Opinion
NUMBER 13-15-00200-CR
03-03-2016
FRANK SERRATA A/K/A FRANCISCO SERRATA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Francisco Serrata was charged with possession of a controlled substance (cocaine), a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through 2015 R.S.). By two issues on appeal, Serrata contends that the trial court erred by failing to: (1) suppress the drug evidence; and (2) give the requested jury instruction pursuant to article 38.23(a). See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West, Westlaw through 2015 R.S.). We affirm.
I. BACKGROUND
Police Officer John Garcia was on patrol in Robstown during the graveyard shift. Around 3:00 a.m., he stopped Serrata for going 70 mph in a 55 mph zone. Garcia testified that he used a flashlight to examine Serrata's hands for safety reasons. Garcia also testified that when he asked Serrata for his proof of insurance, he noticed that Serrata leaned forward and attempted to hide a small, yellow baggie under the car seat with his left hand. According to Garcia, he believed that the substance in the baggie was cocaine because he knew illegal substances were frequently packed in small baggies of different colors due to his training and six years of experience with the Robstown Police Department.
At that time, Garcia asked Serrata to exit the vehicle, placed him in custody, and then retrieved the baggie from the car. Once transported to the Robstown Police Department, another baggie of cocaine was found in Serrata's shirt pocket.
Prior to voir dire, Serrata made a motion to suppress evidence obtained in violation of the Fourth Amendment. The trial judge informed Serrata that the motion would be carried and considered during trial outside the jury's presence. At trial, at the close of evidence, the trial court announced that it would deny Serrata's motion to suppress. After the court made its announcement, Serrata requested, according to article 38.23(a), that the jury be instructed to disregard the cocaine if it believed it was obtained in violation of the Constitution. Id. Serrata contended that Garcia's testimony during cross- examination, in which he said he saw "something" in the car, as well as the video evidence from Garcia's patrol car, raised a fact issue as to the legality of the search. However, the trial court denied Serrata's requested instruction.
The jury found Serrata guilty of the charged offense, and the trial judge assessed punishment at seven years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
II. MOTION TO SUPPRESS
In his first issue on appeal, Serrata argues that it was an error for the trial court to not suppress the drug evidence because Officer Garcia had no probable cause to search Serrata's vehicle.
A. Standard of Review and Applicable Law
"A trial court's ruling on a motion to suppress, like any ruling on the admission of evidence, is subject to review on appeal for abuse of discretion." Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The trial court's ruling will be upheld if it is "reasonably supported by the record" and is correct under any theory of law applicable to the case. Id. When the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court's ruling. See State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006).
The Fourth Amendment protects against unreasonable searches and seizures by government officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). Searches conducted without a warrant are normally unreasonable. See Wiede, 214 S.W.3d at 24. However, there are several exceptions to the rule; for example, "a warrantless search of a vehicle is reasonable if law enforcement officials have probable cause to believe that the vehicle contains contraband." Id. Another exception is the "plain view" doctrine: "[i]f an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy." Walter, 28 S.W.3d at 541. The plain view doctrine requires that the officers have a right to be where they are, and that it be immediately apparent that there is probable cause to associate the property to be seized with criminal activity. Id. Also, "it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect." Alford v. State, 358 S.W.3d 647, 661 (Tex. Crim. App. 2012) (quoting Illinois v. Lafayette, 462 U.S. 640, 643 (1983)).
Probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Wiede, 214 S.W.3d at 24. On review, we consider the totality of the circumstances in determining whether probable cause existed. Id. at 25. We take into account the officer's training, knowledge, and experience, as well as common sense. See id.; Miller v. State, 667 S.W.2d 773, 777 (Tex. Crim. App. 1984).
B. Discussion
We conclude that the facts and circumstances known to Garcia were more than sufficient to establish probable cause as to justify a search of the car. It is uncontested that Serrata was travelling over the speed limit. It is further uncontested that the initial stop was valid; therefore, Garcia was in a place he was allowed to be. See Walter, 28 S.W.3d at 540; see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). Garcia testified that due to his training and experience as an officer, he knew that illegal substances were frequently stored in small, colored baggies, such as the one he saw in plain sight in Serrata's vehicle. Furthermore, Garcia witnessed Serrata trying to hide the bag under the front car seat. The totality of the circumstances would warrant a reasonable person to believe evidence of crime would be found if the car was searched. See Wiede, 214 S.W.3d at 24 (observing that the officer had probable cause to search when he witnessed the defendant attempting to hide a small baggie after being pulled over). Therefore, Garcia possessed the requisite probable cause to search Serrata's vehicle. See id. The trial court did not abuse its discretion by admitting the drug evidence. We overrule Serrata's first issue.
III. JURY INSTRUCTION
In his second issue on appeal, Serrata argues that it was an error for the trial court to not include a jury instruction pursuant to article 38.23(a).
A. Standard of Review and Applicable Law
Alleged charge error is reviewed by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Preservation of charge error does not become an issue until it is necessary to assess harm. Id. at 743.
Article 38.23(a) states:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.TEX. CODE CRIM. PROC. ANN. art. 38.23(a). To be entitled to an instruction under Article 38.23(a), a defendant must meet three requirements: (1) the evidence heard by a jury must raise an issue of fact, (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. See Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). However, questions, arguments, and insinuations made by defendant's counsel are insufficient to create factual issues; there must be some affirmative evidence to raise an issue. See id. at 515. If there is no disputed issue of fact, then the legality of the questioned conduct "is determined by the trial judge alone, as a question of law." Id. at 510. Furthermore, it is the trial judge that decides the existence of probable cause when there are no disputed issues of fact. See id. Therefore, a defendant is not entitled to an instruction on whether an officer had probable cause. See id. To actually obtain a jury instruction under 38.23(a) once it has been proven that a party is entitled to one, the party must request an instruction on a specific historical fact. See Madden, 242 S.W.3d at. 511.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a 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.
B. Discussion
Serrata claims that there was a fact issue as to whether Garcia possessed probable cause because of the video evidence obtained from Garcia's patrol car and because during cross-examination, Garcia said that he saw "something" on the floor, but did not specify that he specifically saw a baggie of what appeared to be cocaine. However, Garcia testified consistently, both on direct and cross-examination, that he saw a baggie of what he believed to be cocaine. Pointing out an alleged inconsistency in a witness's testimony does not create a fact issue meriting an instruction under article 38.23(a). See Trent v. State, 925 S.W.2d 130, 133 (Tex. App.—Waco 1996, no pet.); see also Price v. State, No. 05-10-00640-CR, 2012 WL 2890877, at *4 (Tex. App.—Dallas July 16, 2012, no pet.) (mem. op., not designated for publication).
Neither does the video create a fact issue; rather, it supports a finding of probable cause. On the video, after Serrata was removed from his vehicle but before Garcia searched the vehicle, Garcia is heard talking to Serrata about a baggie of cocaine. This supports the notion that Garcia was not engaging in an unlawful, broad search for any potential contraband but believed he would find a specific piece of contraband upon searching the vehicle: a yellow baggie of cocaine under the front seat. Furthermore, Serrata's requested instruction did not request an instruction on a specific historical fact. See Madden, 242 S.W.3d at 511. It asked for the jury to generally determine the legality of Garcia's seizure of the baggie and ignore the drug evidence if the jury believed the search was illegal. The requested instruction did not specify which disputed historical fact the jury should determine, which is a mandatory requirement for obtaining an instruction under article 38.23(a). See id.
The trial court did not err by not including Serrata's requested jury instruction. We overrule Serrata's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
Nora L. Longoria
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 3rd day of March, 2016.