May 12, 2015
                        IN THE COURT OF APPEALS
                    FOR THE THIRD DISTRICT OF TEXAS
                                AT AUSTIN                          RECEIVED IN
                                                              3rd COURT OF APPEALS
                                                                  AUSTIN, TEXAS
      Appellate Cause No. 03-14-00516-CR                      5/8/2015 3:55:36 PM
      Trial Cause     No. D-14-0081-SA                          JEFFREY D. KYLE
                                                                      Clerk



                           MARK ANTHONY SERRANO,


                                                      Appellant
                                       v.
                            THE STATE OF TEXAS,
                                                      Appellee.


                  On Appeal from the 39Jsr District Court
                     in Tom Green County, Texas


                            APPELLANT'S BRIEF


                                     Randol L. Stout
                                     Texas Bar No. 19331800
                                     202 W Beauregard
                                     San Angelo, Texas 76903
                                     (325) 658-6816
                                     (325) 658-61 14- Facsimile
                                     rls2700@1!.tnai l.con1

                                     ATTORNEY FOR APPELLANT
                                     MARK ANTHONY SERRANO


      NO ORAL ARGUMENT IS REQUESTED

                                       1
TO THE HONORABLE COURT OF APPEALS:

      Mark A. Serrano, Appellant in the above-referenced cause (referred to

herein as "Mr. Serrano"), files his Principal Brief pursuant to Texas Rule of

Appellate Procedure 38.1. He respectfully shows as follows:


                 IDENTITIES OF PARTIES AND COUNSEL

The parties to the judgment from which Appellant appeals are:

      1. Mark A. Serrano, Defendant-Appellant; and

      2. The State of Texas, Plaintiff-Appellee.

      The parties' trial and appellate counsel are:

      1. Trial Counsel for Appellant
         Shawntell L. McKillop
         25 West Beauregard Avenue
         San Angelo, TX 76903
         325-939-0027

      2. Appeal Counsel for Appellant
         Randol L. Stout
         202 W. Beauregard
         San Angelo, Texas 76903
         325-658-6816

      3. For Plaintiff-Appellee The State of Texas (referred to herein as "the
         State")
         Allison Palmer (51st District Attorney)
         John Best (51st District First Assistant)
         Office of the 51st District Attorney
         124 W. Beauregard
         San Angelo, Texas 76903


                                         2
                                         TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL ........................................................ 2
TABLE OF CONTENTS .......................................................................................... 3
INDEX OF AUTHORITIES .....................................................................................4
STATEMENT OF THE CASE ................................................................................. 5
STATEMENT REGARDING ORAL ARGUMENT ............................................... 5
ISSUES PRESENTED .............................................................................................. 5
STATEMENT OF FACTS ....................................................................................... 6
SUMMARY OF THE ARGUMENT ...................................................................... 12
ARGUMENT .......................................................................................................... 14
   I. The State violated TCCP Article 15.17 and these violations made Appellant's
      statement involuntary and therefore Appellant's statement should be
      suppressed ............................................................................ 16

   II. The State violated TCCP Article 17 and these violations made Appellant's
       statement involuntary and therefore Appellant's statement should be
       suppressed ......................................................................... 23
PRAYER ................................................................................................................. 33
CERTIFICATE OF COMPLIANCE ...................................................................... 34
CERTIFICATE OF SERVICE ............................................................................... 35




                                                           3
                          INDEX OF AUTHORITIES

                      UNITED STATES SUPREME COURT
Bram v. U.S., 168 U.S. 532 (1897)
Miranda v. Arizona, 384 U.S. 436 ( 1966)
Michigan v. Jackson, 475 U.S. 625 (1986)
Montejo v. Louisiana, 556 U.S. 778 (2009)


                   TEXAS COURT OF CRIMINAL APPEALS
Ludwigv. State, 812 S.W.2d 323 (Texas Crim. App. 1991)
Ex Parte Stansberry, 702 S.W.2d 643 (Texas Crim. App. 1986)
Pecina v. State, 321 S.W.3d 68 (Texas Crim. App. 2012)


                       UNITED STATES CONSTITUION
Fourth Amendment
Fifth Amendment
Sixth Amendment
Eight Amendment


                            TEXAS CONSTITUION
Section Nine
Section Ten
Section Thirteen


                   TEXAS CODE OF CRIMINAL PROCEDURE

Article 15.17
Article 17.033
Article 17.15


                                           4
                           STATEMENT OF THE CASE
      Appellant, Mark Anthony Serrano, was indicted on a third degree felony theft

charge in Tom Green County, Texas in January 2014. The indictment was numbered

D-14-0081-SA and also alleged two additional enhancement paragraphs against the

appellant. Appellant was tried by a jury and found guilty. The jury, after finding the

two enhancement paragraphs true, assessed punishment at 25 years in the Texas

Department of Corrections. It is from this sentence that Mr. Serrano appeals.

               STATEMENT REGARDING ORAL ARGUMENT


      No oral Argument is requested by Appellant.



                                ISSUE PRESENTED

      The State's violation of Article 15.17, 17.033 and 17.15 of the Texas Code of

Criminal Procedure {TCCP) and Sections 9, 10 and 13 of the Texas Constitution had

the effect of additional improper State compulsion on Appellant to influence him to

make a statement against himself and against his own free will. The circumstances of

Appellant's initial arrest, detention and interrogation, while only violations of the

TCCP had the effect of subtlety infringing on Appellant's constitutional rights

including his Fourth Amendment to be free from unreasonable detention, Eighth

Amendment right to free from excessive bail and his Sixth Amendment right to

consult with his attorney prior to and during any questioning after State prosecution
                                           5
has begun. The State's violations also violated the Appellant's rights under the

Texas Constitution Section 9 to be free from unreasonable seizures, Section 10 that

Appellant shall not be compelled to give witness against himself and has the right of

being heard by himself or counsel or both, and Section 13 to be free from excessive

bail.

        Because Appellant's statement on November 26th, 2013 was given under the

influence of improper State compulsion it should be suppressed. I would ask the

Court to consider each violation of TCCP individually as making Appellant's

statement involuntary, and also consider the impact on the Appellant of the totality of

the State's violations of the TCCP.


                             STATEMENT OF FACTS
        Several truckloads of furniture were stolen from a furniture warehouse in Tom

Green County, Texas beginning on or about November 11th, 2013 and continuing for

a period of several days. (RR, Vol. 3, 154). The Sherriff's Office began investigating

the crime and received a tip from a confidential informant which stated that the

person had been at the home of Appellant and thought they had identified the stolen

property at his home. (RR, Vol. 3, 173). Based on this tip the investigating officer

drove by Appellant's home at 1411 South Irving in San Angelo, Texas to look for

any evidence that the stolen property was being stored at the home. The investigating

officer observed what he believed to be furniture packing material in the trees and

                                          6
trash cans of Appellant's home. (RR, Vol. 3, 161 ). The officer made out a probable

cause affidavit for issuance of a search warrant to search Mr. Serrano's home. Search

warrant M-13-0898 was issued for the search for the stolen furniture at Mr. Serrano's

home. (RR, Vol. 3, 163; Vol. 7, Ill- 114).

      Search warrant M-13-0898 was executed on November 20th, 2013 in the

evening and a portion of the stolen furniture was located at Mr. Serrano's residence.

(RR, Vol. 3, 165). Mr. Serrano was arrested without an arrest warrant after the

search of his home on the evening ofNovember 20•\ 2013, a Wednesday at 9 p.m ..

For reference this was the week before the Thanksgiving holiday in 2013. The same

evening based on information from the confidential informant the investigating

officers went to the home of Appellant's mother at 315 N. Milton, San Angelo,

Texas to search for more of the stolen furniture. (RR, Vol. 5, 39). Appellant's

mother gave consent to search her home and the sheriff deputies located and

recovered additional pieces of the stolen furniture in the home and in a storage

building behind the home. (RR, Vol. 5, 235).

      The next day was Thursday November 21 5\ 2013 and the investigation into the

theft and suspects continued and Appellant was in custody at the county jail on a

work day but was not taken before a magistrate. The following day Friday

November 22"d, 2013 the Appellant remained in custody at the county jail under

arrest without a warrant and was still not taken before a magistrate. At 10:30 a.m.


                                         7
on Saturday; November 23rd, 2013, the defendant was finally taken before a

magistrate 61 hours after his initial arrest. (CR, 1). In front of the Magistrate the

Appellant requested a court appointed attorney and filled out an affidavit to verify

his income and that he qualified for an appointed attorney. (CR, 2). The magistrate

checked both boxes under the section titled "Probable Cause and Order Setting

Bond", but initialed next to the arrested under warrant as if the box was marked in

error. (CR, 1).On the next line below listed as "arrested without warrant" is also

checked and sets a bond for Appellant in the amount of $200,000. (CR 1) The

request for appointment of an attorney was not faxed to the person authorized to

assign counsel in felony cases until November 25 1\ 20 13; 48 hours after the request.

(CR 1).

     On November 25 1\ 2013 Shawntell McKillop was appointed as Appellant's

attorney. (CR, 2). Appellant could not make the $200,000 bond and remained in

custody. Appellant was arrested without a warrant. On November 25th, 2013 the

Justice of the Peace issues an arrest warrant for Appellant. (Arrest Warrant M-13-

0903). The order appointing Ms. McKillop was not transmitted to her office until

the next day on November 26 1h, 2013 at 11:17 a.m. (CR, 3). On November 26th,

2013 Appellant was taken from the jail by Sheriffs deputies to the Sherrifrs office

at approximately noon for interrogation . (RR, Vol. 3, 20 I). Appellant claims that

he was told by jailer that he had an attorney visit, which actually turned out to be an


                                          8
interrogation at the Sheriffs office. (RR, Vol. 3, 201).

The alleged purpose of the interview with Appellant was to identify other co-

defendants and their role in the crime. (RR, Vol. 5, 40).

     Appellant is read his Miranda warnings by Deputy Ibarra before beginning the

interrogation and Appellant states he understands his rights. (SE 87, t -2:00). After

reading him his rights Deputy Ibarra asks Appellant if he would like to continue and

Appellant answers affirmatively. (SE 87, t -2:00). Appellant brings up his bond

amount of $200,000 with Deputy Ibarra and Ibarra responds, ''tell me why you have

that. .. there is much more to this than you are telling me". (SE 87, t- 26:50).

Appellant is uncooperative during the first half of the interrogation and is not

willing to make a confession against himself. Deputy Ibarra confronts Appellant of

holding back and not being truthful and tells him he has to help himself and

Appellant's response is that he is just digging himself deeper if he talks. (SE 87, t-

30:30). Deputy Mellas enters the room and confronts Appellant again saying that

Appellant is not going to help himself or the detectives and states that he does not

need the Appellant's help in arresting suspect Aaron Wilde. (SE 87, t- 36:00).

     Deputy Mellas then tells Appellant that his bond is not set by mistake. (SE 87,

t- 36:30). Detective Bloom then explains to Appellant three levels of cooperation

and how the message of the Appellant's cooperation will be relayed to the

prosecuting attorney. (SE 87, t- 38:40). Deputy Bloom asks Appellant who his


                                          9
attorney is and Appellant responds that he does not have one. (SE 87, t- 40:35).

Appellant then asks the deputies if he can start all over. (SE 87, t- 42:00). Appellant

is again read his Miranda warnings but not asked if he waives those rights. (SE 87,

t- 42:30). Appellant proceeds to make a confession to his involvement in the crime

and discusses the roles of the other co-defendants. After making his confession

Appellant asks if the deputies think he is being more cooperative and Deputy Mellas

responds, ''[Y]es that he is going to call the prosecutor for Appellant but that he

cannot promise anything." (SE 87, t -I :03:00). At the end of the interrogation

Appellant states that he will show Deputy Mellas where codefendant Aaron Wilde

lives and Me lias responds that he already knows where Mr. Wilde lives. (SE 87, t -

I: I 0:45).

      On November 271h, 20 I3 another search warrant for 5I59 Schmidt off of Old

Christoval Road was prepared for the residence of Aaron Wilde. {RR, Vol. 5, 4I-

42). A portion of the stolen furniture was located at 5I59 Schmidt. {RR, Vol. 5, 43).

Later in the investigation a warehouse at I249 Templin Rd in Tom Green County,

Texas was searched with the consent of the owner. (RR, Vol. 5, 49). The majority

of the stolen property was recovered from the warehouse on Templin Rd. (RR, Vol.

5, 54). Deputy Me lias attempts to testify concerning who a vehicle of interest

belonged to but due to his lack of personal knowledge his response is stricken from

the record. (RR, Vol. 5, 67).


                                          10
     Anadee Thomas was working night security at a warehouse not far from the

location ofthe theft in Tom Green County, Texas. (RR, Vol. 5, 180). Ms. Thomas

personally knew Aaron Wilde because he did business at the antique warehouse and

Ms. Thomas had been personally introduced to Appellant by Mr. Wilde at the

antique warehouse. (RR, Vol. 5, 182- 183).0n the night ofNovember t3•h, 2013

Ms. Thomas was working security for the antique warehouse where she is employed

and witnessed a Tahoe pulling a trailer passing by her location several times. (RR,

Vol. 5, 190). This occurred at 4:00 a.m. and made Ms. Thomas suspicious so she

followed the vehicle. (RR, Vol. 5, 191). After following the Tahoe for a short

distance Ms. Thomas saw the Tahoe on the side of the road pulled up next to a black

four wheel drive truck with a flatbed trailer attached. (RR, Vol. 5, 192). When on

the side of the road the driver of the truck rolls his window down, but Ms. Thomas

did not recognize anyone in the truck. (RR, Vol. 5, 194). Ms. Thomas identifies

Appellant as being the driver of the Tahoe. (RR, Vol. 5, 195). Ms. Thomas told both

vehicles that she had called the police and both the truck and the Tahoe left. (RR,

Vol. 5, 196).

     Ms. Thomas returned to the Antique warehouse and then saw the Tahoe drive

by again and Ms. Thomas decided to follow it. (RR, Vol. 5, I97). Ms. Thomas

followed the Tahoe until it parked next to a church in San Angelo, Texas. (RR, Vol.

5, 195). On cross examination Ms. Thomas identifies this location where the Tahoe


                                         II
stopped as the home of Appellant. (RR, Vol. 5, 21 0). On cross examination Ms.

Mckillop attempts to impeach Ms. Thomas with her statement to police about the

events on November 13 1h, 2013in which she does not positively identify the

Appellant. (RR, Vol. 5, 207-209) Ms. Thomas testifies that both trailers pulled by

the Tahoe and the truck were empty when she witnessed them. (RR, Vol. 5, 213).

      The defense introduced four exhibits being defense exhibit two through five.

Ms. Reed identifies defense exhibit 2 and 3 as lists of furniture recovered from

different locations. (RR, Vol. 6, 24 ). These lists were personally prepared by Ms.

Reed and Deputy Mellas. {RR, Vol. 6, 24 ). Defense exhibit 2 is a list of all furniture

recovered from Appellant's home, Appellant's mother's house and from the home

of Aaron Wilde. Defense exhibit 3 is a list of all furniture recovered from 1249

Templin Rd. The values on the lists are for insurance purposes and Defense Exhibit

2 and Defense Exhibit 3 have totals of$10,794.22 and $13,700 respectively.



                        SUMMARY OF THE ARGUMENT

      The Fifth Amendment to U.S. Constitution guarantees the right of a criminal

defendant not to be compelled to give witness against himself as does Section 10 of

the Texas Constitution. The U.S. Supreme Court recognized in Miranda that the

environment created by the State during in custody interrogation of Defendant is

inherently compelling and in recognition of this the Court announced the substance


                                          12
of a warning to be given to the defendant prior to any in custody interrogation. The

intent of the warning is to apprise the Defendant of his rights and neutralize the

inherent compelling forces of in-custody interrogation.

      The Texas Code of Criminal Procedure is intended as the mechanism to ensure

that a criminal defendant's rights under the U.S. Constitution and Texas Constitution

are recognized. When the State violates the TCCP the defendant's constitutional

rights are infringed upon and these infringements may apply subtlety compelling

forces on the defendant to compel him to give a statement against himself. Under

these infringements upon Appellant's Constitutional rights the State improperly

compelled Appellant to give a statement against himself. The Miranda warning

given to Appellant is insufficient to cure this improper compulsion by the State and

therefore Appellant's statement given on November 26th, 2013 is involuntary and

should be suppressed.

      Section 15.17 of the Texas Code of Criminal Procedure was violated when

Mr. Serrano was taken before the magistrate and because his recorded statement

given on November 26, 2013 was given under the taint of State compulsion, through

violations ofTCCP, the statement should be suppressed. Appellant's bail amount

violated the Texas Constitution § 13 and Texas Code of Criminal Procedure § 17.033

and § 17.15 and because Appellant's statement was given under the influence of these

State violations ofTCCP and Texas Constitution it should be suppressed. The


                                           13
compelling affect on Appellant due to the totality of these violations should also be

considered. The totality of these improper compelling forces by State violations of

the Texas Code of Criminal Procedure in addition to the inherently compelling

nature of the interrogation environment overwhelmed the Appellant's free will and

made his statement involuntary, and for these reasons Appellant's statement should

be suppressed.

                                    ARGUMENT

    The Fifth Amendment to U.S. Constitution and Section I 0 of the Texas

Constitution guarantee the right of a criminal defendant not to be compelled to give

witness against himself. The U.S. Supreme Court recognized in Miranda that the

environment created by the State during in custody interrogation of Defendant is

inherently compelling and in recognition of this the Court announced the substance

of a warning to be given to the defendant prior to any in custody interrogation.

Miranda v. Arizona, 384 U.S. 436, at 457-458. The intent of the warning is to

apprise the Defendant of his rights and neutralize the inherent compelling forces of

in-custody interrogation, thus satisfying the Constitutional rights of the defendant. A

statement given by a defendant while in interrogation must be given voluntarily and

after a knowing and intelligent waiver of his rights after being given the Miranda

warning. A confession obtained by compulsion must be excluded whatever may have

been the character of the compulsion, and whether the compulsion was applied in a


                                          14
judicial proceeding or otherwise. Miranda v. Arizona at 462, citing Bram v. U.S.,

168 u.s. 532.

    "The rule is not that, in order to render a statement admissible, the proof must be

adequate to establish that the particular communications contained in a statement

were voluntarily made, but it must be sufficient to establish that the making of the

statement was voluntary; that is to say, that, from the causes which the law treats as

legally sufficient to engender in the mind of the accused hope or fear in respect to the

crime charged, the accused was not involuntarily impelled to make a statement when

but for the improper influences he would have remained silent.   * * *" Miranda at
462, citing Bram v. U.S., 168 U.S., at 549.

    State violations of Article 15.17, 17.033 and 17.15 of the Texas Code of

Criminal Procedure and Section I 0 and 13 of the Texas Constitution had the effect of

creating an improper compelling environment for interrogation of the Appellant.

Appellant was subjected to this compelling environment and under this improper

State compulsion made a statement against himself. The Miranda warning given to

Appellant does not have the capacity to neutralize this improper State compulsion

and therefore Appellant's waiver of his rights after given the Miranda warning on

November 261h, 2013 should be found ineffective and Appellant's statement

involuntary and suppressed. But for the State's improper influences the Appellant

would have remained silent and not made a statement against himself.


                                          15
                TEXAS CODE OF CRIMINAL PROCEDURE ART. 15.17

      Article 15.17 ofthe Texas Code of Criminal Procedure is titled "Duties of

Arresting Officer and Magistrate" and the article outlines legal process for informing

a person that has been arrested of the charges against him and his legal rights. The

first duty specified is that a person making an arrest or person having custody of an

arrested individual shall without unnecessary delay, but not later than 48 hours after

arrest, take the person arrested before a magistrate for the warnings described by the

Article. The warnings required by this Article echo a defendant's Miranda warnings

and include: his right to retain counsel, right to remain silent, right to have his

attorney present during any interview with peace officers or attorney for State, right

to terminate interview at any time, that he is not required to make a statement, any

statement will be used against him in Court, and his right to an examining trial.

      The article also requires the magistrate to inform the individual of his right to

request the appointment of counsel if he cannot afford an attorney and of the

procedures for requesting appointment of counsel. If the magistrate is not authorized

to appoint counsel, the magistrate shall without unnecessary delay, but not later than

24 hours after the person arrested requests counsel, transmit the request to Court's

designee for appointment of counsel to the defendant. Finally, the magistrate

determines if the person is eligible for bail and if so the magistrate sets the bail. For


                                            16
suppression of Appellant's statement the burden is on him to prove that the delay in

bringing him before the magistrate was unreasonable and to prove a causal

connection between Appellant's confession and delay in taking him before a

magistrate. Ex parte Stansbery, 702 S.W.2d 643,647 (Tex.Crim.App.l986).

                                           I.

      Mr. Serrano was arrested on a Wednesday, November 201\ 2013; at

approximately nine p.m .. He was arrested without an arrest warrant while the

sherifrs office executed a search warrant at his home. Mr. Serrano was held in

custody for the following 60 plus hours before being taken before a magistrate. Even

though Thursday and Friday after the arrest were work days, Mr. Serrano was not

taken before a magistrate until November 23rd, 2013 (Saturday) at ten a.m .. This is

over 60 hours after Appellant's arrest without a warrant. This delay exceeds the 48

hours specified in the Article and is presumptively unreasonable and it is for the

State to prove this delay not unreasonable.

      Article I 5.17 requires the defendant's appointment request to be sent without

undue delay but not later than 24 hours, after the request has been made, to the a

person authorized to make appointments of defense counsel. This mandate of Article

1'5 .17 addresses the reality that State prosecution against the defendant has begun

and the defendant needs representation without further delay and with all practical

haste. Despite the mandate of Article 15.17 that the appointment request is to be


                                          17
transmitted within 24 hours the request for an attorney by Appellant was not

transmitted to the person authorized to make appointments until November 25t\

20 I3approximately 48 hours after making the request.

      The effect of these two State violations of the simple mandates ofTCCP I5.I7

had the effect of delaying appointment of Appellant's counsel until six days after his

arrest. The notice of appointment was not transmitted to Ms. McKillop's office until

November 26, 20 I3 at II :00 a.m .. These violations effectively denied Appellant

counsel for 72 hours, which turned out to be extremely critical to Appellant's

defense. If the State adhered to the mandates of Article 15.17 then it is reasonable to

assume that Appellant could have appeared before the magistrate the next day

November 21, 2013. It is also reasonable that the appointment of counsel could have

been made and transmitted to Ms. McKillop by end of business on November 22nd,

20I3 orat the latest on November 25th, 2013. Ms. McKillop's office is

approximately 200 yards from the county jail where Appellant was in custody. If Ms.

McKillop would have received this notice timely then she would likely visited with

Appellant prior to his confession on November 26•\ 2013 and Appellant would not

have made the confession on November 26th, 2013. This unreasonable delay had the

effect of depriving Appellant of counsel, and with counsel Appellant would not have

made his confession.




                                          18
                                           II.

      In Pecina v. State, Justice Alcala, joined by Justice Johnson, wrote to identify

the confusion a defendant experiences when asked whether he wants an attorney to

represent him and the defendant answers affirmatively, yet no attorney is provided

and typically no explanation is given as to when or who the defendant will have to

represent him. Pecina v. State, 361 S.W.3d 68 (Texas Crim. App. 2012). Article

15.17 requires the magistrate to inform in clear language the person arrested of the

accusation against him, his right to remain silent, right to counsel, rights during State

questioning , and right to request the appointment of legal counsel.

      Appellant requested an attorney when he appeared before a magistrate on

November 23rd, 2013. (CR, 2). It is completely reasonable to assume that Appellant

is unaware of the distinction between trial counsel and interrogation counsel.

Appellant in this case is in the same confusing situation as identified by Justice

Alcala in Pecina. Id at 83. On November 23rd, 2013 Appellant requested an attorney

and by November 26th, 2013, 72 hours later Appellant was still not aware who his

attorney was. This is evidenced by Appellant's statement during interrogation when

asked by Detective Bloom who his attorney is the Appellant responds that he does

not have one. (SE 87, t -40:35). Some type of explanation was due to Appellant from

magistrate because of the presumptively unreasonable delay in taking Appellant

before the magistrate. Additionally, the request for appointment is required to be


                                           19
transmitted within 24 hours, and in this case it was not transmitted until 48 hours

after the request was made. There is no record of the magistrate explaining to

Appellant that due to delays by the State that Appellant's appointment will likely

also be delayed. Appellant should have been given notice of how much longer it

would be before he had knowledge of who is attorney was.

      The State clearly violated Article 15.17 ofTCCP multiple times and made no

effort to correct their violations. In fact the State only compounded their errors and

their affect on Appellant, in their refusal to address and correct their mistakes in the

prosecution of Appellant. Because of these blatant violations of Article 15.17

Appellant requests a harm analysis under Texas Rules of Appellate Procedure

44.2(b). I d. at 82- 83. The Appellant was without knowledge of who his counsel was

at the time of his interrogation because of the blatant violations of Article 15.17 by

the State and the magistrate's failure to explain these violations and the effect of

these violations on Appellant and his access to an attorney. At the time of

Appellant's interrogation he did not even know if he had an attorney or who it was

and without this knowledge Appellant's waiver of his right to speak with his attorney

after reads his Miranda warning was unknowing and thus invalid.

                                         III.

      Article 15.17 requires the magistrate to set a bail amount for the defendant if

he is eligible for a bail. Section 10 of the Texas Constitution guarantees every


                                           20
criminal defendant the right to be heard by himself, counsel, or both. Previously the

U.S. Supreme Court held in Michigan v. Jackson that the defendant's request for

counsel before the magistrate made any subsequent waiver of defendant's rights to

give a statement presumptively invalid. Michigan v. Jackson, 415 U.S. 625 (1986).

This precedent was overruled by the U.S. Supreme Court in Montejo v. Louisiana,

556 U.S. 778 (2009). The Jackson Court decided that a request for counsel at an

arraignment should be treated as an invocation of the Sixth Amendment right to

counsel "at every critical stage of the prosecution," despite doubt that defendants

"actually inten[ d] their request for counsel to encompass representation during any

further questioning," Jackson at 632-633.

      Appellant argues not under the U.S. Constitution but under Section 10 of the

Texas Constitution that a defendant is entitled to representation at all critical stages

of the State proceedings against him. When a defendant appears before a magistrate,

State prosecution against him has begun and critical stages of the proceedings against

him can occur right then or any time after. Appearing before a magistrate can be

routine but could be a critical stage of the proceedings depending on the

circumstances when a defendant is before the magistrate. Appellant argues that the

Magistrate made the hearing a critical stage requiring Appellant's representation

under Section 10 of the Texas Constitution when his bail was set unconstitutionally

high in the amount of $200,000, for a third degree felony.


                                           21
      If bail for Appellant is set according to some fixed table of amounts for a

specified degree of offense, as done in some more populous Counties in Texas, then

no representation of defendant should be required by Section 10 of the Texas

Constitution when the Appellant appears before the magistrate. However, if the

magistrate desires to exercise her discretion and set a higher bail amount than the

amount specified then the defendant should be represented by counsel before his bail

is set above the specified amount. The State is represented when the defendant is

taken before the magistrate and to proceed against the defendant while he has no

counsel is to put defendant at a disadvantage to the State and at their mercy regarding

one of his Constitutional rights to be free from excessive bail. Lack of representation

when Appellant's bail was set unconstitutionally high violated Section 10 of the

Texas Constitution regarding Appellant's right to be heard by counsel.

      These violations of Article 15.17 by the State and their failure to remedy them

created an environment of compulsion that the Appellant was subjected to when he

made a statement against himself. If Article 15.17 had been adhered to then

Appellant would not have been subjected to this improper State compulsion.

Appellant's statement was made while subjected to this improperly compelling

environment and therefore his statement should be deemed involuntary and

suppressed.




                                          22
               TEXAS CODE OF CRIMNAL PROCEDURE ART. 17

    The State also violated TCCP Art. 17.033, 17.15, and§ 13 of the Texas

Constitution when the Appellant was brought before the magistrate. These violations

added to the compelling forces against the Appellant to make a statement against

himself and therefore Appellant's statement given on November 26'h, 2013 was

involuntary and should be suppressed.

                                           I.

    Texas Code of Criminal Procedure Article 17.033(b) dictates that a person

arrested without a warrant for an alleged felony whom has not been taken before a

magistrate must be released on bond, in an amount not to exceed $1 0,000 within 48

hours of their arrest. Furthermore, the Article 17.033(b) states that if the person

cannot obtain a surety for the bond or is unable to deposit money in the amount of

the bond then they must be released on a personal bond. This Article of the TCCP is

the one of the mechanisms to ensure a person's Fourth Amendment rights under the

U.S. Constitution and Section 9 of the Texas Constitution to be free from

unreasonable seizures of the person.

    Appellant was arrested at 9 p.m. on November 20'\ 2013 at his home and

without a warrant. Appellant was not taken before a magistrate within the required

48 hours. No application was filed by the State under Article 17 .033( c). Therefore,

Appellant should have been released on November 22"d, 2013 at 9 p.m. on $10,000


                                           23
bail or a personal recognizance bond if the Appellant could not afford $10,000 bail.

Appellant was not released on the evening of November 22"d at 9 p.m. and therefore

his continued detention was unreasonable. The magistrate had the opportunity to

correct this violation by setting Appellant's bond at $10,000 or a personal

recognizance bond when the Appellant was brought before the magistrate on

November 23rd, 2013. However, this was not the case and the magistrate ignored her

violations of the TCCP and improperly set Appellant's bail at $200,000.

    On November 25th, 2013 the magistrate attempts to paper over this violation of

TCCP Art. 17.033, of not releasing Appellant, by issuing an untimely arrest warrant

for Appellant on November 25th. (Included in Appellant's Appendix). The Justice of

the Peace Precinct One stamp on this document is directly over the date it was signed

by the magistrate. The magistrate in this case had several opportunities to correct the

violations of the TCCP but instead of correcting them she issued an untimely arrest

warrant in an attempt to retroactively correct her mistakes. The issuance of this

warrant after the fact is evidence that the State had knowledge and intent to violate

the Texas Code of Criminal Procedure and thus violate Appellant's Constitutional

rights.

    Appellant's statement was given on November 26th, 2013, four days after he

should have been released from custody on a $10,000 bail or a personal recognizance

bond. If Appellant was released when he should have been, as specified by the TCCP


                                          24
                                                                                  1
Art. 17.033(b), then he would not have been in State custody on November 26 h,

20 13 and would likely not have made a statement against himself if not compelled by

his improper detention. Because Appellant's statement was given under improper

State compulsion, affected by an illegal detention, it should be suppressed.

                                          II.

    Section thirteen of Texas Constitution states in pertinent part, "Excessive bail

shall not be required ... ". Texas Code of Criminal Procedure Article 17.15 lists the

factors to be considered when setting the amount of bail. Article 17.15 states:

                     RULES FOR FIXING AMOUNT OF BAIL
             The amount of bail to be required in any case is to be
             regulated by the court, judge, magistrate or officer taking
             the bail; they are to be governed in the exercise of this
             discretion by the Constitution and by the following rules:
                      I. The bail shall be sufficiently high to give
             reasonable assurance that the undertaking will be complied
             with.
                     2. The power to require bail is not to be so used as
             to make it an instrument of oppression.
                     3. The nature of the offense and the circumstances
             under which it was committed are to be considered.
                     4. The ability to make bail is to be regarded, and
             proof may be taken upon this point.
                     5. The future safety of a victim of the alleged
             offense and the community shall be considered.


      Article 17.15 is the exclusive State guideline for setting a Constitutional bail

amount for a criminal defendant in the State of Texas and it is within this framework


                                          25
that the magistrate must exercise their discretion and not set an arbitrary bail amount.

Please consider the bail amount of Appellant in light of Texas Court of Criminal

Appeals case Ludwig v. State, where a capital murder suspect had his bail reduced

from one million to a reasonable amount of fifty thousand .Ludwig v. State, 812 S. W.

2d 323, at 325 (Texas Cr. App. 1991 ). Compelling a defendant to give a statement

against himself by setting an excessive bail is strictly prohibited by the Article

17 .15(2).

      Article 17.15 defines two legitimate state interests to be considered when

setting a defendant's bail. First, that bail should be sufficiently high to give

reasonable assurance that the undertaking will be complied with. Second, consider

the future safety of the victim of the crime. In setting the bail amount for reasonable

assurance of compliance factors considered are: the defendant's ties to the

community, the defendant's resources that he may pose a flight risk, and previous

behavior of defendant on bail. Defendant had strong ties to the community which

included the Appellant residing in the community for most of his life, his mother and

father still lived in the community, and Appellant lived in a home owned by his

father located in the community. The defendant's resources that indicate he may be a

flight risk were proven non-existent by review of Appellant's affidavit of income

given when requesting attorney. (CR, 2). Appellant had a history of felony DUis in

the ten years preceding 2013. In 2003 Appellant pled for 2 years to a felony DUI


                                            26
and made all appearances. In 2006 Appellant had another felony DUI charge and in

this case Appellant went off his bond and was located within a week and placed in

custody. From review of the record it appears that Appellant was given a $10,000

bond after his arrest and he made all appeared for the rest of the proceedings.

      The victim in this case was a Furniture store which had furniture stolen from

their warehouse. The only violent crime found on Appellant's record is a robbery

charge from 1994 when Appellant was twenty years old. There is no evidence that

Appellant posed an additional danger to the victims in this case. This was strictly a

property crime and level of danger to the victim seems minimal when considered

side by side with Ludwig where a capital murder suspect had his bail set at $50,000.

Next to be considered is the circumstances of the crime. The facts in this case

establish an ordinary property theft where the Defendant went to a warehouse at

night to steal furniture while no employees were present. This crime is lacking in the

horrific details that are present in so many crimes against persons and which make a

crime more heinous and of a higher degree.

      Another consideration is the Appellant's ability to make bail. From review of

Appellant's affidavit it appears that he would have little ability to make any bail

amount. (CR, 2). In the instant case the Appellant had his bond amount lowered to

$50,000 on December 191h, 2013 by agreement ofthe State's attorney and

Appellant's attorney. On March 51h, 2014 a capias was issued and Appellant was


                                           27
arrested and his bond amount was increased to $60,000. Appellant could not make

the $200,000 bail but was able to post bail in the amounts of $50,000 and $60,000.

      Appellant posed the same risk to the community on December 20th, 2013 after

making his $50,000 bond as he did when he originally had his bail set at $200,000 on

November 23rd, 2013. Even though Appellant was rearrested on March 5t\ 2014 the

bail amount of$60,000 was reasonably high to secure Appellant's attendance at the

rest of the proceedings. Appellant argues that bail in this case should have been

reasonably set initially at a maximum of $60,000 when Appellant appeared before

the magistrate on November 23rd, 2013. There is a $140,000 difference between the

original bail set for Appellant and the $60,000 amount considered reasonable on

December 17th, 2013. What factors were considered and determinative to the State

to set Appellant's initial bail at an amount in excess of three times an amount

determined reasonable by State's Attorney less than a month later?

      The final consideration of Article 17.15 when setting the bail amount of a

defendant is that the power to require bail is not to be used as an instrument of

oppression. TCCP 17.15(2). At the time Appellant was arrested only a portion of the

reported stolen furniture was recovered from Appellant's home and his mother's

home. At the time of his arrest on November 201h, 2013 there were co-defendants that

had not yet been identified. Appellant argues that his bond was set excessively high

as an instrument of oppression against Appellant so that he would provide


                                          28
information to detectives and make a statement against himself. This is directly

contrary to the mandate of Article 17 .15(2) that bail may not be used as an

instrument of oppression. It is not a legitimate state interest to use bail to influence a

defendant to make a statement against himself.

      There is some evidence of this improper State motive to compel a confession

from Appellant as evidenced by statements of investigating officers and State's

position on bail amount. The highest bail amount ever set for Appellant in his

previous contact with the criminal justice system was $20,000 for a third degree

felony DUI. Appellant was taken before the magistrate on November 23rd, 2013 and

his bail was set at $200,000. Review of the information filed against Appellant

indicates the State initially had intentions of requesting a bail amount of$125,000,

but this amount is struck through with $200,000 written above it. (CR, 7).There is no

record of justification given by magistrate for the bail amount of $200,000.

      Appellant was taken to the Sheriffs Office across the street from the jail on

November 26th, 2013 for interrogation while in custody under the bail amount of

$200,000. At this interrogation the amount of the bail is clearly on Appellant's mind

and he addresses the amount of $200,000 with the interrogation officer Ibarra. (SE

87, t- 26:50). Ibarra's response to Appellant's statement is.   '~ell   me why you have

that (high bail amount) ... there is more than this than you are telling me." (SE 87, t-

26:50). This is the first statement by the State that gives the inference that a portion


                                            29
of Appellant's bail amount is intended to pressure him into making a statement

against himself or other co-defendants. Appellant is uncooperative in the first half of

the interview and gives a statement that does not inculpate himself.

      The lead investigating officer, Deputy Mellas, enters the interrogation room at

about 35 minutes into the interrogation. There is a brief argument between Deputy

Mellas and Appellant over the probable cause affidavit taken from Appellant that

was previously given to Appellant by Deputy Mellas by mistake. At time 36:20 in

the interrogation Deputy Mellas confronts Appellant that he is not going to be

cooperative and that he already has witnesses against him. Deputy Mellas then states

to Appellant," [Y]our not going to admit to that .... you are not here by mistake ....

your bond is not set by ... your $200,000 bond is not set by mistake ... so you're not

helping yourself by telling me you are trying ... either you will or you won't". (SE

87, t- 36:30- 37:00). This statement by Deputy Mellas also gives the inference that a

portion of Appellant's bond was set to compel him to make a statement against

himself or co-defendants. The Appellant could also reasonably infer form this

statement that his bail amount was set to compel a statement from him and that if he

does not make a statement then the bail amount will remain $200,000.

      Finally, the State's Attorney agreed to a bail amount reduction to $50,000 on

December l7 1h, 2013. A month after requesting an initial bail amount of$200,000 the

State's Attorney agreed for bail to be reduced to just twenty five percent of the


                                           30
original amount, being $50,000. There is no indication of what circumstances

changed to prompt the State's agreement to this lower amount. All of the

considerations under TCCP 17.15 for assessing bail seem to be identical on

December 191h, 2013 and November 23 rd, 20 13. The only circumstance that had

changed between these dates was that Appellant had made a statement against

himself on November 261h, 2013 while in custody on $200,000 bail and Appellant's

defense counsel was now actively participating in the case.

      These statements and circumstances indicate an improper ulterior State motive

in setting the bail amount of Appellant being that to compel a confession against

himself. This is an improper State motive in setting bail and is explicitly prohibited

by Article 17 .15(2) of TCCP. Additionally, if bail is set excessively high contrary to

Article 17.15 then Appellant's right to be free from excessive bail has been violated

as guaranteed to Appellant by Section 13 Texas Constitution. Bail in the amount of

$200,000 was an abuse of discretion by the magistrate and the statement given by

Appellant while under the compulsion of this oppressive bail amount was

involuntary. Therefore, Appellant's statement should be suppressed as given under

taint of improper State compulsion.




                                          31
                                       CONCLUSION

      Considered individually each State violation of Texas Code of Criminal

Procedure had a compelling influence on Appellant to make a statement against

himself. It is under the influence of these violations that the Appellant made his

statement on November 261h, 2013. The Miranda warning given to Appellant prior to

him making a statement was insufficient to address State compulsion upon Appellant

caused by State violations of the Texas Code of Criminal Procedure. Therefore,

Appellant's waiver of his rights after read the Miranda warning was ineffective and

Appellant's statement was not voluntarily given and should be suppressed.

      The totality of the circumstance surrounding Appellant's statement evidence a

compelling interrogation environment orchestrated by State violations of the Texas

Code of Criminal Procedure, and that goes beyond permissible State compulsion

anticipated by Miranda. As stated in Bram v. U.S. the rule is not whether the

communication is voluntary but it must be that the making of the statement was

voluntary. The Appellant was involuntarily compelled to make a statement against

himself and but for this improper State compulsion the Appellant would have

remained silent.

      For the foregoing reasons Appellant humbly requests that his statement given
                   1
on November 26 \ 2013 be suppressed and inadmissible against Appellant.




                                          32
                                  PRAYER


      WHEREFORE, PREMISES CONSIDERED, Appellant Mark A. Serrano

respectfully requests that this Court REVERSE the judgment of the Trial Co urt

and REMAND to the Trial Court for a new hearing where Appellant' s statement is

suppressed.

                                    Respectfully Submitted,




                                    202 W Beauregard
                                    SanAngelo, Texas 76903
                                    (325) 658-6816
                                    (325) 658-6114- Telecopier


                                    Texas Bar No. 19331800
                                    R l s'~ 700@ gmai I. com


                                    ATTORNEY FOR APPELLANT




                                      33
                  CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of TEX. R. APP. P.

  9.4(i)(2)(B) because it contains 6,650 words, excluding the parts of the brief

  exempted by TEX. R. APP. P. 9.4(i)(l). Pursuant to TEX. R. APP. P.

  9.4(i)(3 ), the undersigned relies on the word count function of the word

  processing program utilized to prepare this brief: Microsoft Word,

  Windows Professional 7.

2. This brief complies with the typeface requirements of TEX. R. APP. P.

  9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because

  this brief has been prepared in a conventional typeface {Times New Roman

  type style) in 14-point font.



                                         IS/ Randol L. Stout
                                         Randol L. Stout
                                         Attorney for Defendant-Appellant
                                         Dated: April 6, 2015




                                    34
                          CERTIFICATE OF SERVICE

       The undersigned hereby certifies th at on this the 8th day of May, 2015, he

 has served b y p e r son a II y d e I i very on counsel for Appe llee, Mr. John

 Best, a true and correct copy of the foregoing instrument in accordance with Texas

 Rule of Appellate Procedure 9.5 .

       A copy of thi s instrument has bee n mailed to Appe llant, Mark A. Serrano,

 on May 81h, 20 l 5 at the Texas Department of Corrections Middleton Unit in

 A bilene, Texas.

Served on the Following Parties:

State 's Attorney - John Best
john.best@co.tom-gree n.tx. us
Office of the 51 51 District
Attorney 124 W. Beauregard
San Angelo, Texas 76903




                                          Ran~~
Appellant- Mark A. Serrano
TDC- Middleton Unit
13055 FM 3522,
Abilene, TX 79601                         Attorney for Appel lant




                                        35
