                                                                           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.



                                      31
                                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
