Jessica Boyett v. State

ACCEPTED
06-15-00023-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/5/2015 12:00:00 AM
DEBBIE AUTREY
CLERK

SIXTH COURT OF APPEALS
FILED IN
6th COURT OF APPEALS
06-15-00023-CR TEXARKANA, TEXAS
10/5/2015 8:51:00 AM
DEBBIE AUTREY
Clerk
Jessica Boyett, Appellant
v.
State of Texas, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
No. 25505

Appellant's Brief

Kristin R. Brown
18208 Preston Road, Ste. D9375
Dallas, Texas 75252
Phone: 214-466-3909
Fax: 214-481-4868
kbrown@idefenddfw.com
Texas Bar No. 24081458
Attorney for Appellant

If the Court's decisional process will be significantly
aided by oral orgument, oral argument is requested
I. Identities of Parties and Counsel

Jessica Boyett, Appellant.

Kristin R. Brown, attorney for Appellant on appeal

Don Halsam, attorney for Appellant at trial

State of Texas, Appellee.

Gary Young, Lamar County District Attorney

Laurie Pollard, Lamar County Assistant District Attorney

Hon. Will Biard, Presiding Judge, 6th Judicial District Court, Lamar County

2
II. Table of Contents

I. Identities of Parties and Counsel ..................................................................... 2
II. Table of Contents ............................................................................................ 3
III. Index of Authorities ......................................................................................... 5
IV. Statement of the Case and Jurisdiction .......................................................... 10
V. Statement Regarding Oral Argument ............................................................ 12
VI. Issues Presented ............................................................................................. 13
VII. Facts................................ ............................................................................... 14
1. Evidence presented at the hearing on the motion to suppress ...................... 14
2. Evidence presented to prove guilt ................................................................ 21
VIII. Summary of the Arguments ........................................................................... 22
IX. Argument ....................................................................................................... 23
1. Issue One: The trial court erred when it denied Appellant's
motion to suppress evidence because the evidence was illegally
obtained as a result of an unreasonable seizure of Appellant
without a warrant and without reasonable suspicion that he had
been or would soon be engaging in criminal activity, including
for any offense under Texas Transportation Code § 545.060 ...................... 23
i. Introduction ............................................................................................ 23
ii. Standard of review .................................................................................. 26
iii. Law regarding investigative detentions .................................................. 26
iv. There was no justification for the stop of Appellant under
the Transportation Code, and this alone should cause this
court to reverse and remand this case back to the trial court.................. 30
v. The information about pseudoephedrine purchases did not
amount to reasonable suspicion to initiate a Terry
investigative detention ............................................................................ 33
vi. There was no justification for the search of Appellant's
vehicle and his arrest .............................................................................. 3 5
vii. Conclusion .............................................................................................. 43
2. Issue Two: The trial court erred when it denied Appellant's
motion to suppress his recorded statement because: ( 1) it was

3
 given in response to custodial interrogation by the police; (2) it
was obtained as a result of his illegal arrest; and (3) it was not
shown to be freely and voluntarily made without compulsion or
persuasion as required by Texas Code of Criminal Procedure
Article 3 8.21 ................................................................................................. 44
i. The confession was tainted by the unlawful arrest ................................. 44
ii. The confession was coerced ................................................................... 45
iii. Conclusion .............................................................................................. 50
3. Issue Three: The judicial confession offered in support of
Appellant's plea of guilty was insufficient to show guilt of
criminal conspiracy, which is required by Texas Code of
Criminal Procedure Arti c1e 1. 15 . .................................................................. 50
i. Argument ................................................................................................ 50
ii. Conclusion .............................................................................................. 55
X. Conclusion and Prayer ................................................................................... 55
XI. Certificate of Service ..................................................................................... 56
XII. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................ 56

4
III. Index of Authorities

Cases
Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) .................... 45, 50
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) ............................ 39
Arizona v. Fulminante, 499 U.S. 279, 287 (1991) .................................................. 47
Arizona v. Johnson, 555 U.S. 323, 333 (2009) ....................................................... 42
Aviles v. State, 23 S.W.3d 74, 77 (Tex. App. Houston [14th
Dist.] 2000, no pet.) ...................................................................................... 33
Baggett v. State, 342 S. W.3d 172, 175 (Tex. App. Texarkana
2011) ............................................................................................................. 52
Balentine v. State, 71 S. W .3d 763, 768 (Tex. Crim. App. 2002) ........................... 29
Bender v. State, 758 S. W.2d 278 (Tex. Crim. App. 1988) ..................................... 55
Blackburn v. Alabama, 361U.S.199, 206 (1966) .................................................. 48
Brown v. Mississippi, 297 U.S. 278 (1936) ............................................................ 47
Brown v. State, 605 S. W.2d 572, 577 (Tex. Crim. App. 1980) .............................. 44
Brown v. Texas, 443 U.S. 47, 48-49 (1979) ............................................................ 27
Byrd v. State, 187 S. W.3d 436, 441 (Tex. Crim. App. 2005) ................................. 26
Byrd v. State, 336 S. W.3d 242, 254 (Tex. Crim. App. 2011) ................................. 55
Cada v. State, 334 S. W.3d 766, 772-773 (Tex. Crim. App.
2011) ............................................................................................................. 55
California v. Hodari D., 499 U.S. 621, 627-628 (1991) ......................................... 27
Cantu v. State, 817 S. W.2d 74, 77 (Tex. Crim. App. 1991) ................................... 46
Ca"oll v. State, 139 S.W.2d 821, 823 (Tex. Crim. App. 1940) ............................. 26
Collins v. State, 352 S.W.2d 841, 843 (Tex. Crim. App. 1961) ....................... 46, 47
Connorv. State, 773S.W.2d13, 13-14 (Tex. Crim. App.1989) ........................... 43
Cooper v. State, 537 S. W.2d 940, 943 (Tex. Crim. App. 1976) ............................. 51
Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ................................ 40
Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App.
Dallas 2009, no pet.) ..................................................................................... 25
Dancy v. State, 728 S. W.2d 772, 772 (Tex. Crim. App. 1987) .............................. 46

5
Davenport v. State, 299 S.W.3d 859, 861 (Tex. App. Eastland
2009, no pet.) ................................................................................................ 34
Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) ............................... 40
Delafuente v. State, 414 S.W.3d 173, 177, 178 (Tex. Crim.
App. 20 13).................................................................................................... 2 9
Delao v. State, 235 S. W.3d 235, 239 (Tex. Crim. App. 2007) ............................... 45
Dinnery v. State, 592 S.W.2d 343, 348 (Tex. Crim. App. 1979) ............................ 54
Duran v. State, 552 S.W.2d 840, 842-843 (Tex. Crim. App.
1977) ............................................................................................................. 52
Escobedo v. Illinois, 378 U.S. 478 (1964) .............................................................. 43
Farmah v. State, 883 S.W.2d 674, 679 (Tex. Crim. App. 1994) ............................ 44
Farr v. State, 519 S. W.2d 876, 880 (Tex. Crim. App. 1975) ................................. 49
Ford v. State, 158 S. W .3d 488, 492 (Tex. Crim. App. 2005) ................................. 29
Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) .............................. 29
Freeman v. State, 62 S.W.3d 883, 888 (Tex. App. Texarkana
2001, pet. ref.) ............................................................................................... 36
Garcia v. State, 43 S. W.3d 527, 530 (Tex. Crim. App. 2001) ............................... 29
Garcia v. State, 829 S. W .2d 830, 833 (Tex. App. Dallas 1992,
no pet. ) .......................................................................................................... 49
Gentry v. State, 770 S. W.2d 780, 789 (Tex. Crim. App. 1988) .............................. 49
Golemon v. State, 247 S.W.2d 119, 121 (Tex. Crim. App. 1952) .......................... 47
Gonzales v. State, 966 S.W.2d 521, 523 (Tex. Crim. App. 1998) .......................... 23
Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012) .............................. 27
Hardesty v. State, 661S.W.2d130, 134 (Tex. Crim. App. 1984) .......................... 48
Jackson v. Denno, 378 U.S. 368, 376 (1964) ......................................................... 48
Johnson v. State, 365 S.W.3d 484, 489 (Tex. App. Tyler 2012,
no pet.) .......................................................................................................... 32
Joseph v. State, 309 S. W.3d 20, 24 (Tex. Crim. App. 2010) .................................. 45
Kraftv. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988) ................................ 23
Krulewitch v. United States, 336 U.S. 440 (1949) .................................................. 26

6
Landon v. State, 222 S. W.3d 75, 79 (Tex. App. Tyler 2006, no
pet.) ............................................................................................................... 52
Lev. State, 463 S.W.3d 872 (Tex. Crim. App. 2015) ............................................. 44
Leming v. State, 454 S.W.3d 78 (Tex. App. Texarkana 2014,
pet. granted) .................................................................................................. 32
Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App.
2011) ............................................................................................................. 45
Lopez v. State, 223 S.W.3d 408, 415 (Tex. App. Amarillo 2006,
no pet.) .......................................................................................................... 36
Lopez v. State, 708 S.W.2d 446, 448-449 (Tex. Crim. App.
1986) ............................................................................................................. 52
Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) .......................... 48
Mendez v. State, 56 S.W.3d 880, 891 (Tex. App. Austin 2001,
no pet.) .......................................................................................................... 43
Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) ........................... 51, 52
Menefee v. State, No. 12-07-00001-CR, 2010 Tex. App. LEXIS
6665, 2010 WL 3247816 (Tex. App. Tyler Aug. 18,
2010, no pet.) (mem. op., not designated for publication) ........................... 52
Miller v. Fenton, 474 U.S. 104, 109 (1985) ............................................................ 47
Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth
199 8, no pet. ) ................................................................................................ 42
Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App.
2008) ............................................................................................................. 48
Payne v. Arkansas, 356 U.S. 560, 561 (1958) ........................................................ 48
Prince v. State, 231S.W.2d419, 421 (Tex. Crim. App. 1950) .............................. 47
Reck v. Pate, 367 U.S. 433, 440-441 (1961) ........................................................... 48
Reeves v. State, 969 S.W.2d 471, 485 (Tex. App. Waco 1998,
no pet.) .......................................................................................................... 37
Richardson v. State, S.W.3d, No. 10-14-00217-CR, 2015
Tex. App. LEXIS 7066 (Tex. App. Waco, July 9, 2015)
(designated for publication) .......................................................................... 41
Rodriguez v. United States, 575 U.S. _ , 135 S.Ct. 1609,
1613-1616 (2015) ......................................................................................... 41

7
Rogers v. Richmond, 365 U.S. 534, 540 ( 1961) ..................................................... 48
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990) ............................. 46
Sherman v. State, 532 S. W.2d 634, 636 (Tex. Crim. App. 1976)........................... 49
Sims v. State, 98 S.W.3d 292, 295 (Tex. App. Houston [1st
Dist.] 2003, no pet.) ...................................................................................... 42
Sinegal v. State, 582 S.W.2d 135, 137 (Tex. Crim. App. 1979) ............................. 49
Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App.
1991) ............................................................................................................. 48
State v. Alderete, 314 S.W.3d 469, 473 (Tex. App. El Paso
2010, no pet.) ................................................................................................ 29
State v. Crisp, 74 S.W.3d 474, 481 (Tex. App. Waco 2002, no
pet.) ............................................................................................................... 44
State v. Houghton, 384 S.W.3d 441, 446-447 (Tex. App. Fort
Worth 2012, no pet.) ..................................................................................... 30
State v. James, Nos. 03-07-00210-CR, 03-07-00211-CR, 03-07-
00212-CR, 03-07-00213-CR, 2007 Tex. App. LEXIS
8695, 2007 WL 3225374, at *4 (Tex. App. Austin, Oct.
31, 2007, no pet.) (mem. op.) (not designated for
publication) ................................................................................................... 34
State v. Mendoza, 365 S.W.3d 666, 669-670 (Tex. Crim. App.
2012) ............................................................................................................. 26
State v. Rauch, 586 P.2d 671, 678 (Idaho 1978)..................................................... 43
State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App.
2008) ............................................................................................................. 39
Taylor v. State, 604 S. W.2d 175, 177 (Tex. Crim. App. 1980) .............................. 46
Terry v. Ohio, 392 U.S. 1, 22 ( 1968) ................................................................ 29, 39
Thornton v. State, 601 S.W.2d 340, 342-343 (Tex. Crim. App.
1980) ............................................................................................................. 54
Thornton v. State, 601 S.W.2d 340, 349 (Tex. Crim. App. 1979) .......................... 54
Trevino v. State, 519 S. W.2d 864, 866 (Tex. Crim. App. 1975) ............................ 51
Tullos v. State, 698 S. W .2d 488, 490 (Tex. App. Corpus Christi
1985,pet. ref.) ......................................................................................... 51, 54
United States v. Mendenhall, 446 U.S. 544, 554 (1980) ........................................ 26
8
Valdez v. State, 555 S.W.2d 463, 464 (Tex. Crim. App. 1977) .............................. 51
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) .......................... 26
Vargas v. State, 852 S.W.2d 43, 44 (Tex. App. El Paso 1993,
no pet.) .......................................................................................................... 46
Vicioso v. State, 54 S.W.3d 104, 110, 111 (Tex. App. Waco
2001, no pet.) ................................................................................................ 44
Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) .................... 26, 27, 29
White v. State, 574 S.W.2d 546, 547 (Tex. Crim. App. 1978) ............................... 36
Whren v. United States, 517 U.S. 806, 813 ( 1996) ................................................. 40
Williams v. State, 06-07-00132-CR, 2008 Tex. App. LEXIS
2920 (Tex. App. Texarkana, April 24, 2008, no pet.) (not
designated for publication) ........................................................................... 31
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........................... 51
Statutes
Tex. Code Crim. Proc. Art. 1.15 (2015) ................................................................. 51
Tex. Code Crim. Proc. Art. 38.22 (2013) ............................................................... 45
Tex. Health & Safety Code§ 481.112(a) & (c) (2013) .............................. 10, 11, 53
Tex. Health & Safety Code§ 481.124(b)(3) (2013) ............................................... 38
Tex. Pen. Code§ 15.03(a) (2013) ............................................................... 10, 11, 53
Tex. Transp. Code§ 545.060 (2013) ...................................................................... 30
Rules
Tex. Rule App. Proc. 25.2(a)(2) (2015) ............................................................ 11, 24
Tex. Rule App. Proc. 26.2(a) (2015) ...................................................................... 11
Tex. Rule App. Proc. 39 (2015) .............................................................................. 12
Tex. Rule App. Proc. 9.4 (2015) ............................................................................. 57
Tex. Rule App. Proc. 9.5 (2015) ............................................................................. 56
Tex. Rule Evid. 802(e)(2)(E) .................................................................................. 26
Constitutional Provisions
Tex. Const. Art. 1, § 19 ........................................................................................... 46
U.S. Const. Amend. IV ........................................................................................... 39

9
To the Honorable Justices of the Court of Appeals:

Appellant Jessica Boyett submits this Brief in support of the appeal:

IV. Statement of the Case and Jurisdiction

This is an appeal of a Judgment of Conviction by Court ("Judgmenf') and

sentence for Conspiracy to Manufacture or Deliver a Controlled Substance in

Penalty Group 1 under cause number 25505, in which Appellant was sentenced to

five years in prison, probated for three years, and fined $500.00. (CR, 188-189).1

On November 14, 2013, a grand jury indicted Appellant, alleging that on or about

September 24, 2013, in Lamar County, Texas, Appellant intentionally

manufactured a controlled substance (methamphetamine) in an amount of more

than one gram but less than four grams, and in doing so, Appellant agreed with

Rodney Boyett that they would engage in conduct that would constitute this

offense, perform an overt act in pursuance to the agreement, which was possessing

or transporting a chemical substance, specifically liquid HEET and peroxide. See

Tex. Health & Safety Code § 481.112(a) & (c) (2013); Tex. Pen. Code § 15.03(a)

(2013).

Initially, Appellant pleaded "not guilty. (RR, 6). After a jury was selected

and impaneled, the trial court heard Appellant's motion to suppress evidence that

1
The record on appeal consists of the Clerk's Record, is cited by "CR" followed by the page
number, and one volume of the reporter's record, which is cited as "RR" followed by the page
number.

IO
had been filed on April 22, 2014, more than nine months earlier. (CR, 73-75). On

February 3, 2015, the morning that the jury trial was set to begin, the trial court

denied the motion. (CR, 170).

Under a plea agreement, Appellant pleaded guilty to Conspiracy to

Manufacture or Deliver a Controlled Substance in Penalty Group 1, and was

sentenced to five years in prison, probated for three years, and fined $500.00. (CR,

188-189). Tex. Health & Safety Code§ 481.112(a) & (c) (2013); Tex. Pen. Code

§ 15.03(a) (2013).

On February 4, 2015, Appellant filed a timely notice of appeal. (CR, 188).

See Tex. Rule App. Proc. 26.2(a) (2015). The trial court signed a Certification of

Appellant's Right of Appeal, certifying that although Appellant has no right to

appeal, he may appeal the trial court's ruling on the motion to suppress and "all

other pretrial motions." (CR, 183). See Tex. Rule App. Proc. 25.2(a)(2) (2015).

As a result, this Court has jurisdiction over this appeal.

11
V. Statement Regarding Oral Argument

Although Appellant believes the facts and arguments are thoroughly

presented in this Brief, if the Court's decisional process will be significantly aided

by oral argument, Appellant will be honored to present oral argument. See Tex.

Rule App. Proc. 39 (2015).

12
VI. Issues Presented
Issue One: The trial court erred when it denied Appellant's motion to suppress
evidence because the evidence was illegally obtained as a result of an unreasonable
seizure of Appellant without a warrant and without reasonable suspicion that he
had been or would soon be engaging in criminal activity, including for any offense
under Texas Transportation Code § 545.060

Issue Two: The trial court erred when it denied Appellant's motion to suppress her
recorded statement because: ( 1) it was given in response to custodial interrogation
by the police; (2) it was obtained as a result of his illegal arrest; and (3) it was not
shown to be freely and voluntarily made without compulsion or persuasion as
required by Texas Code of Criminal Procedure Article 38.21.

Issue Three: The judicial confession offered in support of Appellant's plea of
guilty was insufficient to show guilt of criminal conspiracy, which is required by
Texas Code of Criminal Procedure Article 1.15.

13
VII. Facts

1. Evidence presented at the hearing on the motion to
suppress
Appellant and her husband Rodney Boyett were suspected by the Paris

police department of engaging in "pill runs," which is described as the purchasing

of pseudoephedrine in small quantities from multiple pharmacies not for medicinal

purposes, but as an ingredient needed to manufacture methamphetamine. (RR, 9-

15). Deputy Sheriff Amis focused his attention on Appellant and Rodney Boyett

based on information he could receive from a computerized pharmacy

pseudoephedrine sales reporting system. (RR, 9-10 ).

On September 24, 2013, Amis requested that Officer Foreman of the Paris

police to assist him in the investigation. (RR, 9) Amis had detected that Appellant

had just purchased a quantity of pseudoephedrine at the CVS pharmacy at 507

Clarksville and he wanted Foreman to try to visually confirm whether Rodney

Boyett would go to a second CVS pharmacy to make a pseudoephedrine purchase

at that pharmacy. (RR, 13-14).

The purchases made prior to September 24, 2013 were deemed suspicious

because Appellant and Rodney Boyett "had the same address on their driver's

license[s] and were buying pills in the Paris area at different pharmacies in a close

time frame." (RR, 12). Further, Foreman believed Appellant and Rodney Boyett

lived in Rattan, Oklahoma and that "[o]ver the last several years it [had been] very

14
common for people involved in methamphetamine production in Oklahoma to

come to the Paris area and buy pills in an attempt to avoid detection by law

enforcement in the area where they live." (RR, 14). Foreman had been involved in

ten to twenty investigations of "pill run" cases over the last several years all

involved Oklahoma residents. (RR, 15). All involved traffic stops. (RR, 59-60).

Appellant, Rodney Boyett, and their vehicle were located by Foreman at the

Lamar Avenue CVS. (RR, 16-17). Appellant and Rodney Boyett left that CVS and

went in the Home Depot store for ten to twenty minutes. (RR, 16-17). Appellant

and Rodney Boyett then exited Home Depot and went to Walmart. (RR, 19).

Foreman, Amis, and Moore, each traveling in their own unmarked police vehicles,

followed Appellant and Rodney Boyett. (RR, 19-20). Appellant and Rodney

Boyett went inside the Walmart for a short while, and then left and traveled "back

toward Oklahoma." (RR, 17-21).

Foreman explained the significance with this activity as follows: Walmart

has a pharmacy that sold pseudoephedrine and sold other items associated with the

manufacture of methamphetamine, such as Coleman camp fuel, liquid Heet, Drano

products, coffee filters, rubber tubing, and peroxide. (RR, 20). Further, Foreman

explained that "[P]ersons usually who come to Paris to buy pseudoephedrine for
I

the illegal purpose of manufacturing methamphetamine make other stops to pick

up the other ingredients." (RR, 20). To Foreman's knowledge, the stops occur at

15
Home Depot, Atwoods, Tractor Supply, Walmart, Walgreens, and CVS. (RR, 20-

21).

Foreman and the other officers followed Appellant and Rodney Boyett after

they headed toward North Main (Highway 271) from the Walmart. (RR, 21). In the

1100 block of the northeast loop, Foreman saw what he characterized as a traffic

violation, failure to maintain a single lane, which he described as a vehicle's left-

side tires crossing over the centerline into the left lane before going back. (RR, 21 ).

Foreman conducted a traffic stop. (RR, 22). He waited to signal Appellant's car to

stop because "there was really heavy traffic ..." (RR, 22 ).

After the vehicles exited from the loop onto North Main, Foreman was able

to "conduct" the stop around 5 :00 p.m. because Appellant and Rodney Boyett had

to stop at a red light (at the intersection of Main and Stone Avenue). (RR, 23, 36).

Foreman made contact with Appellant and Rodney Boyett, which he described as

follows: "I identified myself, explained as to why [they] had been stopped, asked

for identification. I get that identification. I asked [Rodney Boyett] to exit the

vehicle so I can speak with him and began talking to him about his activity for the

day ... [A]sked him if they had purchased pseudoephedrine, where they had

purchased it." (RR, 21-25, 36).

Foreman said that Rodney Boyett told him "they had purchased

pseudoephedrine at Walmart." (RR, 25-26). Foreman believed Appellant was not

16
being truthful because Amis had not received a report of such a sale. (RR, 26).

Foreman's next question was whether Rodey Boyett "used methamphetamine," to

which, according to Foreman, Rodney Boyett replied that he did. (RR, 26).

Foreman then asked Appellant "if he had any ingredients used for the purpose of

manufacturing methamphetamine in the vehicle," and was told "that he (Rodney

Boyett) had liquid heet inside the vehicle." (RR, 26). Foreman clarified that before

getting that response he told Rodney Boyett that the police knew that Appellant

and Rodney Boyett had just purchased pseudoephedrine at different locations in

Paris in a short timeframe, and that he was asking about "toluene, camp fuel, fuel,

Red Devil Lye, liquid heet, peroxide." (RR, 28-29).

Foreman then spoke with Appellant. (RR, 30). She told Foreman that she

did not use methamphetamine or have any ingredients to make methamphetamine.

(RR, 30). Within five minutes after he stopped the vehicle, and without a warrant,

Foreman "went into their vehicle to search... for the ingredients used to

manufacture methamphetamine." (RR, 30-32). Foreman described the search

being based on "probable cause to believe that there was evidence of a crime in the

vehicle." (RR, 32). He did not specify what crime or evidence.

In the passenger compartment of the vehicle, Foreman located two boxes

containing 20 pseudoephedrine tablets each, two bottles of liquid heet, rubber

tubing, and three bottles of hydrogen peroxide. (RR, 33, 65). Foreman seized

17
those items and then placed Appellant and Rodney Boyett under arrest for

"possession of certain chemicals." (RR, 32-34, 65). See Tex. Health & Safety

Code § 481.124(a) (2013). Foreman arranged for the transport of Appellant and

Rodney Boyett to the police department, and seized their vehicle. (RR, 33-34).

Foreman stated that before towing the vehicle, someone would have made an

inventory search of the vehicle. (RR, 34 ).

After she was booked in, Appellant was twice interviewed by Foreman and

Officer Moore in the CID room. (RR, 36-40). Although admitting that she used

methamphetamine, Appellant would not admit to transporting anything with the

intent to manufacture methamphetamine. (RR, 41-42). Appellant was returned to

the booking area where she may have heard Foreman and Moore discussing

whether they should interview Rodney Boyett. (RR, 42-43). According to

Foreman, Appellant then asked if she could speak with the officers a second time

so that she could tell them "the truth." {RR, 43). Foreman claimed he learned "just

a little bit more" because:

"(S)he (Appellant) did indicate that liquid beet was used to
manufacture methamphetamine. She said that she had used
methamphetamine the previous day by shooting it up with a syringe,
that her and Rodney both had used methamphetamine the previous
day after he had gotten off work. They both used with a syringe. . . .
She said that the items found in her vehicle were going to be used for
them to get methamphetamine. . . . She had talked about Rodney
Boyett cooking methamphetamine. It was cooked on a shed on their
property, in relation of their property to Mr. Boyett's father's house,
her use of methamphetamine, I believe, two to three times a week....
18
 She said that she didn't know how to cook, but she had been present
while it was cooked, but that she does not know how to cook it. .. "

(RR, 44-45, 49).

Rodney Boyett was kept at the police department overnight because the

officers wanted to ask him questions, but Rodney Boyett needed sleep and "it had

been a very long day." (RR, 50). Thus, Rodney Boyett was not interrogated until

the following morning. During the interrogation the following morning, Foreman

spoke with Rodney Boyett about his methamphetamine use. (RR, 51 ). Rodney

Boyett showed a needle mark on his arm to Foreman, where he had injected

methamphetamine and advised that he: ( 1) used methamphetamine since age 14;

(2) learned how to produce methamphetamine while working in the construction

business; and (3) had been making methamphetamine in a shed on his property in

Oklahoma using the "red phosphorous method." {RR, 51-52).

Rodney Boyett testified that before the formal interrogation shown on the

recording, Foreman refused to allow him to speak with an attorney and told him

that unless Rodney Boyett told him what he wanted to hear, his vehicle would be

taken from him. (RR, 79-80, 92). Rodney Boyett also stated that recording failed

to include at the end a discussion about whether Rodney Boyett had earned the

return of his vehicle. (RR, 81-82, 94 ). Foreman earlier declared that no promises

or threats were made against Appellant and Rodney Boyett in connection with their

providing information about their crime. (RR, 38, 42, 45, 46, 48, 53, 58, 65-66).
19
With one exception, Foreman was never asked to specifically deny the accusations

in that regard made by Appellant or Rodney Boyett. (RR, 69). Foreman admitted

that he encouraged Rodney Boyett to speak with him without waiting to consult

with an attorney, which could take "a month" or more. (RR, 46).

Rodney Boyett also testified that soon after he arrived at the police

department, Foreman asked him questions about what he or Appellant had planned

to do with the items found in the truck. (RR, 85-86). Although Rodney Boyett was

in custody, no Miranda warning was provided in connection with that questioning.

Rodney Boyett offered Foreman an innocent explanation for his possession of each

of the items. (RR, 95-96). Appellant confirmed these events, adding that the

officers would not allow her to contact her children, make any arrangements for

care of their animals, or make any phone calls. Appellant also stated that Moore

tried to compel her to make an incriminatory statement, testifying that Moore told

her:

"I know what y'all are doing. I know that y'all are cooking drugs. I
know that y'all are meth users, and you're going to tell us this.
Because if you don't, we can tell the Judge and the DA whatever we
want, whatever our imagination can come up with, that's what we'll
tell them. And they won't believe you. They will believe us. We've
been in this for too many years."

(RR, 107). Appellant stated this questioning prompted her to ask for a lawyer, to

which Moore replied, "No, you're going to talk to us first." (RR, 107). Appellant

further stated that Moore told her:
20
 "[Y]ou're looking at going to prison for 10 years, and you're not
going to get to see them step-kids and your family for a long time.
You're going to tell us what we want to know. And if you do this,
then you can go home, and this will all just go away. If you tell us
what we want to know, what we want to hear, then we can talk to the
DA, and it will all just work itself out. There won't be no jail time,
and you get to go home."

(RR, 107-108).

2. Evidence presented to prove guilt
The evidence of guilt came in the form of a written judicial confession in

which Appellant admitted that she had agreed with Rodney Boyett at some point

that they would engage in conduct that would constitute the offense of manufacture

of the controlled substance, methamphetamine, in an amount of one gram or more

but less than four grams, and in pursuance to that agreement performed the overt

act of possessing or transporting a chemical substance, to wit: liquid HEET and

peroxide, with intent to unlawfully manufacture methamphetamine. (CR, 181, 5;

RR, 178).

21
VIII.Summary of the Arguments

Appellant presents the following arguments: First, Appellant will argue that

the trial court erred when it denied Appellant's motion to suppress evidence

because the evidence was illegally obtained as a result of an unreasonable seizure

of Appellant without a warrant and without reasonable suspicion that he had been

or would soon be engaging in criminal activity, including for any offense under

Texas Transportation Code § 545.060. Second, Appellant will argue that the trial

court erred when it denied Appellant's motion to suppress her recorded statement

because: (1) it was given in response to custodial interrogation by the police; (2) it

was obtained as a result of her illegal arrest; and (3) it was not shown to be freely

and voluntarily made without compulsion or persuasion as required by Texas Code

of Criminal Procedure Article 3 8.21. Finally, Appellant will argue that the judicial

confession offered in support of her plea of guilty was insufficient to show guilt of

criminal conspiracy, which is required by Texas Code of Criminal Procedure

Article 1.15.

Appellant will ask this Court to reverse the Judgment and sentence and: ( 1)

find and declare that Appellant's motion to suppress should have been granted; (2)

order that Appellant is entitled to withdraw her plea of guilty, and (3) remand this

case for a new trial.

22
IX. Argument
1. Issue One: The trial court erred when it denied
Appellant's motion to suppress evidence because the
evidence was illegally obtained as a result of an
unreasonable seizure of Appellant without a warrant and
without reasonable suspicion that she had been or would
soon be engaging in criminal activity, including for any
offense under Texas Transportation Code § 545.060.
i. Introduction
The police in this case obtained evidence using tactics that violated

Appellant's rights under the Fourth Amendment and Texas Code of Criminal

Procedure Article 38.23(a). After the trial court denied Appellant's motion to

suppress evidence, Appellant elected to change her plea from not guilty to guilty. If

this ruling was erroneous, then Appellant's plea was involuntary or conditional.

She is thus entitled to have this Court review the correctness of the trial court's

decisions about the admissibility of the evidence. See Gonzales v. State, 966

S.W.2d 521, 523 (Tex. Crim. App. 1998) and Kraft v. State, 762 S.W.2d 612, 615

(Tex. Crim. App. 1988). And if this Court determines that Appellant's objections

to the seized evidence has merit, it should set aside the judgment based on the plea,

and remand the case for a new trial.

The State argued that: ( 1) Appellant was not initially illegally seized when

Rodney Boyett was required by a police officer to stop the vehicle, in which she

was a passenger, along a highway and then detained, and (2) the information

gathered as a result of the seizure and a subsequent warrantless, but ostensibly

23
legal, search of Appellant's vehicle constituted probable cause for a valid

warrantless arrest. The State further argued (and the trial court found) that the

recorded statements obtained from Appellant and Rodney Boyett after they were

arrested were not coerced, but rather free of compulsion, and were not tainted by

police action beforehand. Appellant argues that none of these arguments (and the

trial court's decisions) were supported by facts or legally correct. Appellant thus

requests de novo review of those rulings by this Court. See Tex. Rule App. Proc.

25.2(a)(2)(A) (2015).

The first issue is whether the stop of Appellant's vehicle was based: ( 1) on

observation of a traffic offense, or (2) reasonable suspicion that the occupants were

engaged in other criminal activity. Both of those hypotheses were offered by the

State as a legal basis for a temporary investigative seizure of the occupants.

Another issue is whether the police developed probable cause to believe they

would find evidence of a crime within the vehicle before they searched it without a

warrant. It must also be determined whether any statements made during the

detention (traffic stop) were obtained legally.

Third, this Court must decide whether the recorded statements of Appellant

were improperly compelled by improper threats, deception, or as a result of an

illegal arrest.

24
 Finally, another issue is presented. Appellant was scheduled to be tried

jointly with Rodney Boyett before the same jury. Appellant assumed, however,

that the State would not seek to use the statements the police obtained from

Rodney Boyett as evidence against her. Thus, the admissibility of Rodney Boyett's

statements as to Appellant was not raised in her motion to suppress.

However, this Court might hold those statements were voluntary. If along

with that holding, the Court agrees that this case must be remanded for a new trial

and the State demands both a joint trial and use of Rodney Boyett' s statements to

show the conspiracy, then the issue will arise. It would become appropriate for

examination by this Court. Cuadros-Fernandez v. State, 316 S.W.3d 645, 658

(Tex. App. Dallas 2009, no pet.).

Thus, Appellant suggests that this Court should declare that the trial court

would need to take appropriate actions to prevent any use of such statements as

evidence against Appellant. This is because even assuming that the State will be

able to show there was a conspiracy as alleged, the co-conspirator exception to the

hearsay rule would clearly be inapplicable. Rodney Boyett' s arrest and separation

from Appellant before she made the statements necessarily precluded any further

concerted action between them, so any alleged conspiracy ended upon the

separation. This hearsay exception applies only to statements made during the

existence of the conspiracy and in furtherance of it. Carroll v. State, 139 S.W.2d

25
821, 823 {Tex. Crim. App. 1940); see also Byrd v. State, 187 S.W.3d 436, 441

{Tex. Crim. App. 2005) (discussing Krulewitch v. United States, 336 U.S. 440

(1949) as the starting point for how to apply Tex. Rule Evid. 802(e)(2)(E)).

ii. Standard of review
If the trial court makes express findings of fact, as the court did in this case

(CR, 195), this Court reviews the evidence in the light most favorable to the trial

court's ruling and determines whether the evidence supports the factual findings.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Whether the facts

known to the officer amount to reasonable suspicion is a mixed question of law

and fact, and is reviewed by this Court de novo. State v. Mendoza, 365 S.W.3d

666, 669-670 {Tex. Crim. App. 2012).

iii. Law regarding investigative detentions
There are three types of police-citizen interactions: ( 1) consensual

encounters that do not implicate the Fourth Amendment; (2) investigative

detentions that are Fourth Amendment seizures of limited scope and duration that

must be supported by a reasonable suspicion of criminal activity; and (3) arrests,

which are reasonable only if supported by probable cause. Wade v. State, 422

S.W.3d 661, 667 {Tex. Crim. App. 2013). To determine when a consensual

encounter becomes a detention, under United States v. Mendenhall, 446 U.S. 544,

554 (1980), courts must take into account the totality of the circumstances of the

26
interaction to decide whether a reasonable person would have felt free to ignore the

police officer's request or terminate the consensual encounter. Wade, id. at 667. If

ignoring the request or terminating the encounter is an option, then no Fourth

Amendment seizure has occurred. Id. But, if an officer through force or a show of

authority succeeds in restraining a citizen in his liberty, the encounter is no longer

consensual. California v. Hodari D., 499 U.S. 621, 627-628 (1991). And, the

question of whether the particular facts show that a consensual encounter has

evolved into a detention is a legal issue that is reviewed de novo. Wade, id. at 668.

Nervousness alone does not constitute reasonable suspicion. Hamal v. State,

390 S.W.3d 302, 308 (Tex. Crim. App. 2012). Refusal to cooperate with an officer

during a consensual encounter does not constitute reasonable suspicion. Brown v.

Texas, 443 U.S. 47, 48-49 (1979). And, nervousness combined with a refusal to

cooperate does not form reasonable suspicion. Wade, id. at 668-669.

In Wade, the defendant, an electrician, was spending his lunch hour sitting in

his work truck in the near-empty parking lot of a public boat ramp. Id. at 665. It

was mid-May in Texas, so he had his truck engine running and the air conditioner

on. Id. Two game wardens, who were investigating fishing violations, approached

the defendant's truck to "make sure the occupant was okay." Id. One warden

thought that the truck was "out of place" and "suspicious" because he did not see a

27
boat or any fishing equipment, but had a large box trailer attached with "Wade

Electric" printed on the sides. Id. The area was not a "high crime area." Id.

The defendant rolled his window down and told a warden he was eating

lunch, but the warden thought that was a lie because he did not see any "evidence"

of lunch such as food, wrappers, or a cooler. Id. The defendant said that he lived

"nearby," but his license, turned over on request, showed that he lived 15 miles

away. Id. The defendant explained that he was "looking at purchasing a house

close to the boat ramp," which a warden also considered a lie. Id. The defendant

was "overly nervous." Id. After asking the defendant if he had any weapons or

anything the warden "should be aware of," the defendant asked "why are you

doing this?" Id. The warden ordered the defendant to step out of the vehicle for

the purposes of conducting a pat-down for the safety of the warden. Id. The

defendant then admitted there was a pipe in the truck, and upon a search, a warden

found the pipe and a small amount of methamphetamine. Id. The Court of

Criminal Appeals held that the defendant's statement about the pipe in his truck

was derived from the warden's illegal detention and was "fruit of the poisonous

tree," and therefore that statement could not provide probable cause for searching

the defendant's truck. Id.

Thus, in order to lawfully conduct an investigative detention, an officer must

have reasonable suspicion that an individual is involved in criminal activity.

28
Wade, see above; Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

Reasonable suspicion requires more than a hunch, and it exists only when an

officer has specific, articulable facts that, taken together with reasonable inferences

from those facts, would lead the officer to reasonably conclude that the person

detained is, has been, or soon will be, engaging in criminal activity. Ford v. State,

158 S.W.3d 488, 492 (Tex. Crim. App. 2005), citing Garcia v. State, 43 S.W.3d

527, 530 (Tex. Crim. App. 2001 ). The reasonable-suspicion determination is an

objective one made by considering the totality of the circumstances. Ford, id. at

492-493. The reasonable suspicion test calls for consideration of specific,

articulable facts and reasonable inferences therefrom based on the totality of the

circumstances. Delafuente v. State, 414 S.W.3d 173, 177, 178 (Tex. Crim. App.

2013).

Further, "[A] law enforcement officer may stop and briefly detain a person

for investigative purposes on less information than is constitutionally required for

probable cause to arrest." Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.

2010) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). And, "there is no requirement

that a traffic regulation must be violated in order for an officer to have sufficient

reasonable suspicion to justify a stop of a vehicle." State v. Alderete, 314 S.W.3d

469, 473 (Tex. App. El Paso 2010, no pet.). Rather, an officer may be justified in

stopping a vehicle based upon a reasonable suspicion of "some other criminal

29
offense." Id. See also State v. Houghton, 384 S.W.3d 441, 446-447 (Tex. App.

Fort Worth 2012, no pet.).

iv. There was no justification for the stop of Appellant under the
Transportation Code, and this alone should cause this court to
reverse and remand this case back to the trial court.
The State's initial position was that Foreman could stop the vehicle, in

which Appellant was a passenger, for an observed violation of § 545.060 of the

Texas Transportation Code. § 545.060 requires a vehicle to be driven within the

confines of a single lane and prohibits movement into another lane, if that

movement cannot be made safely. Tex. Transp. Code § 545.060 (2013). The trial

court believed the detective expressed specific, articulable facts to justify the idea

that Rodney Boyett committed the traffic offense when he allegedly "moved out of

his lane [to the left] toward the center of [Loop 286]" in combination with the

detective's testimony that he "was unable to make an immediate traffic stop

because of heavy traffic."

Loop 286 is a four-lane divided highway, with two lanes provided for travel

in each direction. According to Foreman, although Appellant and Rodney Boyett

were traveling in the right-hand lane, he saw (from behind) the driver's side tires at

one point cross "over the center line into the left lane before going back." (RR, 21 ).

Appellant asserted Foreman's description of what he saw was insufficient to fully

describe a violation of § 545.060. The safety of (or danger presented by) the

30
movement of Appellant's vehicle would depend on several factors apart from the

painted line dividing the roadway into lanes, and most particularly the proximity

and location and speed of other vehicles relative to Appellant's vehicle. There was,

however, no testimony concerning those other factors. There was no testimony that

the vehicle swerved (as perhaps opposed to drifted) across the line, that Rodney

Boyett lost control of the vehicle, or threatened any other person or object then on

the road.

The trial court filled in these blanks by inferring there were safety concerns

merely because Foreman testified he decided not to immediately signal Appellant

to pull over because of "heavy traffic." This vague statement did not justify the

inference. The amount of time and distance involved between the purported

offense and the stop was also not addressed. (RR, 22-23).

The trial court apparently believed that the applicable law was found in

Williams v. State, 06-07-00132-CR, 2008 Tex. App. LEXIS 2920 {Tex. App.

Texarkana, April 24, 2008, no pet.) (not designated for publication). However, the

driving observed in Appellant's case was unlike that involved in Williams. In

Williams, the driving was described as "traveling into the lane designated for

oncoming traffic on the left then back toward the right ditch along the right side of

the road." Id. at *4.

31
 Movements out of a lane of traffic, especially on a road having multiple

contiguous lanes for the same direction of travel, are not categorically prohibited

under § 545.060. Such movements may be necessary to avoid roadway obstacles.

In fact, defensive driving often requires such movements. Maintaining the

vehicle's position entirely in a single chosen lane is required only as "nearly as

practical." As recently stated by the State Prosecuting Attorney, "[T]he practicality

requirement of§ 545.060(a) prohibits indiscriminate straddling, aimless weaving,

or capricious lane changing, but it allows departure from the lane for sensible

reasons." State's Brief at 7, filed May 22, 2015 in Cause No. PD-0072-15, Leming

v. State, petition granted from Leming v. State~ 454 S.W.3d 78 (Tex. App.

Texarkana 2014, pet. granted). Without further details about the lack of safety or

practicality in Rodney Boyett's driving, even given the benefit of logical

inferences, Foreman did not describe a violation of § 545.060. Cf Johnson v.

State, 365 S.W.3d 484, 489 (Tex. App. Tyler 2012, no pet.) (lack of safety could

be shown by single, short, slight crossing of center line because officer pointed out

that it "was dark at the time and the road was narrow, highly traveled, and had no

shoulder").

Appellant's case is similar to Leming v. State, 454 S.W.3d 78 (Tex. App.

Texarkana 2014, pet. granted), where this Court opined, "[W]hen one takes the

speed of the traffic and the totality of the circumstances into account, we cannot

32
say that any such encroachment from lane to lane by Leming was done in an

unsafe manner. Therefore, we find the trial court's ruling that the stop was

prompted by the officer's observation of a traffic violation to be unsupported by

the record." Id. at 83. This Court made such finding despite the fact that the

officer "indicated that rather than following Leming as long as he did, he 'would

have liked to stop him way earlier... but the traffic was too heavy'." Id. at 81. See

also Aviles v. State, 23 S.W.3d 74, 77 (Tex. App. Houston [14th Dist.] 2000, no

pet.) (The state must produce evidence that the movement was unsafe or

dangerous).

v. The information about pseudoephedrine purchases d~d not
amount to reasonable suspicion to initiate a Terry investigative
detention
The trial court also erred in finding that Foreman possessed reasonable

suspicion to stop the vehicle to investigate Appellant and Rodney Boyett for

criminal activity under Terry. Foreman never expressed the idea that he could or

should stop the vehicle apart from the traffic offense despite his presumed

understanding of the legal principles involved. Further, all he knew was that

persons who had previously (within a time frame not described) made suspicious

(but not illegal) purchases of pseudoephedrine had again made a small purchase of

pseudoephedrine at one or two CVS pharmacies in Paris, and had also stopped at a

33
Home Depot and a W almart store, where they might have made purchases of items

that might be used in the clandestine manufacture of methamphetamine.

Far too much conjecture was involved for Foreman to conclude that he had

reasonable suspicion or probable cause (as opposed to a hunch) that the occupants

of the vehicle were in possession of contraband or actively preparing to

manufacture methamphetamine. There is a difference between "questionable" or

"unexplained" and a "distinct possibility of criminality." In this regard, in

Davenport v. State, 299 S.W.3d 859, 861 (Tex. App. Eastland 2009, no pet.), the

facts involved a purchase of a large quantity of pseudoephedrine, and the

occupants of the vehicle were reacting to the sight of a police car. To Appellant's

knowledge, no other court has relied on Davenport. And, Appellant purchased 40

pills, which does not constitute a "large quantity." (RR, 33, 65).

In another case, the court of appeals seemed to conclude manufacture of

methamphetamine could be inferred, to the level of probable cause, as the reason

for purchases of "suspiciously large quantities of pseudoephedrine and other

products [generally] associated with the illicit production of methamphetamine."

State v. James, Nos. 03-07-00210-CR, 03-07-00211-CR, 03-07-00212-CR, 03-07-

00213-CR, 2007 Tex. App. LEXIS 8695, 2007 WL 3225374, at *4 (Tex. App.

Austin, Oct. 31, 2007, no pet.) (mem. op.) (not designated for publication). In

James, the defendant appeared to have purchased 10 to 20 boxes (200 to 400 pills)

34
in a short amount of time (unlike Appellant, who purchased 40 pills). Still, James

has no binding effect on this Court.

vi. There was no justification for the search of Appellant's vehicle
and her arrest
Appellant's vehicle was not legally stopped. Other than purportedly

witnessing a violation of the transportation code (which, as Appellant shows

above, did not occur), the only additional information Foreman obtained before

conducting the warrantless search of the vehicle was a statement by Rodney Boyett

that he had used methamphetamine previously. This is not reasonable suspicion

that ripened to probable cause, which is required for the search.

The trial court apparently believed that Rodney was deceptive in failing to

admit a purchase by him of pseudoephedrine at the Lamar Street CVS or in

becoming silent once that accusation was made. (CR, 196-197; ,~ 7 and 13). The

trial court misinterpreted the testimony. Foreman said, "Well, I had advised

[Rodney Boyett] that I knew he and [Appellant] had just purchased

pseudoephedrine at different locations in Paris in a short timeframe." (RR, 28).

Thus, there was no testimony about whether Foreman had information about (or

accused Appellant ot) a purchase of pseudoephedrine at the second CVS store.

Rodney Boyett was under no obligation to even respond to the accusation.

Rodney Boyett' s silence on the matter and his admission that he had used meth in

the past neither proved nor suggested anything. In certain circumstances, deceptive

35
answers to questions normally associated with the traffic may rise to reasonable

suspicion if coupled with other facts. However, Rodney Boyett' s answer pertained

to something unrelated to do with the traffic stop and the validity of the search

depended on probable cause, and not reasonable suspicion. And with the exception

of Rodney Boyett's silence, Foreman learned or observed nothing new during the

stop that would reasonably lead to any heightened suspicion that would justify a

warrantless search. See, e.g., Freeman v. State, 62 S.W.3d 883, 888 (Tex. App.

Texarkana 2001, pet. ref.) (prolonged detention during a traffic stop was deemed

reasonable because the passenger and driver gave inconsistent answers to questions

regarding the use of the rental car, and the officer smelled marijuana in the

vehicle); White v. State, 574 S.W.2d 546, 547 (Tex. Crim. App. 1978) (No

reasonable suspicion merely because the driver was observed driving aimlessly in a

mall parking despite the fact that had been a rash of purse snatchings in the parking

lot); Lopez v. State, 223 S.W.3d 408, 415 (Tex. App. Amarillo 2006, no

pet.) (Reasonable suspicion existed for the further detention of the defendant who

was stopped in a high crime area and the officer observed a plastic baggie in the

crease of the gas cap compartment).

Rodney's admission that he had used methamphetamine at some time in the

past was too tenuous to suggest that any recent purchase of pseudoephedrine was

related to a present intent to manufacture methamphetamine. Yet, that is the only

36
fact that would make the presence of pseudoephedrine punishable as a crime.

Without any evidence of the suspected purpose of the pseudoephedrine purchase,

the officer engaged in a search for "mere evidence." "Mere evidence is evidence

connected with a crime, but does not consist of fruits, instrumentalities, or

contraband." Reeves v. State, 969 S.W.2d 471, 485 (Tex. App. Waco 1998, no

pet.).

Such a search is permissible only upon establishment of a particular set of

circumstances: "(1) that a specific offense has been committed, (2) that the

specifically described property or items that are to be searched for or seized

constitute evidence of that offense or evidence that a particular person committed

that offense, and (3) that the property or items constituting evidence to be searched

for or seized are located at or on the particular person, place or thing to be

searched. " Id. at 483 (emphasis added). Here, there was no evidence that any

specific offense was committed. Nor was there any evidence showing that the

specifically described property or items that are to be searched for or seized

constitute evidence of that offense or evidence that a particular person committed

that offense. "Thus, it appears that the Legislature has adopted more restrictive

rules for searches for 'mere evidence' than those enunciated by the United States

Supreme Court. Under our system of federalism, a state is free as a matter of its

37
own law to impose greater restrictions on police activity than those the Supreme

Court holds to be necessary upon federal constitutional standards." Id. at 484.

Accordingly, to legally justify the search, Foreman needed to articulate why

he thought anything in vehicle driven by Appellant on that day was intended by

them to be used to make methamphetamine. All Foreman knew was that the

persons in the vehicle made two purchases of pseudoephedrine with a possible

purpose of making methamphetamine. Foreman had no evidence or reasonable

belief to conclude that Appellant and Rodney Boyett were actually preparing to

manufacture methamphetamine. One cannot deduce an association with

methamphetamine merely from acquisition or possession of pseudoephedrine.

Thus, Foreman's knowledge and belief is nothing more than a hunch. There was

also no evidence concerning the amount of pseudoephedrine required to make any

given amount of methamphetamine or that a sufficient quantity of pseudoephedrine

was reasonably expected to be located in the vehicle.

This was especially true because Foreman conducted the search, seized the

items, and then placed Appellant and Rodney Boyett under arrest for "possession

of certain chemicals." (RR, 32-34, 65). See Tex. Health & Safety Code §

481.124(b)(3) (2013). This is clearly an illegal arrest because less than three

containers packaged for retail sale and less than 300 tablets of pseudoephedrine

were found in the vehicle. This statute allows probable cause for an arrest if the

38
defendant possesses "in one container, vehicle, or building, phenylacetic acid, or

more than nine grams, three containers packaged for retail sale, or 300 tablets or

capsules of a product containing ephedrine or pseudoephedrine." Id. This evidence

was not present in this case, as only two retail packages containing 20 tablets each

were found in Appellant's vehicle.

"[A] Fourth Amendment Terry detention is not a custodial arrest" for

purposes of Miranda or article 38.22 of the Texas Code of Criminal Procedure."

State v. Sheppard, 271 S.W.3d 281, 289 {Tex. Crim. App. 2008) (citing Terry, 392

U.S. at 30-31). Here, the questioning by Foreman had nothing to do with the traffic

offense. Foreman had no interest in the alleged traffic offense, it was merely used

as basis to try to find out why Appellant and his wife had been making purchases

of pseudoephedrine in Paris. Thus, not only was the stop unreasonable, the

continued detention for an entirely different purpose was also unreasonable. "The

Fourth Amendment to the United States Constitution, made applicable to the States

through the Due Process Clause of the Fourteenth Amendment, states that '[t]he

right of the people to be secure in their persons ... against unreasonable ... seizures,

shall .not be violated."' Amador v. State, 275 S.W.3d 872, 878 {Tex. Crim. App.

2009) (quoting U.S. Const. Amend. IV). A detention becomes unreasonable when

it is not reasonably related in scope to the circumstances which justified the

detention in the first place. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.

39
1997). Seizing someone for a legitimate purpose cannot reasonably encompass

using the detention for an entirely different purpose.

This was the law before Crittenden v. State, 899 S.W.2d 668 {Tex. Crim.

App. 1995), in which the Court of Criminal Appeals appeared to hold that "an

objectively valid traffic stop is not unlawful under [Texas Constitution] Article 1, §

9 merely because the detaining officer had some ulterior motive for making it."

The majority did not expressly adopt Judge Baird's conclusion that the new

"objective standard" would preclude review of the actions committed by the officer

in conducting a stop as well as the reasons behind the traffic stop. 899 S. W .2d at

678 (Baird, J ., dissenting).

And as noted in footnote 6 of Crittenden, there is a reason why the Supreme

Court of the United States had expressed concern over whether objectively valid

police conduct in initiating a stop of a vehicle for a traffic offense would provide a

blanket justification for its use for a further search or seizure. "Bait and switch" is

as equally reprehensible in invasions of privacy as it is in generating sales of goods

or services. Appellant argues that the lack of reasonable suspicion does not

disappear or change or become irrelevant merely because Rodney Boyett

committed a traffic offense (which he did not). Thus, the Supreme Court's decision

in Whren v. United States, 517 U.S. 806, 813 (1996) did no more in the Fourth

Amendment context that Crittenden did in the context of Texas Constitution Art. 1,

40
§ 9. This is clear in the more recent statement by the Supreme Court that "the

tolerable duration of police inquiries in the traffic-stop context is determined by the

seizure's 'mission'- to address the traffic violation that warranted the stop."

Rodriguez v. United States, 515 U.S._, 135 S.Ct. 1609, 1613-1616 (2015).

Recently, the Tenth Court of Appeals addressed a similar situation. See

Richardson v. State,_ S.W.3d, No. 10-14-00217-CR, 2015 Tex. App. LEXIS

7066 (Tex. App. Waco, July 9, 2015) (designated for publication). In Richardson,

believing that the defendant may have attempted to pick up a prostitute or engage

in a drug transaction (although neither the prostitute ever entered the defendant's

vehicle, nor did the officer see any actual drug transaction), the officer stopped the

defendant for "failing to stop at a designated point in the intersection." Id. at *5-6.

Two minutes into the stop, the officers learned that the defendant had no

outstanding warrants, and the defendant told the officers that he had no past drug

charges. Id. at *6. The officers never issued the defendant a citation for the

alleged traffic violation. Id. This is the point where the traffic stop investigation

was fully resolved, and the defendant should have been allowed to leave. Id.,

citing Rodriguez, 135 S.Ct. at 1612-1613 and Kothe v. State, 152 S.W.3d 54, 63-64

(Tex. Crim. App. 2004). However, the defendant was detained for at least an

additional 13 minutes until a drug dog arrived, which alerted to the defendant's

keys and the driver's side door of the defendant's vehicle. Id. at *6-7.

41
 In Appellant's case, Foreman admitted that he made what turned out to be an

illegal traffic stop so that he can "make contact" with Appellant. (RR, 22). Thus,

the evidence, including Appellant's statement that he had previously used

methamphetamine, was obtained by the police illegally, and was gained as a result

must be treated as the fruit of an illegal seizure of Appellant. "[A]fter making a

stop for a traffic violation, an officer may rely on all of the facts ascertained during

the course of his or her contact with the defendant to develop articulable facts that

would justify a continued detention." Sims v. State, 98 S.W.3d 292, 295 (Tex. App.

Houston [1st Dist.] 2003, no pet.); Mohmed v. State, 977 S.W.2d 624, 628 (Tex.

App. Fort Worth 1998, no pet.). But, this assumes that the traffic stop was legal,

and also where something was observed in plain view or smelled. Interrogation not

related to the traffic stop (as in Appellant's case) is a different matter.

Courts have held that an officer may properly ask questions during a routine

traffic stop that are "unrelated to the justification for the traffic stop" provided

there is some other fact supporting the unrelated question. See Arizona v. Johnson,

555 U.S. 323, 333 (2009) (Additional questioning that lead to a patdown search of

a vehicle occupant was supported by that occupant's discussion with officer of

gang affiliation and recent criminal activity). However, this does not mean that an

officer may begin questioning an occupant of a vehicle with questions having no

connection to the traffic offense, not prompted by anything observed before the

42
detention reasonably should have ended. Thus, if unreasonable seizures of persons

are to be prevented, such stops should not be approved under either Terry or

Whren. See, e.g., State v. Rauch, 586 P.2d 671, 678 (Idaho 1978) ("[T]he history

of the criminal law proves that tolerance of shortcut methods in law enforcement

impairs its enduring effectiveness."). Generally, the criminal law prefers "extrinsic

evidence independently secured through skillful investigation" by the officers over

reliance on a defendant's confession. Mendez v. State, 56 S.W.3d 880, 891 (Tex.

App. Austin 2001, no pet.), quoting Connor v. State, 773 S.W.2d 13, 13-14 (Tex.

Crim. App. 1989), quoting Escobedo v. Illinois, 378 U.S. 478 (1964). In

Appellant's case, there was a traffic stop that was clearly pretextual, and the

answers to questions propounded on Appellant and Rodney Boyett could not have

formed the basis of probable cause to search the vehicle.

vii. Conclusion
The trial court erred when it denied Appellant's motion to suppress evidence

because the evidence was illegally obtained as a result of an unreasonable seizure

of Appellant without a warrant and without reasonable suspicion that he had been

or would soon be engaging in criminal activity, including for any offense under

Texas Transportation Code § 545.060. As a result, Appellant asks this Court to

reverse the Judgment and sentence and remand this case back to the trial court for a

new trial.

43
 l. Issue Two: The trial court erred when it denied
Appellant's motion to suppress her recorded statement
because: (1) it was given in response to custodial interrogation by the
police; (2) it was obtained as a result of her illegal arrest; and (3) it
was not shown to be freely and voluntarily made without compulsion
or persuasion as required by Texas Code of Criminal Procedure
Article 38.21.
i. The confession was tainted by the unlawful arrest
Probable cause to search must be legally obtained. See Le v. State, 463

S.W.3d 872 (Tex. Crim. App. 2015), citing Brown v. State, 605 S.W.2d 572, 577

(Tex. Crim. App. 1980). Violations of the Fourth Amendment do not lead to a

valid arrest. And, a confession obtained incident to an unlawful arrest is subject to

suppression. State v. Crisp, 74 S.W.3d 474, 481 (Tex. App. Waco 2002, no pet.)

(the investigative detention contemplated by Terry involves brief questioning of a

truly investigatory nature); Vicioso v. State, 54 S.W.3d 104, 110, 111 (Tex. App.

Waco 2001, no pet.) ("A 'voluntary' confession given after an illegal arrest is

tainted, and, as 'a direct result of the arrest, must be excluded under article

38.23(a) of the Code of Criminal Procedure.").

Appellant's case is not a situation in which officers made some technical

error that invalidated the arrest; rather, there was a lack of probable cause to

support the warrantless arrest. Thus, the arrest was clearly illegal, and the illegality

weighs strongly in favor of suppression of the confession that would not have been

obtained aside from the coercive effect of Appellant's arrest. See Farmah v. State,

883 S.W.2d 674, 679 (Tex. Crim. App. 1994).

44
 ii. The confession was coerced
After she was arrested and in police custody at the station, rather than

remain silent, Appellant chose to answer questions without the benefit of counsel

because she: ( 1) was expressly denied access to counsel; and (2) was threatened

with loss of her children unless she told the officer what the officer wanted to hear,

at which time this would all just go away. These claims were not denied by

Foreman or Moore. The State bears the burden of establishing a knowing,

intelligent, and voluntary waiver of one's rights under Miranda and Article 38.22.

Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011); Joseph v. State,

309 S.W.3d 20, 24 (Tex. Crim. App. 2010); Tex. Code Crim. Proc. Art. 38.22

(2013 ). When considering whether a statement was voluntarily made, a court looks

to the totality of the circumstances surrounding the acquisition of the statement.

Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007).

A confession is involuntary if circumstances show that the defendant's will

was overborne by police coercion. Delao, id. at 240. If the record shows that there

was official, coercive conduct of such a nature that a statement from the defendant

was "unlikely to have been the product of an essentially free and unconstrained

choice by its maker," the defendant's will was overborne. See Alvarado v. State,

912 S.W.2d 199, 211 (Tex. Crim. App. 1995). In a suppression hearing, the trial

court is the sole trier of fact and judge of the credibility of the witnesses and the

45
weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App.1990). The trial court may accept or reject all or any part of a witness's

testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). In

reviewing the trial court's decision, an appellate court does not engage in its own

factual review; it determines only whether the record supports the trial court's

factual findings. Romero, 800 S.W.2d at 543. If the trial court's factual findings are

supported by the record, absent an abuse of discretion, an appellate court does not

disturb the findings. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991);

Dancy v. State, 728 S.W.2d 772, 772 (Tex. Crim. App. 1987). On appellate review,

the Court normally will address only the question of whether the trial court

properly applied the law to the facts. Romero, 800 S.W.2d at 543; Vargas v. State,

852 S.W.2d 43, 44 (Tex. App. El Paso 1993, no pet.).

The Code of Criminal Procedure expressly allows the statement of an

accused to be used against him if it appears that the statement was freely and
voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Arts.

38.21 and 38.22. Apart from the statutory requirements, the admissibility of a

confession is contingent on the accused being accorded "due course of the law of

the land." Tex. Const. Art. 1, § 19; Collins v. State, 352 S. W.2d 841, 843 (Tex.

Crim. App. 1961 ). A confession must not be taken under circumstances

condemned by the decisions of the Supreme Court of the United States as violative

46
of the Due Process Clause of the Fourteenth Amendment. Collins, 352 S.W.2d at

843. If the reviewing court is convinced that a confession is inadmissible as a

matter of law, it must "not hesitate to so hold." Collins, 352 S.W.2d at 843; see

also Golemon v. State, 247 S.W.2d 119, 121 (Tex. Crim. App. 1952) and Prince v.

State, 231 S.W.2d 419, 421 (Tex. Crim. App. 1950).

The Supreme Court of the United States has long held that certain

interrogation techniques, either in isolation or as applied to the umque

characteristics of a particular suspect, are so offensive to a civilized system of

justice that they must be condemned under the due process clause of the Fourteenth

Amendment. Miller v. Fenton, 474 U.S. 104, 109 (1985), citing Brown v.

Mississippi, 297 U.S. 278 ( 1936). Brown held that the use of involuntary

confessions in state proceedings violated Brown's due process rights under the

Fourteenth Amendment. In Brown, the coerciveness of the police tactics was not in

doubt: the confession was exacted by torture or physical violence. 297 U.S. at 281-

282.

Subsequent cases have made clear that a finding of coercion need not

depend upon actual violence by a governmental agent; a credible threat is

sufficient. Arizona v. Fulminante, 499 U.S. 279, 287 (1991). "Coercion can be

mental as well as physical and ... the blood of the accused is not the only hallmark

of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206

47
(1966); Reck v. Pate, 361 U.S. 433, 440-441 (1961); Rogers v. Richmond, 365 U.S.

534, 540 (1961); Payne v. Arkansas, 356 U.S. 560, 561 (1958). In sum, suspects

must be protected from police overreaching. Oursbourn v. State, 259 S.W.3d 159,

170 (Tex. Crim. App. 2008). A defendant is deprived of due process of law if his

conviction is founded, in whole or in part, upon an involuntary confession without

regard to the truth or falsity of the confession, Rogers, 365 U.S. at 543-544, even

though there is ample evidence aside from the confession to support the conviction.

Jackson v. Denno, 378 U.S. 368, 376 (1964).

Along these lines, an inculpatory statement is inadmissible as having been

induced by an improper promise only if: ( 1) the statement was obtained as a result

of the positive promise of a benefit to the defendant, (2) the promise was made or

sanctioned by one in authority, and (3) the promise was of such a character as

would be likely to influence a defendant to speak untruthfully. Martinez v. State,

127 S.W.3d 792, 794 (Tex. Crim. App. 2004); Hardesty v. State, 661 S.W.2d 130,

134 (Tex. Crim. App. 1984). Reviewing court looks to whether the circumstances

of the promise would have made a defendant inclined to admit to a crime he did

not commit. Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991). The

analysis is objective: it is not based on the actual truth or falsity of the information

provided in response, but on the nature on its face of the inducement or

encouragement involved. Martinez, 127 S.W.3d at 794-795.

48
 Thus, when there is uncontradicted evidence that a confession or inculpatory

evidence is obtained by coercion, threats, or fear, such confessions or inculpatory

evidence are inadmissible as a matter of law. Sinegal v. State, 582 S.W.2d 135, 137

{Tex. Crim. App. 1979); Sherman v. State, 532 S.W.2d 634, 636 (Tex. Crim. App.

1976); Farr v. State, 519 S. W.2d 876, 880 (Tex. Crim. App. 1975). Because the

State has the burden to prove the voluntariness of a confession, the State must

satisfactorily negate the defendant's allegations of coercion in order to satisfy its

burden of proof. Gentry v. State, 770 S.W.2d 780, 789 {Tex. Crim. App. 1988);

Farr, 519 S.W.2d at 880; Garcia v. State, 829 S.W.2d 830, 833 {Tex. App. Dallas

1992, no pet.).

In this case, the trial court's conclusion that it did not find Appellant's

testimony that she told Moore prior to her interview that she wanted an attorney to

be "not credible" is not supported by any facts or circumstances. In fact,

Appellant's claims matched the other questionable aspects of the treatment by

Appellant and Rodney Boyett by the police. Contrary to the trial court's

unsupported conclusion, Appellant's claim does not appear exaggerated.

The trial court also found Appellant's claims about her conversation with

Moore and the threats made by the officers shortly before the recorded interview

on September 24, 2013, to be incredible. Yet, the record does not support his

finding. Appellant clearly described a threat (not being able to call or go home, to

49
take care of her kids, unless she says what the officers want) that would make her

decision to give up her right to remain silent "unlikely to have been the product of

an essentially free and unconstrained choice," as spoken of in Alvarado, 912

S.W.2d at 211.

iii. Conclusion
The trial court erred when it denied Appellant's motion to suppress his

recorded statement because: ( 1) it was given in response to custodial interrogation

by the police; (2) it was obtained as a result of his illegal arrest; and (3) it was not

shown to be freely and voluntarily made without compulsion or persuasion as

required by Texas Code of Criminal Procedure Article 38.21. Appellant asks this

Court to reverse the Judgment and sentence and remand this case back to the trial

court for a new trial.

3. Issue Three: The judicial confession offered in support of
Appellant's plea of guilty was insufficient to show guilt of
criminal conspiracy, which is required by Texas Code of
Criminal Procedure Article 1.15.
i. Argument
A reviewing court must "ensure that the evidence presented actually

supports a conclusion that the defendant committed the crime that was charged. If

the evidence establishes precisely what the State has alleged, but the acts that the

State has alleged do not constitute [the charged] criminal offense under the totality

of the circumstances, then that evidence, as a matter of law, cannot support a

50
conviction." Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Further, "[N]o trial court is authorized to render a conviction in a felony case,

consistent with Article 1.15, based upon a plea of guilty 'without sufficient

evidence to support the same."' Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.

App. 2009).

"[S]o long as ... a judicial confession covers all of the elements of the charged

offense, it will suffice to support the guilty plea. However, a stipulation of

evidence or judicial confession that fails to establish every element of the offense

charged will not authorize the trial court to convict." Id. at 13-14; Trevino v. State,

519 S. W.2d 864, 866 (Tex. Crim. App. 1975). A plea of guilty or nolo contendere

constitutes an admission of guilt but does not authorize a conviction. Cooper v.

State, 537 S.W.2d 940, 943 (Tex. Crim. App. 1976). The state must introduce

evidence into the record showing the guilt of the defendant, and the evidence must

be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Art.

1.15 (2015); see Tullos v. State, 698 S.W.2d 488, 490 (Tex. App. Corpus Christi

1985, pet. ref.).

Thus, a conviction is voidable when based on a guilty plea that is not

properly supported by evidence. See also Valdez v. State, 555 S.W.2d 463, 464

(Tex. Crim. App. 1977) (Compliance with Article 1.15 is mandatory for stipulated

evidence to be considered by court) and Duran v. State, 552 S.W.2d 840, 842-843

51
(Tex. Crim. App. 1977) (A conviction must be reversed if the stipulated evidence

does not comply with Article 1.15 and the other evidence presented is insufficient

to support a conviction).

In any guilty plea, Article 1.15 must be complied with, and the "sufficient

evidence" requirement of Article 1.15 is an absolute requirement. See Landon v.

State, 222 S. W.3d 75, 79 (Tex. App. Tyler 2006, no pet.) and Baggett v. State, 342

S.W.3d 172, 175 (Tex. App. Texarkana 2011). In Baggett, this Court found that

the requirements of Article 1.15 " ... [F]alls within the absolute or

systemic requirement category by its requirement that 'in no event' shall a person

be convicted on his or her plea without sufficient evidence to support it." Id. And,

this Court also concluded that "[A] claim of error for noncompliance with it is not

forfeited or waived by the failure to object." Id.; see Lopez v. State, 708 S.W.2d

446, 448-449 (Tex. Crim. App. 1986) (A violation of Article 1.15 is fundamental

error that may be considered for the first time on appeal or discretionary review).

Finally, if no other evidence supports the plea and finding of guilt, "error is

shown." Id.; See also Menefee v. State, No. 12-07-00001-CR, 2010 Tex. App.

LEXIS 6665, 2010 WL 3247816 (Tex. App. Tyler Aug. 18, 2010, no pet.) (mem.

op., not designated for publication), on remand from Menefee v. State, 287 S.W.3d

9 (Tex. Crim. App. 2009).

52
 The State purported to meet the requirements of Article 1.15 in this case by

use of a judicial confession that merely affirmed the truth of the allegations in the

indictment. There was a sworn statement by Appellant that "[a]ll of the facts

alleged in the indictment or information are true and correct" and "I committed and

am guilty of each and every act as alleged therein..." (CR, 181). This presumably

means that there was evidence that Appellant had agreed with Rodney Boyett at

some point that they would engage in conduct at some point that would constitute

the offense of manufacture of the controlled substance, methamphetamine, in an

amount of one gram or more but less than four grams, and in pursuance to that

agreement performed the overt act of possessing or transporting a chemical

substance, to wit: liquid HEET and peroxide, with intent to unlawfully manufacture

methamphetamine. (CR, 5).

Conspiracy to Manufacture or Deliver a Controlled Substance in Penalty

Group 1 is a felony. Tex. Health & Safety Code§ 481.112(a) & (c) (2013). The

elements of the offense charged against Appellant as described in Texas Penal

Code § 15.02(a) are: (1) an agreement between the defendant and one or more

other persons, with the intent that a felony be committed, that they or one or more

of them engage in conduct that would constitute the offense, and (2) he or one or

more of them performs an overt act in pursuance of the agreement. Tex. Pen.

Code§ 15.02(a) (2013) (emphasis supplied).

53
 The statement used to show Appellant's guilt differs from the statutory

elements in that the overt act was stated to have been performed "in pursuance to"

the agreement of the parties. (CR, 5). Perhaps if the statement had read

"performed pursuant to" the agreement, it would have met the requirement of

Article 1.15. However, this is not how it was worded. "Pursuance to" lacks

coherence and meaning. Further, "to" does not have the same meaning or

connotation as "of."

For instance, m Tullos, 698 S.W.2d at 490-491, the court held that a

confession to stabbing was not proof of assault by threat that was alleged in

indictment. In Thornton v. State, 601 S.W.2d 340, 342-343 (Tex. Crim. App.

1980), the court ruled that a confession to forgery by making a false writing did not

support a conviction for forgery by passing a forged writing. And in Dinnery v.

State, 592 S.W.2d 343, 348 (Tex. Crim. App. 1979), the court held that a judicial

confession is insufficient if it incorporates by reference allegations of the

indictment that are inconsistent with the other recitations in the judicial confession.

As a result, the trial court should not have accepted Appellant's plea of

guilty, and in fact was prohibited by law from doing so. "Since the stipulation

offered to meet the requirements of Art. 1.15, V.A.C.C.P., did not properly support

the plea, the trial court should not have accepted the stipulation in evidence."

Thornton v. State, 601 S.W.2d 340, 349 (Tex. Crim. App. 1979) (Dally, J.,

54
dissenting on motion for rehearing); see also Byrd v. State, 336 S.W.3d 242, 254

(Tex. Crim. App. 2011) (since a rose does not smell like a pickle, the two terms are

not interchangeable) and Cada v. State, 334 S. W.3d 766, 772-773 {Tex. Crim.

App. 2011) (precision in terminology is required in making proof). The defect in

proving the overt act was for the purpose of furthering the objective of the

agreement absolutely prevented the court from making a finding of guilt based on

the plea. Appellant is accordingly entitled to have his plea held for naught and to

have the case remanded for a new trial. Bender v. State, 758 S.W.2d 278 {Tex.

Crim. App. 1988) (State's failure to comply with Article 1.15 is trial error).

ii. Conclusion
The judicial confession offered in support of Appellant's plea of guilty was

insufficient to show guilt of criminal conspiracy, which is required by Texas Code

of Criminal Procedure Article 1.15. Appellant asks this court to reverse her plea of

guilty and remand this case back to the trial court for a new trial.

X. Conclusion and Prayer

For the above reasons, Appellant prays that upon appellate review, this

Court reverse the Judgment and sentence and: (1) find and declare that Appellant's

motion to suppress should have been granted; (2) order that Appellant is entitled to

withdraw her plea of guilty, and (3) remand this case for a new trial.

55
 Respectfully submitted,

The Law Office of Kristin R. Brown, PLLC
18208 Preston Road, Ste. D9375
Dallas, Texas 75252
Phone: 214-205-0701
Fax: 214-481-4868

by Kristin R. Brown
kbrown@idefenddfw.com
Texas Bar No. 24081458
Attorney for Appellant

XI. Certificate of Service

I certify that on October 3, 2015 , a true and correct copy of this document
was served on Gary Young and Laurie Pollard of the Lamar County District
Attorney's Office by email to gyoung@co.lamar.tx.us and
lpollard@co.lamar.tx.us. See Tex. Rule App. Proc. 9.5 (2015).

Kristin R. Brown

XII. Certificate of Compliance with Tex. Rule App. Proc. 9.4

This certifies that this document complies with the type-volume limitations
because it is computer-generated and does not exceed 15,000 words. Using the
word-count feature of Microsoft Word, the undersigned certifies that this document
contains 10,306 words in the entire document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix. This document also
56
complies with the typeface requirements because it has been prepared in a
proportionally-spaced typeface using Microsoft Word in 14-point font. See Tex.
Rule App. Proc. 9.4 (2015).

Kristin R. Brown

57