Frank Serrata AKA Francisco Serrata v. State
13-15-00200-CR
| Tex. App. | Nov 6, 2015Background
- Defendant Frank (Frank) Serrata was charged with possession of cocaine (<1 gram); he was convicted by a jury and sentenced to 7 years imprisonment.
- Traffic stop by Robstown officer John Garcia after radar showed 70 mph in a 55 zone; officer approached the vehicle during the stop.
- Officer testified he observed Serrata make a movement and saw a small yellow baggy with a white substance on the car floor; Serrata was removed from the vehicle and the officer searched the car without a warrant or consent. A separate small bag was found in Serrata’s pocket at booking.
- Defense moved to suppress the drug evidence as a Fourth Amendment violation; trial court heard testimony and denied the suppression motion at trial.
- Defense requested an Article 38.23(a) jury instruction (that the jury should disregard evidence they believe or reasonably doubt was illegally obtained); the trial court denied that requested instruction.
- Appellant appealed, arguing (1) the warrantless search lacked probable cause and (2) the trial court erred by refusing the Article 38.23(a) instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying the motion to suppress (Fourth Amendment) | Officer had probable cause to search after observing the furtive movement and seeing a baggy | Serrata: search was warrantless, without consent, and the officer lacked probable cause; furtive gesture and poor visibility insufficient | Trial court denied suppression (evidence admitted) |
| Whether the trial court erred by refusing an Article 38.23(a) jury instruction | State: no fact issue requiring the 38.23(a) instruction because search was reasonable | Serrata: the legality of the search raised a fact issue entitling him to the Article 38.23(a) charge instructing jury to disregard illegally obtained evidence | Trial court denied requested Article 38.23(a) instruction |
Key Cases Cited
- Whiteley v. Warden, 401 U.S. 560 (probable-cause standards apply to warrantless searches)
- Russell v. State, 717 S.W.2d 7 (Tex. Crim. App.) (burden shifts to State to prove reasonableness when no warrant)
- Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim. App.) (probable cause assessed under totality of circumstances)
- Brown v. State, 481 S.W.2d 106 (Tex. Crim. App.) (inarticulate hunch insufficient for probable cause)
- Howard v. State, 599 S.W.2d 597 (Tex. Crim. App.) (furtive gesture during traffic stop does not alone establish probable cause)
- Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App.) (defendant entitled to Article 38.23(a) instruction if the legality of evidence raises a jury fact issue)