidence of animus on the part of the magistrate or detectives in
this procedural undertaking.
Appellant also asserts that the magistrate violated Article 17.15 of the
Texas Code of Criminal Procedure and Section 13 of the Texas
Constitution by setting an excessively high bond for a third degree felony.
(Brief of Appellant at 20-21). According to Appellant, the magistrate’s
failure to release Appellant pursuant to Article 17.033(b), coupled with the
amount of Appellant’s bond, subjected Appellant to an “environment of
compulsion” which combined to make Appellant’s statement involuntary.
(Brief of Appellant at 22). Appellant further asserts that the magistrate set
a high bond to keep Appellant from making bail, and disregarded the
22
legitimate factors which may be considered in setting bond pursuant to
Article 17.15. (Brief of Appellant at 29).
No evidence exists in the record to support Appellant’s conclusion
that the magistrate abused her discretion in setting Appellant’s bond. In
Texas, a magistrate may consider many factors in assigning the amount of
bail. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex Parte
Branch, 553 S.W.2d 380, 382 (Tex. Crim. App. 1977); Ex Parte Plumb, 595
S.W.2d 544, 546 (Tex. Crim. App. 1980); Ex Parte Thompson, 508 S.W.2d
624, 625 (Tex. Crim. App. 1974). According to the Texas Court of Criminal
Appeals, in setting bond, a magistrate may consider the work record, family
ties, and length of residency of the accused, as well as prior criminal record
and conformity with prior bond conditions. Ex Parte Rubac, 611 S.W.2d
848 (Tex. Crim. App. 1981); see also Ex Parte Gonzalez, 383 S.W.3d 162
(Tex. App.—San Antonio 2012, pet. ref’d)(outlining factors magistrate may
consider in setting bond as including nature and possible sentence
associated with offense, defendant’s ties to community, length of residency,
employment history, prior criminal record, compliance with prior bonds, and
aggravating factors involved in alleged offense). Article 17.15 of the Texas
Code of Criminal Procedure specifically provides that “[t]he nature of the
23
offense and the circumstances under which it was committed are to be
considered.” See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015).
In the present case, the record does not reflect which factors the
magistrate took into consideration in setting Appellant’s bond. Although
Appellant cites a number of offenses for which Appellant was previously
convicted, nothing in the record indicates what, if any, of this information
was relayed to the magistrate. The record does, however, reflect that
Appellant was charged by complaint with burglarizing a local business with
several co-defendants, and stealing a large amount of property. (CR. pp.
6-7). According to the complaint, the property stolen included new and
used furniture and was valued at approximately $30,000. (CR. p. 6).
Furthermore, according to the probable cause affidavit supporting the
complaint, at least four individuals, including Appellant, were involved in the
theft and a charge of organized crime was considered. (CR. p. 6; SE 87,
t—1:32-1:33).
Given the nature and circumstances of the offense, including the
number of people involved, the quantity of property involved, and the value
of the property stolen, the magistrate did not abuse her discretion in setting
Appellant’s bond. Although Appellant cites numerous reasons why
Appellant’s bond should have been set lower, the record contains no
24
evidence that the magistrate had knowledge of this information at the time
bond was set. No bond hearing was requested by Appellant, and none of
this information was articulated in the probable cause affidavit and
complaint filed by detectives. In fact, had the magistrate been aware of
Appellant’s criminal history at the time bond was set, bond could have been
denied pursuant to Tex. Const., Art. I, § 11a, subsection (a)(1) based upon
Appellant’s two prior sequential felony convictions for Robbery and Driving
While Intoxicated. See Tex. Const. Art. I, § 11a, subsection (a)(1).
Given the nature and circumstances of the offense committed by
Appellant and his colleagues, the bail set by the magistrate was not
unreasonable. There is simply no evidence to support Appellant’s claim
that the magistrate set the amount of Appellant’s bond to coerce or
influence Appellant into making a statement to detectives. Furthermore,
the context of Appellant’s repeated waiver of his rights during questioning
reveals that his statement to detectives was freely and voluntarily given.
Appellant asserts that statements made by Detectives Ibarra and
Mellas during Appellant’s interrogation reveal evidence that the magistrate
set Appellant’s bond with the intent to compel a confession. (Brief of
Appellant at 29). Appellant assert that statements made by Detective
Ibarra and Mellas to Appellant during questioning “give the inference that a
25
portion of Appellant’s bail amount is intended to pressure him into making a
statement against himself or other co-defendants.” (Brief of Appellant at
30). However, when the statements of Detective Ibarra and Mellas are
considered in context, they do not reflect any intention to pressure or
coerce Appellant. Ibarra’s statement to Appellant that “there is more to
this than you are telling me” reflected nothing more than a common sense
observation by Ibarra that the magistrate must have set Appellant’s high
bond based upon Appellant’s involvement in the case. Likewise, Detective
Mellas’ comment to Appellant that “your $200,000 bond is not set by
mistake” reflects nothing more than a common sense observation by
Detective Mellas that a magistrate would not set Appellant’s bond at
$200,000 without having been presented with evidence involving the
serious nature and circumstances of the offense.
Despite Appellant’s assertions to the contrary, the comments of
Detectives Ibarra and Mellas do not support the conclusion that the
magistrate set Appellant’s bond based upon anything other than the
legitimate objectives outlined in Article 17.15 and by caselaw. Appellant
was provided with Miranda warnings when he was first arrested, when he
went before the magistrate, and again twice by detectives before he
26
provided his statement. Appellant was aware of his rights and freely and
voluntarily waived those rights when he gave his statement.
V. The trial court properly denied Appellant’s Motion to Suppress
Appellant’s statement to detectives because the statement was
made voluntarily and without coercion or undue pressure.
Under Miranda, law enforcement officers are required to inform those
accused of crimes of their constitutional rights during custodial
interrogations to prevent law enforcement from coercing suspects to make
statements in an admittedly coercive environment. Miranda v. Arizona, 384
U.S. 436, 467–473 (1966). The Court in Miranda required that waivers be
signed by defendants who knowingly and intelligently waive their
constitutional rights. Id. at 492–493; see also Patterson v. Illinois, 487 U.S.
285, 296 (1988)(holding Miranda warnings sufficient to adequately inform
defendant of Sixth Amendment rights for the purposes of knowingly and
intelligently waiving those rights, in addition to consequences that may
occur if said rights are abandoned). Once a defendant has been informed
of their Constitutional rights through the use of Miranda warnings, any
voluntary statements made after waiving those rights is admissible. McNeil
v. Wisconsin, 501 U.S. 171, 176 (1991). The Appellant in the present case
waived his rights twice before giving his statement.
27
Under the holding in Miranda, a defendant may invoke his
constitutional right to remain silent, or to request an attorney at any time
during custodial interrogation, stopping any and all questioning once such a
request or invocation has occurred. Miranda 384 U.S. at 473 –475; see
also Michigan v. Mosley, 423 U.S. 96, 100–101 (1975) (reaffirming
presumption that any statements made after invocation of Miranda rights
amounts to compulsion); Edwards v. Arizona, 451 U.S. 477 (1981)
(reaffirming requirement to cease all interrogations after the rights to
counsel or silence has been invoked). Again, in the present case,
Appellant signed two different waivers during his custodial interrogation.
Appellant never indicated that he was unaware of his rights, nor did he
indicate an intention or desire to speak to an attorney or remain silent
during the interrogation. Appellant instead demonstrated a willingness to
speak to detectives, fully aware of his right to remain silent and his right to
counsel. Appellant made no unambiguous or unequivocal expression of
the desire of assistance by counsel as required by the Supreme Court.
Davis v. United States, 512 U.S. 452, 459–460 (1994); see also McNeil v.
Wisconsin, 501 U.S. 171, 178 (1991) (noting that the likelihood that
defendant may want assistance from counsel is insufficient to trigger
cessation of interrogation absent any expression of that desire).
28
The Supreme Court does not require law enforcement officers to
clarify any ambiguity by Appellant in his expression of assistance by
counsel, placing the burden upon Appellant to make a reasonably
understood invocation. Davis, 512 U.S. at 459–460. In the present case,
Appellant voluntarily waived his rights and made no assertion during
interrogation that could have been reasonably understood as requesting
the assistance of counsel. For this reason, the trial court properly denied
Appellant’s motion to suppress his statement.
CONCLUSION
Based upon the totality of the circumstances, Appellant’s statement in
the present case was voluntarily given. The magistrate made procedural
mistakes in failing to magistrate Appellant, and appoint counsel, within the
prescribed timeframes. These actions, however, did not amount to official,
coercive conduct of such a nature as to render Appellant’s statement
unlikely to have been the product of an essentially free and unconstrained
choice. The record does not support Appellant’s assertion that violations of
Article 15.17, 17.033 or 17.15 of the Texas Code of Criminal Procedure, or
Sections 10 or 13 of the Texas Constitution, acted to create an “improper
compelling environment for interrogation” that rendered Appellant’s
statement to detectives involuntary.
29
The Court of Criminal Appeals has refused to accept the notion that a
delay or failure to be taken before a magistrate is sufficient cause, in and of
itself, to suppress an otherwise voluntary statement. Appellant must show
a causal connection between his confession and any delay in being taken
before the magistrate, and being appointed of counsel, under Article 15.17
of the Texas Code of Criminal Procedure.
At the time Appellant provided his statement to detectives, he was
lawfully under arrest pursuant to the filing of a complaint supported by
probable cause. Prior to giving his statement, Appellant was twice read his
Miranda warnings by detectives. On both occasions during the same
interview, Appellant orally, and in writing, freely and voluntarily agreed to
waive those rights and provide a statement. There is no evidence that
Appellant was coerced or threatened into giving his statement. At no time
did Appellant make an expression of need or desire to be assisted by
counsel. Appellant has not met his burden of showing a causal connection
between the procedural errors and the voluntariness of his statement.
Appellant also fails to establish that the magistrate set Appellant’s
bond at an amount intended to coerce Appellant into giving a statement.
The information provided in the probable cause portion of the complaint
filed by Detective Mellas, and relied upon by the magistrate in exercising
30
her broad discretion in setting Appellant’s bond, indicates the nature and
circumstances of the offense alone justified the bond amount. Despite
Appellant’s assertions to the contrary, nothing in the record supports the
claim that the magistrate used, or intended to use, the bond amount as an
instrument of oppression. Furthermore, the record does not support
Appellant’s assertion that the amount of the bond influenced the
voluntariness of Appellant’s statement.
Given the totality of the circumstances surrounding Appellant’s
confession, the trial court did not abuse its discretion in denying Appellant’s
motion to suppress. While the record indicates that the magistrate did not
comply with all of the procedural requirements of Article 15.17 in
magistrating Appellant and appointing an attorney, the record does not
support Appellant’s assertions that the magistrate’s actions affected the
voluntariness of Appellant’s statement. Nothing in the interaction between
Appellant and detectives, or the actions of the magistrate, suggest that
Appellant was “overborne” by the circumstances surrounding the
confession such that it was unlikely the product of Appellant’s free and
unconstrained choice. Therefore, the trial court did not abuse its discretion
in overruling Appellant’s motion to suppress his statement to detectives.
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PRAYER
WHEREFORE, the State prays this Court overrule the issue
presented by Appellant and Affirm the Judgment of the trial court for the
reasons stated herein.
Respectfully Submitted,
ALLISON PALMER
51ST DISTRICT ATTORNEY
___________________________
JOHN BEST
Assistant District Attorney
51st Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
TSB# 00796203
ATTORNEY FOR STATE
32
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,
based upon the computer program used to generate this brief, that this
brief contains 5,762 words, excluding words contained in those parts of the
brief that Rule 9.4(i) exempts from inclusion in the word count. I further
certify that this brief is in a conventional 14-point typeface.
___________________________
JOHN BEST
Assistant District Attorney
CERTIFICATE OF SERVICE
I hereby certify that on August 25, 2015 a true and correct copy of the
foregoing Brief of State was electronically served on Randol Stout at
rls2700@gmail.com, Attorney for Appellant, through e-file.txcourts.gov.
.
___________________________
JOHN BEST
Assistant District Attorney
33