### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00765- CR

Kym Ray P err ucci, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 65,4 53, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A j ury convicted Ky

m Ray Pe rr u cc i o f t he felony offe nse of possession of cocaine in an amount of l ess t han one g ram. Aft er Perruc ci pl ed true to enhanc ement parag raphs alleg ing
two prior felony offe nses, the jury assessed punishment a t six y ear s in pr ison. Perruc ci challeng es his conviction, contending that the trial court err ed by order ing him to pay court appointed attorney ’s fee s without first deter

mining his ability to pay , allowing the prosec ution to discuss the application of par ole l aw to him during his sentencing , deny ing his motion to suppress evidenc e, and de ny ing his reque sted jury instructions. We will modify the judgme nt on the pay ment of the court appointed attorney ’s fe es and a ffirm the judg ment as modified.

BACK GR OUND At a pretria l suppression hearing , the trial court hear d evidenc e that Offic er J osh Moore of the Temple Police Depa rtment stopped Perruc ci’s car in Temple at night for failing
to have a functioning light over the rea r license p l at e and for inching into an intersec tion on ared light. The court also revie wed a patrol-c ar video rec ording of the traff ic stop that broadc ast some audio from M o o re ’s body microphone. Moore rec alled some unusual circ umstances about his interac tion with Perruc ci: he was unable to produce his driver’s lice nse whe n it wa s reque sted, he

asser ted that he was go i n g to a g as station (having just passed one), he appea red nervous, and he

seeme d to be conce aling his rig ht hand. Be cause of Perruc ci’s actions, Moore reque sted consent to

sear ch Perruc ci’s car . Perruc ci ref used. Moore attempted to summon a canine unit to the scene , but

none we re a

vailable.
I n acc ordanc e with police depar tment policy , Moore called h i s s u pervisor seeking permission to make a

n arr est for failure to display a driver’s li cense . He rece ived t hat permissi on and arr ested Perruc ci. Moore estimated that the leng t h o f t i m e fr o m the stop to the arr est was “roug hly twenty minutes.” Be fore beg inning a pat-down sear ch, Moore asked Perruc ci whether he had any thing in his pock et t h at m i g ht poke, stick, or hurt Moore. Perruc ci stated truthfully that he did not. As Moore was placing Perruc ci in the patr o l car , Perruc ci admitted that he had some

n ee d l es containing coca ine underne ath some clothes on the passeng er seat of his car . Moore

1 cautioned the other responding office rs not to g o into Perruc ci’s car beca use of the needle s. Moore donned g loves and proce eded to se arc h the car , wher e he found a sy ring e containing clea

r liquid, a spoon with white residue, and a bag g ie that was later deter mined to contain 0.31 g rams of coca ine. After finding the evidenc e in Perruc ci’s car , Moore talked to Perruc ci about poss i b l y b ec o ming a confide ntial informant. Perruc ci ag ree d to speak with the narc otics division and was transporte d to the Temple Police D epar

tment where he met with nar cotics ag ent Amanda L ocklea r.
Although questions and testimony at the suppression hear ing ref ere nced “nee dles,” the 1 evidenc e admitted at trial consisted of a single sy ring e. The office rs in the patrol car video ref er to additional “cle an nee dles” in the c ar door

. 2Perruc ci also testified at the pretria l suppression hear ing. He acknow ledg ed that he

told Moore about the drugs in t he fr ont seat of the car wit hout any prompting from the officer: “I knew what the office r was afte r, whene ver he came up to my car initially and asked to sear ch it, they know what they ’re looking for, when we’ re—so, y eah I volunteere d that.” Perruc ci asser ted that he made his statement out of c oncer n for the of

fice rs’ saf ety beca use he ha d hepatitis C. The trial court den i ed P err ucci’ s motion to suppress his statement to Moore and the evidenc e of coca ine, and the case proce eded to trial. The jury hear d testimony from three State’s witnesses: Offic er Moore; Mona Her ring , a proper

ty and evidenc e intake tech with the Temple Police Depa

rtment; and Br ian Kivlighn, a forse nsic scientist with the Texas Depa rtment of Public Safety ’s crime lab. Her ring testified about the chain- of-c ustody of t h e evidence that the police depar

tment rec eived and sent to the lab, including the bag g ie, spoon, and sy ring e. Kivlighn confirme d that the substance in the sy ring e wa s coca ine. Perruc ci tes t i fi ed in his own defe nse at trial, admitting that he knowing ly and intentionally possessed the coca ine, that it was on the front passeng er seat of his car , and that he had shot up coca ine ear lier on the day of his arr est. He further testified that he did not know whether his car’ s license- plate lig ht was out, t hat he ha d not produce d his driver’s lice nse fr om the time of his stop until the t ime of hi s arr est, and that his statement about th e co caine-conta ining sy ring e in his car was not made in response to a question from Moore. Perruc ci ag ree d that his statement

was voluntary and denied that his statement was th e re s u l t o f coer cion, threa t, or forc e. Perruc ci also informed the jury that he had been co n v icted in 2004 for the felony offe nses of possession of less than one g ram of her o i n an d p o ssession of Oxy codone and that he had been sentenc ed to fiftee n months in j ail.

3The jury found Perruc ci g uilty of the state jail fel o ny offe nse of possessing less

than one g ram of coca ine, see Tex. Hea lth & Safety Code Ann. §§ 481.102(3)( D), .115(a) , (b) (West 2010), Perruc ci pled true to enh an ce m en t para g raphs alleg ing two prior state jail felony offe nses that made his curr ent offe nse elig ible for punishment as a third-deg ree felony , see Tex. Penal Code Ann. § 12.42(a) (1) (West Supp. 2010), and the jury assessed a six -y ear prison term

as punishment. Following the jury ’s ver dict of g uilt and assessment of punishment, the trial court signe d a judgme nt sentenc ing Perruc ci to six y ear s in prison and order ing him to pay court costs and attorney ’s fe es, if he w ere able. Per rucc i now appea ls.

ANALYSIS
P aym ent of attorney’ s fees

The trial court’s order states “ DEF ENDANT TO P AY COURT CO S T S AND ATTORNEYS F EES , IF ABLE, UP ON RELEAS E F ROM INCARC ERATION .” I n his first issue, Perruc ci contends that the trial court err ed by order ing him to pay $2,253

. 00 for his courtappointed attorney ’s fee s without sufficie nt evidenc e to demonstrate that h e h ad the ability
to pay those fee s. The State ag ree s that the rec ord is si l en t o n an y m ater ial chang e in Perruc ci’s circ umstances since deter mination of his indige ncy and that the proper re m ed y i s to ref orm the judgme nt by

removing the orde r for

pay ment of cour

t-appointed a

ttorney ’s fe es. A trial court may order a defe ndant to pay for his court-a ppointed leg al counsel only if the court deter

mines that the defendant has financ ial resour ces enabling him to pay . Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010). Be cause financ ial resource s and abilit y to pay

are “cr itical elements” under article 26.05(g ) that must be supported by the rec ord, we revie w a

4trial court’s order t h at a defe ndant pay court-a ppointed attorney ’s fee s for sufficie ncy of the evidenc e. Maye r v. State , 309 S.W .3d 552, 556 (Tex. Crim. App. 2010). We me asure sufficie ncy of the evidenc e by viewing all of the rec ord evidenc e in the light most fa vorable to the verdic t. Id

. at 5 57. I f the evidenc e does not support the order to pay attorney ’s fee s, the proper reme dy is t o delete the pay

ment order

from the judg ment. See id. This rec ord does not ref

lect that t h e t ri al court deter mined whether Perruc ci had financ ial resour ces enabling him to pay the costs of his leg al service s. I nstead, the rec ord shows that Perruc ci was aff

orded court-a

ppointed c o u

n s e l f or trial and ag ain on appea l beca use of his indige nce. When a co u rt d et er m i nes that a defe ndant is indige nt, there is a presumption that the defe ndant

rema ins indige nt for the rema inder of the proceeding s in the case “unless a mater ial chang e in the defe ndant’s financ ial circ umstances occur s.” Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010). No materia l chang e in Perruc ci’s financ ial circ umstances is ref ere nced in this rec ord. Thus,

we conclude that the portion of the judgme nt order ing Perruc ci to pay attorney ’s fee s was improper. See M ayer , 309 S.W .3d at 555-56. We sustain Perruc ci’s first issue.

Discussion of p arole law

I n h i s s econd issue, Perruc ci contends that the trial court err ed by allowing the
prosec ution to discuss the applica tion of parole law to him in c losing arg ument during sentenc ing. Whil e i t i s common knowledg e that inmates are often parole d befor e serving their full sentenc es, juries in felony case s are prohibited from considering or apply ing parole law in assessing punishment. Clark v. State , 643 S.W .2d 723, 724-25 (Te x . Crim. App. [ Panel Op.] 1982) (noting that prosec utor’s arg ument went bey ond g ener al urg in g fo r l en g thy penalty and focuse d on fac t that defe ndant previously rec eived 20-y ear sentenc e for conviction but was parole d afte r only
5three y ear s); see also Tex. Code Crim. Proc. Ann. art. 37.07 § (4)( c) (West Supp. 2010) (providing

i n s t ru ction that jury assessing punishment for offense punishable as third-deg ree felony is “not t o consider the manner

in which the par ole law may be applied to this particula r def endant.” ).
I n support of this issue, Perruc ci notes that during his sentenc ing- phase questioning befor e the jury , the prosec utor discu s s ed P err ucci’ s previous fiftee n-month incar cer ation in state j ai l

— n o t i n g t hat it was serve d “day -for -day

. . . y ou don’t parole from state jail.

. . . just do th e straig ht time. Fifte en months means 15 ca l en d [ a]r months to the day ”—and contra sted that with parole -elig ible offe nses by noting that a full sentenc e may not be serve d in prison. The prosec utor then beg an to discuss the cha rg e and e x plained the c oncept of “quar ter time”:

I t say s under law applicable in this case , if the defe ndant is sentenc ed to a term of imprisonment he will not b ecome elig ible for parole until the actua l time serve d plus any g ood conduct tim e earne d equals one-fourth of the s ente n ce imposed. Of course elig ibilit y for parole does not g uara ntee parole will be g rante d and y ou can’ t consider parol e fo r t his defe ndant, but y ou’re allowed to be made awa re of the exis tence of parole and how it applies in g ener al to defe ndants. What does that just mean, one-qua

rter of the sentenc e? I g et a lot of questions. I talk to some jurors afte r trials, and they alway s have the same questions. What does that mean one-qua rter? [Defense counsel]: Objection, Your Honor. I ’d ask him not to make any comments other than w hat the leg islature has a sked us to say about par ole. THE COURT: Sustained. [P rosec utor]: J udg e, I ’m allowed to e x plain the law. THE COURT: Okay

. [P rosec utor]: Parole elig ibilit y , one-qua rter time, that’s what this say s under the law appli ca b le in this case , if the defe ndant is sentenc ed to a term of imprisonment he will not become elig ible for parole until the actua l time serve d plus g ood conduct time i s o n e- fo u rt h of the sentenc e imposed. L ike I said, elig ibilit y for parole does not g uara ntee that parole will be g rante d. Now y ou have hear d here that the rang e is, two to ten y ear s in prison, but we’ re dealing with potential quarte r t i me for parole

. So what does that mean by way of quarte r time? That means if y ou sentenc e him to 6two y ear s well, if a defe ndant, not this defendant , but if a defe ndant is sentence d to

two y ear s in prison, parole could look at him afte r he serve s half a y ear , six months. I f a defe ndant is sentenc ed to say four y ear s in prison, a quarte r of that is a y ear . And not this defendant , but a defe ndant in a case that p ar o l e i s looking at could look at him in that time. Ten y ear s turns into two and a half y ea rs for parole could conce ivably g rant parole for an individual. That’s what quarte r time means. All rig ht. That’s basica lly what they ’re say ing in that lang uag e about the time he won’t become elig ible for parole until the actua l time serve d plus g ood conduct time is one-f ourth of t he sentence imposed. That’s what y ou have in front of y ou. L adies and g entlemen, he did 15 months last time. The way I look at that, that should serve as the f loor beca use he should have learne d from that. He h ad t he opportunit y the first time he was c aug ht on probation to learn not to do this stuff, to avoid it, to ge t the help he ne eds. He had the oppor tunity when he was— [Defense counsel]: Objection, Your Honor. He ’s arguing how the parole law is g oing to be applied to this defenda nt. THE COURT: Over

ruled.
(Emphasis added.) Perruc ci contends that the prosec utor’s arg ument asked the jury to consider the application of parole law to him, particula rly when the prose cu t o r as ked the jury to consider fiftee n months as the “floor” of his sentenc ing r ang e.

The State arg ues that the defe nse’s secon d o b je c ti o n w a s u

n ti me ly a nd not sufficie ntly specific and any err or in the arg ument afte r the trial court sustained the first objection was waived.
Fa ilure to prese rve err or throug h contempora neous objection waives an improper parole -elig ibilit y arg ument. Kelley v. State , 968 S.W .2d 395, 402 (Tex. App.—Ty ler 1998, no pet.) (ruling that err or

was waived for failure to reque st instruction to disreg ard and t o o b j ec t at all when arg ument

rene wed) ; see Tex. R. App. P. 33.1( a). Concluding that the defe nse’s objection prese rved err or on the par ole-e ligibility

arg ument, we turn to Perr ucci’ s second issue. Not ever y mention of parole laws ne cessitates r ever sal. Clark , 643 S.W .2d at 725. The code of criminal proce dure require s that the jury be g iven cer t ai n instructions that include

7information about parole elig ibilit y . Taylor v. State , 233 S.W .3d 356, 359 (Tex. Crim. App. 2007)

(citing Tex. Code Crim. Proc. Ann. art. 37.07 § (4)( a))

. Prosecutors may discuss parole -elig ibilit y fo rm u l as and g ive concr ete examples of their application. Id. (re versing appellate court rul i n g beca use prosecutor’s ex planation of how parole-elig ibilit y rules in jury char g e worked wit h fort y , six ty , and seventy -five y ear sentenc es mere ly ensure d that jury understood their instructions);

see also Taylor v. State , 911 S.W .2d 906, 910-12 (Tex. App.—For t Worth 19 9 5 , pet. ref

’d) (af firming conviction wher e prosec utor us ed poster to show jury how parole -elig ibilit y formula worke d but did not apply formula spe cifica lly to case being tried). Althoug h the prosec utor made brief use of the word “him,” the prosec utor clar ified the g ener ality of his r efe renc e by stating, “not this defe ndant, but a defe ndant.” See Taylor , 233 S.W

. 3 d at 359 (conc luding that “prose cutor’s passing use of the words ‘def endan t ’ an d ‘he’ in the course of g iving his explanation” about jury char g e was insignifica nt, noting that statutory instruction itself uses words “def endant” and “he” when descr ibing rules of parole elig ibilit y ). We conc l u de that the prosec utor’s arg ument was an attempt to explain g ener ally the meaning of the jury instr uctions rathe r than to specific ally apply them to Perrucc i. See id

.

The prosec utor’s arg ument that a fiftee n-month sentenc e should be the “floor” of Perruc ci’s punishment rang e was not pa rt of the examples a

bout qua rter time f or parole elig ibilit y . Even if we were to consider that a rg ument as an imprope r applica tion of parole la

w to Perruc ci, i t

was harmless beca

use fiftee n months is less than two y ear s, the lowest level of Perruc ci’s available punishment rang e. See id. ; see also Tex. Penal Code Ann. § 12.34 (West Supp. 2010); Tex. R. App. P. 44.2(b). We overr

ule Perruc ci’s sec ond issue.

8Motion to supp ress I n his third issu e— briefe d within his complaints about reque sted j u ry instructions—Perrucc i contends that the trial court err ed by deny ing his motion to suppre s s h is statement to police about the needle and the evidenc e of coca ine beca use they we re t h e products of an unrea sonably long detention. The trial court made a finding that “[t] he approximate eig hteen minute delay betwee n the stop of the defe ndant and h i s ar rest for failure to produce a driver’ s license wa s not unreasona ble base d on the surrounding circ umstances.” When revie wing the denial of a motion to suppress, we apply a bifurcated standard, aff ording almost total defe renc e to t he trial court’s determination of historical facts but revie wing de novo a trial court’s application of t he law of search and seizure t o the fa cts. State v. Valt ierra , 310 S.W .3d 442, 447 (Tex. Crim. App. 2010). When, as here , the trial judge makes express finding s of fac t, we view the evidenc e in the light most favor able to the judge ’s ruling and deter mine whether the evidenc e supports the fac tual finding s. Id

. I f the ruling on the motion to suppress is “re asonably
suppo rt ed by the rec ord and is corr ect under any theory of law applicable to the case ,” it will be sustained. Id. at 447-48 (quoting State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)).

The Four th Amendment’s protec tion ag ainst unreasonable sear ches and seizures extends to all seizures of the person, including those that involve only a b rief detention. United States v. Mende nhall , 446 U.S. 544, 551 (1980); see Leach v. State , 35 S.W .3d 232, 235 (Tex. App.—Austin 2000, no pet.); see also U.S. Const. amend. I V. An office r conducts a lawful temporar y detention when he has rea sonable suspicion to believe that a person is violating the law. Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005). I nvestig ative detentions such as traff ic s tops must be temporar y and last no longe r than nece ssary to eff ectua te the purpose of

9the stop. Florida v. Roye r , 460 U.S. 491, 500 (1983); Kothe v. State , 152 S.W .3d 54, 63 (Tex. Crim.

App. 2004). The Supreme Court has reje cted rig id time limit ations on investiga tive detentions, instead asking “whe ther the police diligently pursued a means of investigat i o n that was likely to confirm or dispel their suspicions qu i ckly , during which time it was nece ssary to detain the defe ndant.” Kothe , 152 S.W .3d at 64-65 & n .41 (quoting United States v. Sharpe , 470 U.S. 675, 685-86 (1985) (re fusing to “esta blish a per se rule that a 20-minute detention i s t o o l o ng ”))

. An office r who has conclude d an investiga tion of th e co n d u ct that initiated the stop may continue to detain a person only if there is rea sonable suspicion to believe that another offe nse has been or is being committed. Davis v. State , 947 S.W .2d 240, 245 (Tex. Crim. App. 1997).

Whether reasonable suspicion exis ts is deter mined b y considering the facts known
to the office r at the t i m e o f t h e detention. See Terry v. Ohio , 392 U.S. 1, 21-22 (1968); Davis , 947 S.W .2d at 243. Reasonable suspicion exis ts if the office r has specific , articula ble fac ts that, when combined with rational inferenc es from tho s e fac ts, would lead him to rea sonably conclude that the person detained is, has been, or soon will be engaged in criminal activity

. Derichsweiler

v. State , No. PD-0176-10, 2011 Tex. Crim. App. L EXI S 112, at *16 (Tex

. Crim. App. J an. 26, 2011); Ford , 158 S.W .3d at 492; see also Terry , 392 U.S. at 21-22. This is an objective standard, applied by considering the totality of the circ umst an ces. Derichsweiler , 2011 Tex. Crim. App.
L EXI S at *16. Perruc ci contends that he was led to state that he had a needle containing coca ine in his car beca

use of his unrea sonably long detention. Howeve r, police office rs on a routine traff ic stop
may conduct information-g ather ing tasks such as asking about the driver’ s destination and purpose for the trip, Estrada v. State , 30 S.W .3d 599, 603 (Tex. App.—Austin 2000, pet. ref ’d), reque sting

10a driver’ s license and car reg istration, and conducting a computer chec k on that information. Kothe ,

152 S.W .3d at 63. These lawful infor mation-g ather ing ta sks were among the ac tiviti es conduc ted by Moore dur ing the traff

ic stop, as re flec ted in the trial cour t’s finding s:
During the eig hteen minutes, Offic er Moore spoke with defe ndant, con sidered a story defe ndant told about his activities that did not make sense, made observa tions reg arding defe ndant’s behavior , attempted to identify defe ndant without defe ndant producing a driver’ s license or identification car d, ran defe ndant’s name to confirm his identity , ran de f

e n d a n t’s name to chec k for outstanding war rants, ran defe ndant’s n am e to make sure he had a valid driver’ s license, reque sted consent to sear ch defe ndant’s vehicle, called for a K-9 Of fi ce r to respond, and briefe d a superior office r to make the deter

mination whether de fenda nt should be arr ested.

Ba sed on those finding s, the court conclude d: “The approximate eig hteen minute time period is not an unreasonable amount of t ime to detain defenda nt based upon the s urrounding circ umstances.” Fur ther, the rec ord demonstrates that Perruc ci chose to make the statement about the needle containing coca ine while g etting into the patrol car afte r his arr est, not during the temporar y investiga tive detention. Moore’ s rea sonable suspicion that Perr ucci wa s or had be en violating the law—i.e., having a non-illumina t ed l i ce nse-plate light, driving into an intersec tion on a red light, and failing to pro d u ce a d river’ s license—justified the temporar y detention, and Moore dili g ently pursued a course of i nvestig ation to confirm or dispel that suspicion in a timely manner . Nothing in this rec ord sug g ests that the duration of Perruc ci’s detention, g iven his failure to produ ce his driver’ s license, was unrea sonable. The trial court’s ruling on the motion to suppress is rea sonably supported by this rec ord, and we conclude that the court did not err in deny ing Perruc ci’s motion to suppress. Perr

ucci’ s third issue is overruled.

11Jury instructions
I n h is f o u rth issue—briefe d within his third issue on the motion to s u p p r e s s

— Pe r r u c c i contends that the trial court err ed by deny ing three instructions direc tin g t h e j ury to disreg ard evidenc e resulting from: (1) Perruc ci’s unlawful detention fo r an excessive period of time, (2) coer cive police p rac tices to obtain Perruc ci’s statement, and (3) Perruc ci’s involuntary statement. See Tex. Code Crim. P roc. Ann. arts. 38.22 § 6, .23(a) (West 2005). Perruc ci’s analy sis does
not link these statutes to any particula r instruction, but rathe r he cites g lobally to th e rang e of
p age s i n the record containing all the requested ins tructions. We discern that his first and sec o n d
reque sts—about unlawful detention and coer cive police prac tices—soug ht a specific voluntariness instruction for constitutional due proce ss claims under article 38.23(a) , and the third reque st—about his involuntary statement—soug ht a g ener al instruction on voluntariness under article 38.22, section 6. See O ursbourn v. State , 259 S.W .3d 159, 169 (Tex. Crim. App. 2008) (noting that first step in deciding upon appropr iate jury instruction is identify ing the ory of involuntariness).

1. Unlaw fu l detention ins truct ion Perruc ci claims that a fac t issue was raised under article 38.23(a) beca use, althoug h Moore had probable cause to stop him for the traff ic vi olat i o n , h e u n l awfully detained him for an excessive per iod of time. The spec ific voluntariness instruction in ar ticle 38.23(a ) states:

No evidenc e obtained by an office r or other person in violation of any provisions of the C onstitut ion or l aws of the S tate of Texas, or of the Constitut ion or laws of the United States of America, shall be admitt ed in evidenc e ag ainst the ac cused on the trial of any

criminal ca se. I n any case where the l eg a l evidence raises an issue hereunde r , the jury shall be instructed that if it believes, or has a rea sonable doubt, that the evidenc e was obtained

12in violation of the provi s i o n s of this Article, then and in such event, the jury shall

disreg ard a

ny such evide nce so obta ined.

Tex. Code Crim. Pro c. An n . art. 38.23(a) (empha sis added)

. Thus, juries may be instructed to disreg ard statements of the acc used under the exclusionary rule in article 38.23(a) if such statements

were obtained in violation of the law, but this instruction is allowed “only if there is a fac tual dispute as to how the evide nce w as obtained.” Vasquez v. State , 225 S.W .3d 541, 545 (Tex. Crim. App. 2007) (quoting Thomas v

. State , 723 S.W .2d 696, 707 (Tex. Crim. App. 1986)). Evidence on the disputed fac t issue must be aff irmatively contested, and the contested fac t issue must be materia l
t o t h e lawfulne ss of the challeng ed conduct in obtaining the statement alleg ed to be involunta ry . Oursbourn , 259 S.W .3d at 177 (citing Madden v. S t a t e , 2 4 2 S.W .3d 504, 510 (Tex. Crim. App. 2007)). I n the absenc e of a fac t issue about how evidenc e was obtained, there is nothing for the jury to decide unde r ar

ticle 38.23(a ). Vasquez , 225 S.W .3d at 545. Perruc ci arg ues that fac t issues exis ted about the re a s o n a b le n e s s o f his detention, such as whether he ran a red light at t he int erse ction and whether he had his driver’ s license with him. We disag ree . Perruc ci acknow ledg es that Moore had probable cause to stop Perruc ci. The color of the traff ic light when Perruc ci was at the intersec tion, befor e he was stopped by Moore, is irrele vant
to the l eng th of t he investi g ative detention that followed. Wit h reg ard to P err ucci’ s possession of

a driver’ s license, Moore testified that Perruc ci was arr ested for failure to display a driver’ s license,

see Tex. Transp. Code Ann. § 521.025(a )(2) , (c) (West Supp. 2010), that Perruc ci never produce d his driver’ s license to Moore, and that Moore did n o t fi n d i t

. Perruc ci testified that he had his d ri ver’ s license on him but also admitted that he did not know wher e it was and that h e h ad n o t

13produce d it throug h the time of his arr est. Perruc ci’s failure to produce his driver’ s license, as noted 2 in the trial court’s finding s, complicated Moore’ s routine tasks of identify ing the d ri v er and
proce ssing a computer chec k for war rants. Even with this complication, the elapse d time from stop
to arre st was appr ox imately eig hteen minutes. We conclude that the testimony in this re cord doe s
not raise a fac t issue on unlawful det enti on and does not support Perruc ci’s reque sted instruction under a rticle 38.23(a ).

2. Coer cive prac tice s instruction Perruc ci also asser

ts that he was entitled to an article 38.23(a) instruction beca use of

a disputed fac t issue about whether the leng th of the detention was coer cive in “ca using” h im to

war n the officers about the drug s and nee dle in his car. E ntitlement to thi s instruction require s an issue of disputed fac t about whether an office r used inhere ntly coer ci v e prac tices to obtain a defe ndant’s confession ag ainst h i s wi l l

. Oursbourn , 259 S.W .3d at 178. Such coer cive practice s rende r a confe ssion invo luntary “if the defe ndant’s ‘will has been overbor ne and his capa city for se lf-dete rmination critically impaired.’” Contreras v. State , 312 S.W .3d 566, 574 (Tex. Crim. App. 2010), cert. denied , 2010 U.S. L EXI S 8169 (2010) (quotin g S ch n ec kloth v. Bustamonte , 412 U.S. 218, 225-26 (1973))

. Wit hout evidenc e of police co er cion or overr eac hing, any inv o l u n t ariness of the confe ssion is not attributable to illega l police conduct. Oursbourn , 259 S.W .3d at 181-82. The court of criminal appea ls, citing the Supreme Court in Col o r a d o

v. Connelly , noted that statements have been found involuntary beca us e o f p o li c e o v e r

r e aching when:

A p p r o xim a te ly forty -one minutes into the video rec ordin g

— a n d a f te r Pe r r u c c i’ s a r r e s t— a n 2 office r is hear d in t h e p at rol car returning $100 and a driver’ s license to Perruc ci that wer e found during a pre -towing inventory of Perr ucci’ s car . 14(1) the suspect was subjected to a four- hour interrog ation while incapa citated and

sedate d in an intensive-c are unit; (2) the suspect, while on medication, was in t er ro gated for over eig hteen hours without food, medication, or slee p; (3) the police office rs held a g un to the head o f t h e wounded suspect to extract a confe ssion; (4) the police interrog ated the suspect intermittently for six teen day s using coer cive tactics while he was held incommunicado in a closed cell without windows and was g iven limited food; (5 ) t h e s u spect was held for four day s with inadequa te food and medical attentio n until he confe ssed; (6) the suspect was subjected to fi ve day s of repe ated questioning during which police employ ed coe rcive tactics; (7) the suspect was held incommunicado for three day s with littl e fo o d, and the confe ssion wa s obtained when office rs informed him that their chief was prepa ring to admit a ly

nch mob into the jail; and (8) the suspe ct was que stioned by rela y s of officers for t hirty -six hours wit hout an opportunity

for slee p.

Id . at 170-71 (c iting Colorado v. Connelly , 479 U.S. 157, 164 n.1 (1986) (c ollecting case s)).

Perruc ci does not dispute the validity of Moore’ s initial stop. Whil e conducting the investiga tion rela ted to that stop, Moore discovere d that Perruc ci could not produce a driver’ s license, a n ew offe nse. Moore beg an the proce ss of identify ing the driver, looking up driver’ s license rec ords, and chec king for war rants. He consulted with his supervisor about whether
to arre st Perrucc i for fa ilure to display his license. As Perr

ucci wa s being place d in the patrol c ar, h e o ffe red the information that a needle containing coca ine was on the passeng er seat of his car beca use he did not wa

nt to ex pose the off

icer s to his hepatitis C

.

15An article 38.23(a) instruction conce rning the leg ality of a statement obtained from

a defe ndant is inapplicable without some evidenc e o f t h e t y p e of police coer cion or overr eac hing envisioned in Connelly

. Id

. at 178. Nothing remotely simil ar to those pra ct i ce s is prese nted in this rec ord to demonstrate that Moore obtained a statement from P er ru cc i b y coer cion or

overr eac hing—muc h less by actions ove r coming Perruc ci’s will and critica lly impairing his capa city for self-dete rmination. See Contreras , 312 S.W .3d at 574. We conclude that this recor d does not raise a fac t issue on whether the alleg ed coer cive leng th of Perruc ci’s detention “ca used” him to war

n the office rs about the drug s and needle in his car and does n o t support his second reque sted instruction under a

rticle 38.23(a ).

3. Involu ntary state m ent instruction Perruc ci further contends that he was e ntitled to a g ener al voluntariness instruction under article 38.22, section 6 of the code of criminal proce dure, beca use there was evidenc e at trial from which a rea sonable jury could conclude that his statement to Moor e about the needle and the

coca ine was not voluntar

y . Article 38.22, section 6 of the code of criminal proce dure, in pe rtinent part, provide s that:

I n all case s wher e a question is raised as to the voluntar iness of a statement of an accuse d, the court must make an independe nt finding in the absenc e of the jury as t o wh et h er the statement was made under voluntary con d i t i o n s . . . . Upon the finding by the judge as a matter of law and fac t that the statement was voluntarily made, evidenc e perta ining to such matter may be s u b m i t t ed t o the jury and it shall be instructed that unless the jury believes bey ond a rea sonable doubt that the statement was voluntarily made, the jury s h al l not consider suc h statement for any purpose nor

any evidenc e obtained a s a re sult thereof.

Tex. Code C ri m . P roc. Ann. art. 38.22 § 6. But as the State notes, the initial inquiry is whether article 38.22 is applicable to the state ment. Section 5 of article 38.22 clar ifies that ar ticle 38 does 16not prec lude admissi o n “of a statement that does not stem from custodial interrog ation, or of a

voluntary statement, whether or not the result of custodial interrog ation, that has a bear ing upon the

cre dibilit y of the acc used as a witness, or of any other statement that may be admissible under law.” Id . art. 38.22 § 5.

Perruc ci testified at the suppression hea ri n g t h at his statement about the needle containing coca ine in his car w as made voluntarily :
Q. [Defense counsel]: W h y d i d y ou tell the office r t h at t h er e we re d ru gs i n t h e

front sea t? A. [P err ucci]: To be perf ectly honest I have hepatitis and I didn’t want him to ge t poked or a

ny thing.

. . . . Q. [P rosec utor]: Mr. Perruc ci, when y ou t o l d t h at t o t h e o ff i ce r y ou wer e conce rned about his safe ty g oing into the front seat of y our car ? A. [P err ucci]: Yes, sir. Q. [P rosec utor]: Did y ou just say that to the office r without him asking y ou? A. [P err ucci]: I knew what the office r was a fter, w heneve r he came up to

my car initially and asked to sear ch it, they know what they ’re looking for, when we’ re—so, y eah, I volunteered that.

At trial, as at the suppression hear ing, Perruc ci testified that he told Moore about the needle and the coca ine—without any coer cion, threa t, or question prompting a response —beca use he did not want the of

fice rs to g et stuck with a ne edle a nd exposed to his hepatitis C:
Q. [P rosec utor]: Al l ri gh t

. He didn’t ask y ou to sear ch y our car im m ed i at el y befor e y ou told him t here was a sy ring e on y our sea t, did he? 17A. [P err ucci]: No, sir. Q. [P rosec utor]: All rig ht. So that statement y o u m ad e wa s n ot in response to a

question J osh Moore asked y ou rig ht befor e y o u m ade the statement? A. [P err ucci]: No, sir. Q. [P rosec utor]: Okay

. And y ou made tha t s tatement li ke y ou told y our attorne y

beca use y ou wer e co n cer

ned that the office rs would g et stuck with the needle and y ou knew y ou had hepatitis ? A. [P err ucci]: Yes, sir. Q. [P rosec utor]: Ok ay . An d as y o u testified befor e o n a p ri o r o cc as i o n t h at

statement y ou made wa s voluntary ? A. [P err ucci]: Yes, sir. Q. [P rosec utor]: No one f orce d y ou to make that stateme nt? A. [P err ucci]: No, sir. Q. [P rosec utor]: All ri gh t

. No o n e co er ce d y o u o r t h re atened y ou to make that

statement? A. [P err ucci]: No, sir. Q. [P rosec utor]: You just made that statement as a voluntary statement so that the

office rs didn’t g et stuck with a ne edle? A. [P err ucci]: Yes, sir.

No err or results from ref

using to include a jury instruction about the voluntariness of

a statement under article 38.22 when the evidenc e does not raise a “voluntarine ss” issue. Oursbourn , 259 S.W .3d at 174. Be cause the statute require s some evidenc e prese nt ed t o t h e j u ry that the
statement was not vol untary , Perruc ci has not met his burden of demonstrating his entitlement to

an instruction under article 38

. 2 2 , s ection 6. The trial court did not err in ref using Perruc ci’s

18reque sted instructions under article 38.23(a) and article 38.22, section 6. Acc ording ly , Perruc ci’s

fourth issue is overr

uled.

CONCLUSION We ove rruled all of Perruc ci’s issues except for his f irst issue, which we sustained. Acc ording ly , we modify the trial court’s judgme nt b y deleting the portion of the order that

curr ently states:

Fur thermore , the following specia l findings or order s apply : DEF ENDANT TO P AY COURT COSTS AND ATTORNEYS F EE S, I F ABLE, UP ON RELEAS E FR OM INCAR CERATION

. As modified, we a ffirm the tria l court’s judg ment.

J eff Rose, J ustice Be fore J ustices Pury ear , Pemberton and Rose Modified and, a s Modified, Aff irmed Filed: Aug ust 31, 2011 Do Not Publish

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