Frank Serrata AKA Francisco Serrata v. State

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
vs.
THE STATE OF TEXAS,
APPELLEE
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
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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.
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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
violation of the Fourth Amendment.
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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
WHETHER THE TRIAL COURT ERRED IN DENYING THE
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
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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.
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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