## SIXTH COURT OF APPEALS
06-15-00108-CR Alexander Nathaniel Brenes, Appellant v. State of Texas, Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas No. 23814


## Appellant’s Brief

Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant



## If the Court’s decisional process will be significantly

aided by oral argument, oral argument is requested ACCEPTED 06-15-00108-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/20/2015 3:20:41 PM DEBBIE AUTREY

CLERK2 I. Identities of Parties and Counsel Alexander Nathaniel Brenes, Appellant. Michael Mowla, attorney for Appellant on appeal Don Haslam, attorney for Appellant at trial State of Texas, Appellee. Gary Young, Lamar Count y District Attorney Laurie Pollard, Lamar County Assistant District Attorney Jill Drake, Lamar County A ssistant District Attorney Hon. William Harris, Presiding J udge, Lamar County Court at Law , sitting for the 6th Judicial District Court, Lamar County3 II. Table of Contents I. Identities of Partie s and Counsel ............................. ......................................... 2 II. Table of C ontents.............................................. ................................................ 3 III. Index of Au thorities .......................................... ................................................ 5 IV. Statement of the Case and Jurisdiction ........................ ................................... 12 V. Statement Regarding Oral Argument ............................. ................................ 15 VI. Issues Presented .............................................. ................................................ 16 VII. Facts ......................................................... ....................................................... 17 VIII. Summary of the Arguments ...................................... ...................................... 21 IX. Argument ...................................................... .................................................. 24 1. Issue One: The trial court erred in adjudging Appellant guilty of possession of a controlled substance in penalty group 2 under Count Two because the evidence showed only that Appellant possessed a substance called “methylendioxy methamphetamine.” ............................................. .......................................... 24 i. No offense was legally admitted with respect to Count Two ..... ............ 24 ii. Conclusion .................................................... ........................................... 27 2. Issue Two: Appellant is entitled to have the plea bargain set aside because the parties agreed to – and the trial court impos ed – sentences that were illegal under applicable law, so this Cou rt should correct the illegal sentences and remand this case back to the trial court for resentencing under the correct range of punishment. In the alternative, Appellant is entitled to withdr aw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinformed by the trial court about the benefits of the Stat e’s punishment recommendations or possible consequences o f pleading not guilty. .............. ............................ 28 i. Fundamental error occurred in the sentences because the punishment assessed is outside the ranges chosen by the State ......................................................... ................................................ 28 ii. This Court should correct the illegal sentences and remand this case back to the trial court for resentencing under the correct range o f punishment ................................... ................................. 344 iii. In the alternative, A ppellant is entitled to withdraw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinformed by the trial court about the benefits of the State’s punishment recommendations or possible consequences of pleading not guilty. ................. ....................... 38 iv. Conclusion .................................................... ........................................... 41 3. Issue Three: The trial court erred in denying the motion to suppress the fruits from the search of Appellant’s vehicle because the evidence showed tha t before developing probable cause that the vehicle containe d hidden contraband, the police officer effectively seized the vehicle without benefit of a sea rch warrant and without probable caus e, but rather based solely on Appellant’s arrival at the home of Angela Langston and at the request of Tiffany Deaton, which based on the officer’s understanding of text messages sent by Deaton about bringing “green” to the home, the officer assumed was for the purpose of delivering ma rijuana. ......................................... ............................................ 42 i. No exception to the warrant requirement was shown ............. ................ 42 ii. The lawful seizure, “plain s mell” option does not apply ....... ................. 44 iii. Automobile exception does not apply ........................... .......................... 49 iv. Search incident to an arre st exception does not apply ......... ................... 57
v. Conclusion .................................................... ........................................... 59 4. Issue Four: The trial court e rred in accepting Appellant’s guil ty plea without first ruling that the recording of Appellant’s statement at the Paris Police Department was inadmissible because it: (1) did not reflect that during the recording, Appellant was given the warning in Texas Code of Criminal Procedure Article 38.22 § 2, whi ch is required under Article 38.22 § 3(a)(2), and (2) was illegally obtained as a result of the arrest of Appellant, which was unl awful because the arrest was based on the fruits of the illegal search of Appellant’s vehicl e. ................... 60 vi. Conclusion .................................................... ........................................... 70 X. Conclusion a nd Prayer ......................................... ........................................... 71 XI. Certificate of Service ........................................ .............................................. 72 XII. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ....... ...................... 725 III. Index of Authorities Cases Abernathy v. State , 963 S.W.2d 822 (Tex. App. San Antonio 1998, pet. ref.) .............................................. .................................................. 68 Adams v. Williams , 407 U.S. 143 (1972) ......................................... ........................ 55 Adsani v. Miller , 139 F.3d 67 (2nd Cir. 1998) ................................. ........................ 37 Anderson v. State , 787 S.W.2d 221 (Tex. App. Fort Worth 1990) ......................................................... ..................................................... 66 Arizona v. Gant , 556 U.S. 332 (2009) ......................................... ............................ 53 Armstrong v. State , 550 S.W.2d 25 (Tex. Crim. App. 1976) (op. on rehearing) ................................................. ................................................. 48 Baldwin v. State , 278 S.W.3d 367 (Tex. C rim. App. 2009) ....................... ............. 49 Bass v. State , 723 S.W.2d 687 (Tex. Crim. App. 1986) ....................... ................... 66 Benavides v. State , 600 S.W.2d 809 (Tex. Crim. App. [Panel Op.] 1980) .................................................... .................................................. 49 Benavides v. State , 680 S.W.2d 899, 901, 902, 903 (Tex. App. Houston [1st Dist.] 1984, pet. ref. ) (Cohen, J., di ssenting) ........................... 40 Berkemer v. McCarty , 468 U.S. 420 (1984) ......................................... ................... 67 Berkemer v. McCarty , 468 U.S. 420 (1984) ......................................... ................... 68 Bible v. State , 162 S.W.3d 234 (Tex. Crim. App. 2005) ....................... .................. 70 Boykin v. Alabama , 395 U.S. 238 (1969) ......................................... ....................... 40 Brown v. State , 605 S.W.2d 572 (Tex. Crim. App. 1980) ....................... ................ 54 Burgett v. State , 865 S.W.2d 594 (Tex. App. Fort Worth 1993, pet. ref. ) ............................................................. ............................................. 33 California v. Carney , 471 U.S. 386 (1985) ......................................... ....... 50, 51, 54 Carrasco v. State , 712 S.W.2d 120 (Tex. C rim. App. 1986) ....................... ........... 59 Carroll v. State , No. 02-11-00265-CR (Tex. App. Fort Worth June 6, 2013, no pet.) (mem. op., not designated for publication) .................................................. .................................................. 63 Carroll v. United States , 267 U.S. 132 (1925) ......................................... ........ 50, 566 Childress v. State , 784 S.W.2d 361 (Tex. Crim. App 1990) ........................ ........... 32 Chimel v. California , 395 U.S. 752 (1969) ......................................... ..................... 59 Coleman v. State , 955 S.W.2d 360 (Tex. App. Amarillo 1997, no pet .) (Quinn, J., d issenting) .................................... ................................... 36 Coolidge v. New Hampshire , 403 U.S. 443 (1971) ......................................... ........ 56 Crabtree v. State , 389 S.W.3d 820 (Tex. C rim. App . 2012) ....................... ............ 32 Davison v. State , 405 S.W.3d 682 (Tex. C rim. App. 2013) ....................... ............. 39 Delaware v. Prouse , 440 U.S. 648 (1979) ........................................................ ....... 45 Dickerson v. United States , 530 U.S. 428 (2000) ......................................... .... 64, 65 Dowthitt v. State , 931 S.W.2d 244 (Tex. C rim. App . 1996) ....................... ............. 68 Draper v. United States , 358 U.S. 307 (1959) ......................................... ................ 55 Edwards v. Arizona , 451 U.S. 477 (1981) ......................................... ...................... 61 Ellerbee v. State , 631 S.W.2d 480 (Tex. Crim. App. 1981) (op. on original submission, disposition changed on other grounds on re hearing) ......................................... ........................................... 32 Escamilla v. State , 143 S.W.3d 814 (Tex. C rim. App. 2004) ....................... .......... 66 Ex parte Elliott , 746 S.W.2d 762 (Tex . Crim. App. 1988) ....................... ............... 25 Ex Parte Hill , 528 S.W.2d 125 (Tex. Crim. App. 1975) ....................... .................. 34 Ex parte Johnson , 12 S.W.3d 472 (Tex. C rim. App . 2000) ........................ ............ 37 Ex parte Patterson , 969 S.W.2d 16 (Tex. Crim. App . 1998) ........................ .......... 26 Ex Parte Rich , 194 S.W.3d 508 (Tex. Crim. App. 2006) ....................... .......... 31, 35 Ex parte Smith , 678 S.W.2d 78 (Tex. Crim. App. 1984) ........................ ................. 40 Ex parte Spaulding , 687 S.W.2d 741 (Tex. C rim. App. 1985 ........................ ......... 26 Flemming v. State , 949 S.W.2d 876 (Tex. App. Houston [14th Dist.] 1997, no pet .) ............................................................ ........................... 69 Flores v. State , 895 S.W.2d 435 (Tex. App. San Antonio 1995, no writ ) ............................................................. .............................................. 59 Florida v. Royer , 460 U.S. 491 (1983) ......................................... ........................... 55 Ford v. State , 158 S.W.3d 488 (Tex. Crim. App. 2005) ....................... ................... 42 Franklin v. State , 976 S.W.2d 780 (Tex. App. Houston [1st Dist.] 1998, pet. ref. ) ............................................................. ......................... 507 Franks v. State , 712 S.W.2d 858 (Tex. App. Houston [1st Dist.] 1986, pet. ref. ) ............................................................. ................................... 70 Griffin v. Illinois , 351 U.S. 12 (1956) (Frankfurter, J., concurri ng) ................................................... .................................................. 37 Guzman v. State , 959 S.W.2d 631 (Tex. C rim. App. 1998) ....................... ............. 44 Harper v. State , 704 S.W.2d 546 (Tex. App. Houston [14th Dist.] 1986, pet. ref. ) ............................................................. ......................... 54 Harris v. State , No. 06-14-00162-CR, 2015 Tex. App. LEXIS 8046 (Tex. App. Texarkana, July 31, 2015, no pet .) (not yet reported) ................................................. .................................................. 46 Harvill v. State , 13 S.W.3d 478 (Tex. App. Corpus Christi 2000, no pet .) ............................................................ ..................................... 34 Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991) (plurality op. on rehearing) .................................. .......................................... 35 Hernandez v. State , 867 S.W.2d 900 (Tex. App. Texarkana 1993, no pet .) ............................................................ ..................................... 46 Herring v. State , 758 S.W.2d 849 (Tex. App. Corpus Christi 1988, pet. ref. ) ............................................................. ................................... 54 Hopkins v. State , No. 05-14-00146-CR, 2015 Tex. App. LEXIS 5468 (Tex. App. Dallas, May 28, 2015), pet. granted in No. PD-0794-15 (Tex. Crim. App., August 26, 2015) ............. ..................... 30 Horton v. California , 496 U.S. 128 (1990) ......................................... ..................... 55 Illinois v. Gates , 462 U.S. 213 (1983) ......................................... ............................ 55 In re Beck , 26 S.W.3d 553 (Tex. App. Dallas 2000, orig. proceeding) ................................................... ................................................. 36 Kniatt v. State , 206 S.W.3d 657 (Tex. Crim. App. 2006)........................ ................ 40 Kothe v. State , 152 S.W.3d 54 (Tex. Crim. App . 2004) ........................ .................. 45 Lindsey v. Normet , 405 U.S. 56, 77 (1972) ...................................... ....................... 37 Liverman v. State , No. PD-1595-14, 2015 Tex. Crim. App. LEXIS 992, at *7 (Tex. Crim. App. Sept. 23, 2015) (not yet reported) ................................................. .................................................. 25 Martin v. State , 780 S.W.2d 497 (Te x. App. Corpus Christi 1989, pet. ref. ) ............................................................. ................................... 518 McCain v. State , 67 S.W.3d 204 (Tex. Crim. App. 2002) ........................ ............... 27 McKune v. Lile , 536 U.S. 24 (2002) .......................................... .............................. 65 Meek v. State , 790 S.W.2d 618 (Tex. Crim. App. 1990) ....................... .................. 67 Melton v. State , 790 S.W.2d 322 (Tex. Crim. App. 1990) ....................... ........ 66, 67 Michigan v. Mosley , 423 U.S. 96 (1975) .......................................... ....................... 61 Miles v. State , 357 S.W.3d 629 (Tex. Crim. App. 2011) ....................... .................. 25 Minnesota v. Murphy , 465 U.S. 420 (1984) ......................................... ................... 67 Missouri v. McNeely , 133 S.Ct. 1552 (2013) ....................................... .................... 53 Mizell v. State , 119 S.W.3d 804 (Tex. Crim. App. 2003) ....................... ................. 35 Moore v. State , 545 S.W.2d 140 (Tex. Crim. App. 1976) ....................... ................ 25 Muse v. State , 815 S.W.2d 769 (Tex. App. Waco 1991, no pet .) ............................ 35 Neal v. State , 256 S.W.3d 264 (Tex. Crim. App. 2008) ....................... ................... 53 Neese v. State , 930 S.W.2d 792 (Tex. App. Beaumont 1996, pet. ref. ) ............................................................. ............................................. 56 New York v. Belton , 453 U.S. 454 (1981) ......................................... ....................... 53 Nguyen v. State , 292 S.W.3d 671 (Tex. Crim. App. 2009) ....................... .............. 63 Nix v. State , 65 S.W.3d 664 (Tex. Crim. App . 2001) ........................ ............... 26, 27 North Carolina v. Alford , 400 U.S. 25 (1970) .......................................... ............... 40 Odenthal v. State , 290 S.W. 743 (1927) ( op. on rehearing) ...................... .............. 45 Oregon v. Elstad , 470 U.S. 298 (1985) ......................................... .......................... 66 Oriji v. State , 150 S.W.3d 833 (Tex. App. Houston [1st Dist.] 2004) ......................................................... ..................................................... 67 Paez v. State , 681 S.W.2d 34 (1984) ........................................ ............................... 66 Pennsylvania v. Labron , 518 U.S. 938 (1996).......................................... ........ 50, 55 Pennsylvania v. Muniz , 496 U.S. 582 (1990) (pl urality opinion) ..................... ....... 64 Pettigrew v. State , 908 S.W.2d 563 (Tex. App. Fort Worth 1995, pet. ref. ) ............................................................. ................................... 51 Piercy v. Commonwealth , 303 S.W.3d 492 (K y. App. 2010) .............................. ... 46 Powell v. State , 898 S.W.2d 821 (Tex. Crim. App. 1994) ....................... ............... 549 Reeder v. State , 428 S.W.3d 924 (Tex. A pp. Texarkana 2014, pet. granted ) ............................................................. ...................................... 43 Riley v. California, 134 S.Ct. 2473 (2014) ........................................ ...................... 43 Roberts v. State , 444 S.W.3d 770 (Tex. App. Fort Worth 2014, pet. ref. ) ............................................................. ............................................. 49 Robinson v. State , 739 S.W.2d 795 (Tex. C rim. App. 1987) ....................... ........... 40 Rodriguez v. State , 838 S.W.2d 780 (Tex. App. Corpus Christi 1992, no pet .) ............................................................ ..................................... 57 Rosales v. State , 748 S.W.2d 451 (Tex. Crim. App. 1987) ....................... .............. 36 Sanders v. State , 785 S.W.2d 445 (Tex. App. San Antonio 1990, no pet .) ............................................................ ..................................... 31 Schmerber v. California , 384 U.S. 757 (1966) ......................................... ............... 53 Schneckloth v. Bustamonte , 412 U.S. 218 (1973) ......................................... ........... 55 Scott v. State , 571 S.W.2d 893 (Tex. Crim. App. 1978) ....................... ................... 67 Sibron v. New York , 392 U.S. 40 (1968) .......................................... ........................ 50 Sigford v. State , 72 S.W.3d 679 (Tex. App. Beaumont 2001, pet. ref. ) (Burgess, J., d issenting) ................................... ............................... 36 Soldal v. Cook County, Ill. , 506 U.S. 56 (1992) .......................................... ............ 45 Speth v. State , 6 S.W.3d 530 (Tex. Crim. App . 1999) ......................... .................... 36 Stansbury v. California , 511 U.S. 318 (1994) ......................................... ................ 68 State ex rel. Vance v. Hatten , 600 S.W.2d 828 (Tex. Crim. App. 1980) ......................................................... ..................................................... 33 State v. Bailey , 338 P.3d 702 (O r. 2014) ..................................... ............................ 48 State v. Carter , 915 S.W.2d 501 (Tex. Crim. App. 1996) ....................... ................ 56 State v. Cruz , 461 S.W.3d 531 (Tex. Crim. App. 2014) ....................... ................... 64 State v. Cuong Phu Le , 463 S.W.3d 872 (Tex. Crim. App. 2015) ......................................................... ..................................................... 54 State v. Granville , 373 S.W.3d 218 (Tex. App. Amarillo 2012), aff’d , 423 S.W.3d 402 (Tex . Crim. App. 2014) ....................... ..................... 49 State v. Grayson , 336 S.W.3d 138 (Mo. 2011) ................................................ ........ 48 State v. Guzman , 959 S.W.2d 631 (Tex . Crim. App. 1998) ....................... ............. 5210 State v. Iduarte , 268 S.W.3d 544 (Tex. Crim. App. 2008) ....................... ............... 62 State v. Jiminez , 987 S.W.2d 886 (Tex. C rim. App. 1999) ....................... .............. 40 State v. Lee , 957 So.2d 76 (Fla. 5 th Dist. App. 2007) ..................... ........................ 47 State v. Millan , 916 P.2d 1114 (Ari z. App. 1995) ............................. ...................... 46 State v. Morrow, 128 625 P.2d 898 (1981) ...................................... ........................ 46 State v. Powell , 306 S.W.3d 761 (Tex. Crim. App. 2010) ....................... ............... 48 State v. Sheppard , 271 S.W.3d 281 (Tex . Crim. App. 2008) ....................... ........... 44 State v. Steelman , 93 S.W.3d 102 (Tex. C rim. App . 2002) ........................ ............. 58 Stinnett v. State , 720 S.W.2d 663 (Tex. App. Amarillo 1986, no pet .) ............................................................ .................................................... 70 Stoddard v. State , 475 S.W.2d 744 (Tex. C rim. App . 1972) ....................... ............ 51 Sutherland v. State , 436 S.W.3d 28 (Tex. App. Amarillo 2014, reh. overruled ) ............................................................. .................................. 54 Teal v. State , 230 S.W.3d 172 (Tex. Crim. App. 2007) ....................... ................... 26 Texas v. Brown , 460 U.S. 730 (1983) ......................................... ............................. 55 Tollefson v. State , 352 S.W.3d 816 (Tex. App. San Antonio 2011, pet. ref. ) ............................................................. ................................... 44 Torres v. State , 182 S.W.3d 899 (Tex. Crim. App. 2005) ....................... ................ 57 United States v. Johns , 469 U.S. 478 (1985) ......................................... ........... 44, 52 United States v. Jones , 132 S.Ct. 945 (2012) ........................................ .................. 53 United States v. MacCollom , 426 U.S. 317 (1976) ......................................... ........ 36 United States v. Ortiz , 422 U.S. 891 (1975) ......................................... ................... 49 United States v. Ross , 456 U.S. 798 (1982) ......................................... .................... 54 United States v. Sharpe , 470 U.S. 675 (1985) ......................................... ................ 55 Vicioso v. State , 54 S.W.3d 104 (Tex. App. Waco 2001, pet. ref. ) ............................................................. .................................................... 61 White v. State , 729 S.W.2d 737 (Tex. Crim. App. 1987) ....................... ................. 46 Wicker v. State , 740 S.W.2d 779 (Tex. Crim. App. 1987), cert. denied , 485 U.S. 938 (1988) ......................................... ................................. 66 Williams v. State , 522 S.W.2d 483 (Tex. C rim. App . 1975) ....................... ............ 4011 Williams v. State , 743 S.W.3d 642 (Tex. C rim. App . 1988) ....................... ............ 48 Wilson v. State , 621 S.W.2d 799 (Tex. Crim. App. 1981) ....................... ............... 50 Ybarra v. Illinois , 444 U.S. 85 (1979) .......................................... ........................... 55 Statutes Tex. Code Crim. Proc. Art. 11.07 (2015) ....................... ......................................... 37 Tex. Code Crim. Proc. Art. 14.03 (2010) ....................... ......................................... 59 Tex. Code Crim. Proc. Art. 38.23 (2010) ....................... .................................. 13, 42 Tex. Health & Safety C ode § 481.002 (2010) .................... ..................................... 25 Tex. Health & Safety C ode § 481.103 (2010) .................... ..................................... 24 Tex. Health & Safety C ode § 481.113 (2010) .................... .............................. 13, 24 Tex. Health & Safety C ode § 481.121 (2010) .................... ..................................... 13 Tex. Health & Safety C ode § 481.134 (2010) .................... ..................................... 29 Tex. Pen. Code § 12.33 (2010) ................................. ............................................... 34 Tex. Pen. Code § 12.41 (2010) ................................. ............................................... 32 Tex. Pen. Code § 12.42 (2010) ................................. ........................................ 13, 29 Tex. Pen. Code § 8.06 (2010) .................................. ................................................ 47 Rules Tex. Rule App. Pro c. 25.2 (2015) .............................. ....................................... 14, 35 Tex. Rule App. Pro c. 26.2 (2015) .............................. .............................................. 14 Tex. Rule App. Pro c. 39 (2015) ................................ ............................................... 15 Tex. Rule App. Proc. 9.4 (2015) ............................... ............................................... 73 Tex. Rule App. Proc. 9.5 (2015) ............................... ............................................... 72 Constitutional Provisions Tex. Const. Art. 1, § 10 ...................................... ...................................................... 64 U.S. Const. Amend. IV ......................................... ............................................ 13, 4212 To the Honorable Justices o f the Court of Appeals: Appellant Alexander Nathaniel Br enes submits this Brief in sup port of the appeal:

IV. Statement of the Case and Jurisdiction This is an appeal of a Judgment of Conviction by Court (“ Judgment ”) and sentence under cause number 23814 for Possession of Marijuana i n an amount greater than five pounds but less than fifty pounds, for which Appellant was sentenced to 20 years in prison (Count One), and for Possession with Intent to Deliver a Controlled substance, n amely “ecstasy or methylendiox y methamphetamine of four grams but less than 400 grams,” for whi ch Appellant was sentenced to 25 years in pri son (Count Two). (CR, 99-102). 1 On July 15, 2010, a grand jury i ndicted Appellant, alleging in Count One that on or about April 23, 2010, in Lamar County, Texas, Appell ant “intentionally or knowingly possess a usable quantity of marijuana of fifty (5 0) pounds or less, but more than five (5) pounds,” and that the offense was commit ted within 1,000 feet of the premises of a playground.” (CR, 7). See Tex. Health & Safety Code § 481.121(b)(4) (2010).

1 The record on appeal consists of the Clerk’s Record and Supple mental Clerk’s Record, which are cited by “CR” or “CR-Supp” followed by the page number, and two volumes of the reporter’s record, which are cite d as “RR1” or “RR2,” followed by the page number.13 In Count Two, the indictment alleged that on or about April 23, 2010, in Lamar County, Texas, Appellant “ intentionally or knowingly pos sess(ed) a controlled substance with the int ent to deliver, namely ecstasy or Methylendioxy methamphetamine of four (4) grams or more but less than Four Hu ndred (400) grams, including any adulterants or dilutants.” (CR, 7). See Tex. Health & Safety Code § 481.113 (2010). Under both Counts One and Two, the indictment further alleged t hat prior to the commission of the offenses, Appellant was finally convicted of felony Possession of a Controlled Substance, namely Methylenedioxy, of four grams or more but less than 200 grams, in the 6th District Court of Lama r County, Texas, on March 3, 2006, in Cause Number 20928. (CR, 7). See Tex. Pen. Code § 12.42(b) & (c) (2010). Appellant filed a motion to suppr ess the warrantless search con ducted by the police. (CR, 40-42). Appellant argued that the evidence agains t him should be excluded under the Fourth Amendment and Texas Code of Criminal Procedure 38.23(a). (CR, 40-42); see U.S. Const. Amend. IV and Tex. Code Crim. Proc. Art. 38.23(b) (2010). The trial court overruled Appellant’s motion. (RR1, 119). Under a plea bargain, Appellant w aived trial by jury and pleade d guilty to Possession of Marijuana in an amount greater than five pounds b ut less than fifty pounds, for which Appellant was sentenced to 20 years in prison (Count One), and14 Possession with Intent to Deliver a Controlled substance, namel y “ecstasy or methylendioxy methamphetamine of four grams but less than 400 g rams,” for which Appellant was sentenced t o 25 years in prison (Count Two) . (CR, 79-88, 99- 102). Appellant filed a timely notice of appeal. (CR, 96); see Tex. Rule App. Proc. 26.2(a) (2015). Appellant filed a motion for new trial, which was overruled without a hearing by operation of law. (CR, 116-117). The tria l court signed a Certification of Defendant’s Right of Appeal, certifying that a lthough this is a plea bargain case, Appellant has the right to appeal the trial court ’s ruling on the motion to suppress. (CR, 114). See Tex. Rule App. Proc. 25.2(a)(2) (2015). As a result, this Court has jurisdiction over this appeal. Also, in this Ap peal, Appellant challenges the constitutionality of the limitation placed on hi s right to appeal because he raises other matters over which this Court must exer cise jurisdiction.15 V. Statement Regarding Oral Argument Although the facts and arguments are thoroughly presented in th is Brief, if the Court’s decisional process will be significantly aided by o ral argument, Appellant will be honored to present oral argument. See Tex. Rule App. Proc. 39 (2015).16 VI. Issues Presented Issue One : The trial court erred in adjud ging Appellant guilty of posses sion of a controlled substance in penalty group 2 under Count Two because the evidence showed only that Appellant posse ssed a substance called “methyl endioxy methamphetamine.”
Issue Two : Appellant is entitled to have t he plea bargain set aside beca use the parties agreed to – and the trial court imposed – sentences tha t were illegal under applicable law, so this Court s hould correct the illegal senten ces and remand this case back to the trial court for resentencing under the correct range of punishment. In the alternative, Appellant is entitled to withdraw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinform ed by the trial court about the benefits of the State’s punishment recommendati ons or possible consequences of pleading not guilty.
Issue Three : The trial court erred in denying the motion to suppress the f ruits from the search of Appellant’s vehicle because the evidence showed t hat before developing probable cause that the vehicle contained hidden con traband, the police officer effectively seized the vehicle without benefit of a sea rch warrant and without probable cause, but rathe r based solely on Appellant’s arrival at the home of Angela Langston and at the re quest of Tiffany Deaton, which based on the officer’s understanding of text messages sent by Deaton about b ringing “green” to the home, the officer assumed was for the purpose of delivering marijuana.
Issue Four : The trial court erred in accepting Appellant’s guilty plea wi thout first ruling that the recording of Appe llant’s statement at the Paris Police Department was inadmissible because it: (1) did not reflect that during th e recording, Appellant was given the warning in Texas Code of Criminal Procedure Artic le 38.22 § 2, which is required under Article 38.22 § 3(a)(2), and (2) was il legally obtained as a result of the arrest of Appellant , which was unlawful because t he arrest was based on the fruits of the illegal se arch of Appellant’s vehicle.17 VII. Facts Detective Leigh Foreman of the Paris Police Department was rout inely involved in investigating potential narcotics violations. (RR1 , 12-14). On April 23, 2010, Foreman was focused on a home at 2331 Maple in Paris beca use Anson Amis, an investigator with the Lamar County Sheriff’s Departmen t, told him that he had received information th at Appellant was frequenting the residence “supposedly in possession of marijuana, ecstasy.” (RR1, 13-14). It appears, however, that this information was false because Angela Langsto n admitted that she knew nothing about Appellant selling drugs and had never se en Appellant at the home. (RR1, 75, 76). On April 23, 2010, Foreman and two other officers went to the h ome. (RR1, 14, 41). They first made contact with Tiffany Deaton, and after making contact with two other persons, they determined that Angela Langston wa s the person who lived there. (RR1, 14, 41). The officers obtained Langston’s c onsent for to search the home. (RR1, 14, 41). The search revealed a small amount of marijuana in a clear pla stic baggie in Langston’s room, and remnants of marijuana packaging used by De aton. (RR1, 15). The remnants were large pieces of tape that smelled like m arijuana. (RR1, 15). Foreman inferred that the t ape was associated with larger bundles of marijuana. (RR1, 15). When questioned about the tape, Deaton st ated that her18 marijuana supplier was Appellant, adding that he had brought marijuana to the home the previous date and she ha d helped him package marijuana in smaller amounts. (RR1, 17). Deaton denied making this statement at the hearing, and also denied stating that Appellant had marijuana with him the day be fore. (RR1, 93-96). In fact, Deaton denied ever telling anybody that Appellant sold marijuana. (RR1, 94). Deaton tried to help herself by agreeing to contact Appellant to see if she could get him to deliver marij uana to the home. (RR1, 17, 101-1 02). Foreman had Deaton contact Appellant through text messaging. (RR1, 18). For eman saw that the request was made in what he considered “slang” for marijuana, n amely, her message asked if Appellant had any “green.” (RR1, 19). Foreman said he assumed Deaton was, in fact, conversing with Appellant. (RR1, 19). In a phone call, the person stated he would be “on hi s way,” and Appellant arrived a t the home a short time later, driving a green Toyot a as Deaton predicted. (RR1, 1 9). The officers were hiding in the home. (RR1, 51-52). Appellant exited his vehicle, walked into the home, a nd was immediately handcuffed a nd detained. (RR1, 20, 56, 91). Foreman immediately went outside to the vehi cle, and as he approached it, he could “instantly smell marijuana,” later desc ribed as a strong odor. (RR1, 22). The windows to the vehicle were “down.” (RR1, 20). Foreman believed, according to his traini ng, that this smell “allowed” him to search the19 vehicle for marijuana. (RR1, 20) . Foreman agreed that the smell was the exclusive reason for his decision to search the car. (RR1, 59). Although Appellant refused to consent to a search of the vehicle, and no search warrant was o btained, Foreman searched Appellant’s vehicle. (RR1, 20-21, 43). Foreman found a backpack in the front floorboard that containe d marijuana, plastic baggies, and a digital scale. (RR1, 22). Foreman stated that Deaton told him Appellant normally carried his contraband in a backpack. (RR1, 22). In the glove compartment, Foreman found a baggie containing 99 tablets of ec stasy. (RR1, 22- 23). Nine bundles of marijuana we re found in the trunk of the v ehicle. Ultimately, the marijuana weighed out at almost 12 pounds. (RR1, 23). Appe llant was transported to the Paris City Jail. (RR1, 25). Before leaving the scene, Detective Springer attempted to get Appellant to talk with him about the offense. ( RR1, 25). Springer advised Ap pellant of his Miranda rights, and particularly of his right to counsel and to remain silent or terminate the interview. (RR1, 25). Appellant chose not to spea k with Springer. (RR1, 25, 61). At the jail, howev er, Foreman was able to encour age Appellant to talk with him about his activities as a dealer in marijuana and ecstasy. (RR1, 25- 28). Foreman explained to Appellant that since he understood t hat Appellant had requested an attorney when Springer tried to question him, he c ould (Foreman) not speak with Appellant unless Appe llant attempted to speak with h im first. (RR1, 25-20 26). Foreman stated that in res ponse, Appellant denied having r equested an attorney when speaking with Springer and “started talking” to F oreman. (RR1, 26). Foreman described Appellant’s sta tement as confessions to being a marijuana and ecstasy dealer to varying degrees. (RR1, 26, 64).21 VIII. Summary of the Arguments Appellant presents the following arguments: First, Appellant w ill show that The trial court erred in adjudg ing Appellant guilty of possessi on of a controlled substance in penalty group 2 under Count Two because the eviden ce showed only that Appellant possessed a subs tance called “methylendioxy meth amphetamine.” Second, Appellant will show that he is entitled to have the pl ea bargain set aside because the parties agreed to – and the trial court impos ed – sentences that were illegal under applicable law , so this Court should correct the illegal sentences and remand this case back to the trial court for resentencing u nder the correct range of punishment. In the alternativ e, Appellant will show that he is entitled to withdraw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinformed by the trial court about the benefits of the State’s punishment recommendations or possible consequences of pleading not guilty. Third, Appellant will show that the trial court erred in denyi ng the motion to suppress the fruits from the search of Appellant’s vehicle beca use the evidence showed that before developing pro bable cause that the vehicle c ontained hidden contraband, the police officer e ffectively seized the vehicle w ithout benefit of a search warrant and without probable cause, but rather based sol ely on Appellant’s arrival at the home of Angela La ngston and at the request of Ti ffany Deaton, which based on the officer’s understandi ng of text messages sent by D eaton about22 bringing “green” to the home, the officer assumed was for the p urpose of delivering marijuana. Finally, Appellant will show tha t the trial court erred in acc epting Appellant’s guilty plea without first ruling that the recording of Appellant’s statement at the Paris Police Department was inadmissible becau se it: (1) did not reflect that during the recordin g, Appellant was given the warn ing in Texas Code of Criminal Procedure Article 38. 22 § 2, which is required unde r Article 38.22 § 3(a)(2), and (2) was illegally obtained as a result of the arre st of Appellant, which was unlawful because the arrest was based on the fruits of the illegal search of Appellant’s vehicle. Appellant will ask this Court to reverse the Judgment and sente nce and under Count Two, enter a judgment of acquittal as to that offen se. In the alternative, Appellant will ask th is Court to remand Count Two to the trial court for a new trial with instructions that none of the evidence seized from Appellant or Appellant’s statements to the po lice are admissible. Again in the alternative, Appellant will ask this Court to r emand Count Two to the trial court for reassessment of punishment. As to Count One, Appellant will ask this Court to reverse the Judgment and sentence and remand Count One to the trial court for a new tria l with instructions that none of the evidence seized from Appellant or Appellant’s statements to the23 police are admissible. In the alternative, Appellant will ask this Court to remand Count One to the trial court for reassessment of punishment.24 IX. Argument 1. Issue One: The trial court erred in adjudging Appellant guilty of possession of a controlled substa nce in penalty group 2 under C ount Two because the evidence showed only that Appellant possessed a substance called “methyle ndioxy methamphetamine.” i. No offense was legally admitted with respect to Count Two It is unclear what offense was a ttempted or intended to be alle ged in Count Two, because neither “ecstasy” nor “methylendioxy methamphetami ne” is listed in Texas Health and Safety Code Cha pter 481 as a controlled substa nce. It is possible that the grand jury sought to a llege possession of “3,4-methyle nedioxy methamphetamine (MDMA, MDM).” See Tex. Health & Safety Code § 481.103(1) (2010). If so, then perhaps the State sought to pros ecute Appellant for violating Texas Health and Safe ty Code § 481.113(d), which is p unishable “by imprisonment in the Texas Department of Criminal Justice for li fe or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000.”
See Tex. Health & Safety Code § 481.113(d) (2010). However, because the substance allegedly possessed by Appellant was not contraband, the conviction of Appe llant under Count Two of the indictment should be declared a nullity. Neither Appellants plea nor judicial co nfession admitted a violation of the statute cited in the judgment or any criminal conduct for that matter. (CR, 101); see Ex parte Elliott , 746 S.W.2d 762, 764 (Tex. Crim. App. 1988) (To be valid, an indictment must charge each essential el ement of the25 offense sought to be charged) and Moore v. State , 545 S.W.2d 140, 142 (Tex. Crim. App. 1976) (In a drug case where the indictment does not allege an offense, the conviction based on th e indictment is void). To be a “controlled substance,” the item possessed must be some thing “listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.” Tex. Health & Safety Code § 481.002(5) (2010); see also Miles v. State , 357 S.W.3d 629, 638 (Tex. Crim. App. 2011) (finding insufficient evidence as to an essential element of the particular drug offense for which the appellant was tried ). The question thus is, “Does certain conduct actually constitute an offense under the statute with which the defendant has been charged?” Liverman v. State , No. PD1595-14, 2015 Tex. Crim. App. LEX IS 992, at *7 (Tex. Crim. App. Sept. 23, 2015) (not yet reported). Like all other statutory constructio n questions, this is a question of law that must be re viewed by this court de novo. Id

. Appellant notes that he does not challenge the sufficiency of t he indictment, for he might be precluded from doing so under Teal v. State , 230 S.W.3d 172, 181 (Tex. Crim. App. 2007) (an indictment need only accuse “someone of a crime with enough clarity and specificity to identify the penal statute un der which the State intends to prosecute”); cf. Ex parte Patterson , 969 S.W.2d 16, 19 (Tex. Crim. App. 1998) (an offense must be charged otherwise “the judgment’s voi dness is cognizable at anytime.”). But, Appellant need not attack the i ndictment because26 even if an offense under Health & Safety Code § 481.113(d) is c onsidered to have been alleged in Count Two due t o the operation of Texas Code of Criminal Procedure Article 1.14(b), Appellant’s plea or confession that he was guilty of the facts alleged does not necessary mean that he was guilty of the particular crime for which he was being prosecuted. Because his conviction under count two is void, Appellant is en titled to immediate relief. A void judgment may be recognized by any cour t at any time, and is “incapable of any confir mation, ratification or enforcem ent in any manner or to any degree.” Ex parte Spaulding , 687 S.W.2d 741, 743 (Tex. Crim. App. 1985).
See also Nix v. State , 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). A “void” conviction or judgment is one in which the trial court lacked j urisdiction over the person or subject matter or the trial court lacks qualification to act in any manner, or one in which there is no evidence to support the conviction (as opposed to insufficient evidence). See Nix , 65 S.W.3d at 668 and McCain v. State , 67 S.W.3d 204, 209 (Tex. Crim. App. 2002). A ny perceived limitation on th is court’s jurisdiction to observe and remedy this problem presented by Te xas Rule of Appellate Procedure 25. 2(a)(2)(B) is furthe r discussed below. Out of caution, in case this Court concludes otherwise than wha t Appellant argues in this Issue, Appellant w ill next discuss another error , which is the fact that27 his sentence failed to comply w ith the applicable law, which is also the case with respect to the possession of marijuana charge.

ii. Conclusion The trial court erred in adju dging Appellant guilty of possessi on of a controlled substance in penalty group 2 under Count Two because the evidence showed only that Appellant posse ssed a substance called “methyl endioxy methamphetamine.” As a result, Appellant asks this Court to ent er a judgment of acquittal as to Count Two of the Judgment.28 2. Issue Two: Appellant is entitled to have the plea bargain set a side because the parties agreed to – and the trial court imposed – sentences that were illegal under applicable law, so this Court should correct the illegal sentences and remand this case back to the trial court for resentencing under the correct range of punishment. I n the alternative, Appellant is entitled to withdraw his pleas of gui lty because they were not intellige nt or voluntary since Appellant was misinformed by the trial court about the benefits of the State’ s punishment recommendations or possible consequences of pleading not guilty. i. Fundamental error occurred in the sentences because the punishment assessed is outside the ranges chosen by the State For purposes of assessing punishment, the indictment alleged th at the offenses were committed “in, on, or within 1,000 feet of premis es of a playground.” If this allegation is proved, the penalty range f or the offense alleged in Count One (“intentionally or knowingly possess a usable quan tity of marijuana of fifty (50) pounds or less, but more than five (5) pounds,” a nd that the offense was committed within 1,000 feet of the premises of a playground ”) would increase from two to ten years in prison (for a third-degree felony) to seven to ten years in prison and double the possible fine. Tex. Health & Safety Code § 481.134(c) (2010). With respect to the Count Two (“intentionally or knowingly poss ess(ed) a controlled substance with the int ent to deliver, namely ecstasy or Methylendioxy methamphetamine of four (4) grams or more but less than Four Hu ndred (400) grams, including any adulterants or dilutants” committed within 1,000 feet of the premises of a playground), such allegation if proved would incr ease the penalty29 range from five to 99 years or life in prison to ten to 99 year s or life in prison, and double the possible fine to $200, 000. Tex. Health & Safety Code § 481.134(c) (2012). The State, however, waiv ed or abandoned those allegatio ns. (RR2, 4). But, the indictment further alleged that prior to the commissio n of the offenses, Appellant was finally convicted of felony Possession of a Controlled Substance, namely Methylenedioxy, of four grams or more but les s than 200 grams, in the 6th District Court of Lamar County, Texas, on Mar ch 3, 2006, in Cause Number 20928. (CR, 7). See Tex. Pen. Code § 12.42(b) & (c) (2010). If the State proves this allegation, the penalty ranges for the offens es may have changed, and Count Two would become a second-degree felony, and Count On e would remain a first-degree felony bu t would be punishable by 15 to 9 9 years or life in prison. See Tex. Pen. Code § 12. 42(a) & (c) (2010). This statement is made conditionally for two reasons. First, th e allegation did not include all of the facts r equired to make Texas Penal C ode § 12.42(a) applicable and the only evidence the State offered in support o f an enhanced penalty was that the allegation was “true and correct.” (CR, 87 ; RR2, 8). What the State must have shown is that Appellant “ha[d] previously been finally convicted of a felony other than a state j ail felony punishable under Sec tion 12.35(a).” A conviction for possession of controlled substance is not necess arily for a felony other than a state jail felony punishable under Section 12.35(a ). And, there has30 never been an offense known as “possession of Methylenedioxy” defined by Texas law. Thus, a plea of “true” to the enhancement allegation or an acknowledgment of its truth in A ppellant’s judicial confession was not sufficient to show the “exceptional sentence” provided in Texas Penal Code § 12.42(a) or any other similar provision of law as applied to Appellant. The Cou rt of Criminal Appeals granted review of a similar claim in Hopkins v. State , No. 05-14-00146- CR, 2015 Tex. App. LEXIS 5468 (Tex. App. Dallas, May 28, 2015), pet. granted in No. PD-0794-15 (Tex. Crim . App., August 26, 2015).
In Hopkins , the Court of Criminal Appeals granted review on the issue tha t the court of appeals erred in finding the evidence sufficient t o prove the enhancement allegations. The i ndictment alleged that prior to the commission of the current offense of aggravated robbery, Hopkins was finally convicted of the felony offense of aggravated assault on August 29, 2003. Id . at *14. The State later filed a notice of intent to enhance the punishment based on ano ther prior conviction alleged to have occu rred before commission of the ag gravated robbery.
Id . The notice of enhancement alle ged the prior final conviction for “aggravated assault” as occurring on “the 4th day of January.” Hopkins asse rted that the evidence was insufficient to s upport the enhancem ent allegation s because the State failed to prove the year when th e conviction alleged in the not ice of enhancement occurred. Id . Although Hopkins’s trial counsel entered a plea of “true” to both31 allegations, the court of appeal s apparently erred when it reli ed on Roberson v.
State , 420 S.W.3d 832 (Tex. Crim. Ap p. 2013) for the proposition tha t when a person pleads to an enhancement allegation or the sequence of c onvictions, the State is relieved of the burden to prove the prior convictions because Roberson also recognized an exception when the record affirmatively reflects that the enhancement itself was improper. Id . at 838-839. This exception was first recognized in Sanders v. State , 785 S.W.2d 445, 448 (Tex. App. San Antonio 1990, no pet .). See also Ex Parte Rich , 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (The Court of Criminal Appeals previously confirmed that although there is a general rule that a plea of “true” to an enchantment allegati on relieves the State of its burden of proving the prior conviction, there is an exce ption to this general rule “...when the record affirmatively reflects that the enhanc ement itself was improper.). See also Ellerbee v. State , 631 S.W.2d 480, 481 (Tex. Crim. App. 1981) (op. on original submission, disposition changed on other grounds on rehearing) (an indictment must properly identify the controlled substance in order that the range of punishment may be determined). The second reason for the conditio nal nature of Appellant’s ass ertion is that Appellant’s argument runs contrary to a common misconception ab out how Texas Penal Code § 12.41(1) applies in prosecutions under the Control led Substances
Act. See Tex. Pen. Code § 12.41(1) (2010). The misconception often orig inates32 from the dicta in Childress v. State , 784 S.W.2d 361, 365 (Tex. Crim. App 1990) (stating that § 12.41(1) does not encompass a conviction for an offense obtained from a prosecution for an offense not defined or included in th e penal code so long

as “punishment for the offense was classified in terms consonant with punishment provisions of the Penal Code”). This dicta has been used to tr eat drug offenses as though they were directly subject to the provisions of Texas Pe nal Code §§ 12.42, 12.425, and 12.43, without the qua lification stated in § 12.41( 1). This reasoning in Childress is wrong, however, because the Court altered the plain language of the statute, a dding something not expressed t herein, i.e., the “so long as” exclusion stated above. The Court of Criminal Appeals was not authorized to amend the statute. Crabtree v. State , 389 S.W.3d 820, 830-831 (Tex. Crim. App. 2012) (“Like our inability to opine on a law’s wisdom, we canno t judicially amend or effectively delete [or add] statutory language in the name o f interpretation.”);
State ex rel. Vance v. Hatten , 600 S.W.2d 828, 830 (Tex. Crim. App. 1980) (“The courts, having no legislative powers, may not enlarge or alter the plain meaning of statutory language. Wording in s tatutes is to be given its lite ral interpretation when that wording is clearly unambiguous.”). Appellant also notes that the alternative basis for the opinion in Burgett v.
State , 865 S.W.2d 594, 599 (Te x. App. Fort Worth 1993, pet. ref. ) was undone by the repeal of Texas Health & S afety Code § 481.107(f), the prov ision of the33 Controlled Substances Act that provided for enhanced penalties for repeat offenders, by the 73rd Legislature (in S.B. 1067 § 2.07), a fac t not even noted in the Burgett opinion. Fortunately, it appears that this may not be an issue in this c ase because an offense under Texas Health & Saf ety Code § 481.121(b)(4) is a t hird-degree felony, both under § 481.121 stat ute and § 12.41(1). And even u nder the Childress dicta, because an offense under § 481.113(d) is not classified in terms consonant with punishment provisions of the Penal Code, there can be no d ispute about the application of § 12.41(1) when a “penal-code enhancement” is so ught, since the conviction is obviously not one “obtained from a prosecution un der” the Penal Code. Because the State chose to rely on the sentencing provisions of subchapter D Texas Penal Code Chapter effectiv ely classified the offense as a third-degree felony despite the more severe punishment provided in Texas Hea lth & Safety Code § 481.113(d), the maximum se ntence for the offense describ ed in Count Two of the indictment is 20 years in prison. See Tex. Pen. Code § 12.33(a) (2010). Because the sentence of 25 years in prison assessed with respec t to Count Two is in excess of the statutory maximum chosen by the State, it is void . (CR, 101). And because the State did not show all of the facts requ ired by Texas Penal Code § 12.42(a) with respect to Count One of the indictment, it s effort to enhance34 Appellant’s punishment for that offense failed and he should ha ve been sentenced to no more than 10 years confinement as required under Texas Health & Safety Code § 481.121(b)(4).

ii. This Court should correct the illegal sentences and remand this case back to the trial court for resentencing under the correct range of punishment A sentence unauthorized by law is fundamental error, rendering the sentence void. Ex Parte Hill , 528 S.W.2d 125, 126 (Tex. Crim. App. 1975) (Sentence was void where trial court imposed five year sentence and maximum a uthorized punishment was four years); see also Harvill v. State , 13 S.W.3d 478, 482 (Tex. App. Corpus Christi 2000, no pet .) (In a case for criminal nonsupport, at the time the defendant committed it, it wa s either a Class A misdemeanor or a third-degree felony. The trial court sentence d the defendant under the versi on of the statute as it existed at the time of sentenci ng. Because the sentence was una uthorized by law, it was fundamental error, and the sentence was rendered void.); see also Muse v.
State , 815 S.W.2d 769, 773 (Tex. App. Waco 1991, no pet .) (An unauthorized sentence is fundamental error because the fixing of penalties i s a “purely legislative function outside ambit of constitutional judicial a uthority.”) and Heath v. State, 817 S.W.2d 335, 337 (Tex. Crim. App. 1991) (plurality op. on r ehearing) (when a void sentence is obtained as a result of a plea bargain agreement, where specific performance is not an alternative, the remedy is to or der the plea of guilty35 withdrawn and to return the parties, including the State, to th eir original positions);
Rich , 194 S.W.3d at 514 (“Since neither the State nor the trial cou rt has the authority to ensure compliance with a sentence that so greatly exceeds the statutory range of punishment, the proper remedy is to allow Applicant to withdraw his plea and remand the case to the tria l court, putting both parties ba ck in their original positions before they entered into the plea bargain.”). Therefore, the errors in sentencing listed above are fundamenta l and should be corrected by this Court. This is the case even though the scope of this appeal would normally encompass only rulings on pretrial motions. Tex. Rule App. Proc. 25.2(a)(2)(A) (2015); Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (A sentence outside the proscri bed punishment range is void and illegal). This is long-established law, as in Mizell , the court cited cases with similar holdings from 2002, 2001, 1996, and 1979. Id . Further, an illegal senten ce “has no legal effect.”
Id . at 806. And, any court with jur isdiction can notice and take action upon an illegal or void sentence at any time, even sua sponte

. Id . at 805-807 (emphasis supplied). Finally, “[A] defe ndant has an absolute and nonwaiv eable right to be sentenced within the proper range of punishment established by the Legislature.” Speth v. State , 6 S.W.3d 530, 532-533 (T ex. Crim. App. 1999); see also Sigford v. State , 72 S.W.3d 679, 680-681 (T ex. App. Beaumont 2001, pet.36 ref. ) (Burgess, J., dissenting) and Coleman v. State , 955 S.W.2d 360, 364 (Tex. App. Amarillo 1997, no pet .) (Quinn, J., dissenting). The fundamental nature of a void sentence further lies in the c onclusion of law that a right of appeal is not required in order to afford d ue process. United
States v. MacCollom , 426 U.S. 317, 323 (1976). This conclusion and the fact that an illegal sentence may be attacked at any time comports with t he fundamentals of equal protection. Once a state es tablishes avenues of appellat e review, those avenues must be kept free of unreasoned distinctions that serve to impede open and equal access to the appellate courts. Rosales v. State , 748 S.W.2d 451, 454 (Tex. Crim. App. 1987); In re Beck , 26 S.W.3d 553, 555 (Tex. App. Dallas 2000, orig. proceeding). “When an appeal is afforded...it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violat ing the equal protection clause.” Lindsey v. Normet , 405 U.S. 56, 77 (1972). “Therefore, principles of due process and e qual protection mandate that an appeal process established by statute must be fairly and equally accessible to all litigants.” Adsani
v. Miller , 139 F.3d 67, 77 (2nd Cir. 1998). What is available to Appell ant in this case is also available to other d efendants in their respective cases, so this Court is free to correct the illegal sentences. Appellant is being held under void sentences and is entitled to have the validity of his sentences reviewe d to have the error corrected without requiring37 Appellant to pursue the issue by writ of habeas corpus. This is particularly true because such a challenge is permitted only “after final convict ion in a felony case.” Tex. Code Crim. Proc. Art. 11.07 § 3(b) (2015); Ex parte Johnson , 12 S.W.3d 472 (Tex. Crim. App. 2000) (If an applicant appeals his conviction and sentence, his conviction is not final for pur poses of Article 11.07 until the court of appeals issues its mandate). Further, “[T]he right of a State to lay down conditions it deem s appropriate for criminal appeals, [does not sanction] differentiations by a State that have no relation to a rational policy of criminal appeal or [authorize] the imposition of conditions that offend the deepest presuppositions of our socie ty.” Griffin v.
Illinois , 351 U.S. 12, 21-22 (1956) (Fra nkfurter, J., concurring). The State was entitled to place restrictions on appeals to try to “protect it self so that frivolous appeals are not subsidized and public moneys not needlessly spe nt.” Id . at 24. But, the mechanism chosen must not p rovide only whimsical equality. Appellant now addresses another related issue: Appellant recogn izes that because he argues that § 12.42(a) was not shown to apply to the possession of marijuana case (Count One), the State might be inclined to agre e with that claim with respect to the punishment applicable to the Count-Two offe nse and posit that Appellant was correctly subjected to a punishment of 25 years c onfinement under Texas Health & Safety Code § 481.113(d). Appellant, however, do es not attack the38 trial court’s finding that the repeat offender allegation in Co unt Two was “true beyond a reasonable doubt.” (RR2, 9). Nor can the State now cha nge its election as to which punishment provision it sought to have applied to the conduct alleged in

count two.

iii. In the alternative, Appellant is entitled to withdraw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinformed by the trial court about the benefits of the State’s punishment reco mmendations or possible consequences of pleading not guilty. In addition to his arguments about Childress and Texas Penal Code § 12.41(1), Appellant notes that hi s pleas to each offense charge d against him were effectively rendered involuntary. The trial court did not corre ctly admonish him concerning the range of punishm ent for Count Two (assuming Coun t Two even alleged an offense). By oversta ting the possible punishment (a s a minimum of 15 years up to 99 years or life), the trial court not only failed to comply with Texas Code of Criminal Procedure Artic le 26.13(a)(1), but the Court e ffectively deceived Appellant concerning the benefit of waiving his right to trial by jury or admitting certain facts. (CR, 80). “A criminal defendant who is induced to plead guilty in a state court in total ignorance of the precise nature of the cha rge and the range of punishment it carries has suffered a violation of procedural du e process. Such a defendant has such an incomplet e understanding of the charge th at his plea cannot stand as an intelligent admission of guilt.” Davison v. State , 405 S.W.3d 682, 68739 (Tex. Crim. App. 2013). Under th e circumstances in this case, i t is easily perceived that misinformation concerning the penalty for one charge would impact the defendant’s decision to accept th e government’s offer or waive trial by jury as to the other charge as well. As observed in Benavides , “An admonishment which misstates the punishment range is worse than none at all. It is normally presumed that the defense atto rney informed the defendant of the correct punishment range; that presumption is left undisturbed when the court gives no admonishment. But when the judge t ells the defendant the wrong punishment range, and the defense attorney stands by silently, the defendant is affirmatively misled both by the court’s statement and the attorney’s silent acquiescence... [T]he prejudice from a judge’s incorrect statement of the punis hment range, ratified by the defense a ttorney’s silence, is so likely to be prejudicial that “case by case inquiry is not worth the cost.” . . , [I]ncorrect admonishments of the range of punishment deny due process of law under the Texa s and U.S. Constitutions because t hey deprive the appellant of knowledge of the nature of the charges against him... Finally, how can we presume s ubstantial compliance from an admonishment that is blatantly not in compliance with the gover ning law? How can we presume that a defendant was aware of the consequences of his plea and not misled when every authority in the criminal justice system, including the trial judge, the defense attorney, and the prosecutor, all gave him incorrect advice, and thus dep rived him of correct information needed to make an informed choice of whether to waive his constitutional rights?”
Benavides v. State , 680 S.W.2d 899, 901, 902, 903 (Tex. App. Houston [1st Dist.] 1984, pet. ref. ) (Cohen, J., dissenting); see also Ex parte Smith , 678 S.W.2d 78, 79- 80 (Tex. Crim. App. 1984) (relief granted in case involving “a plea bargain based40 upon the wrong range of punishment”). The State cannot claim an y benefit under
Robinson v. State , 739 S.W.2d 795, 801 (Tex. Crim. App. 1987) in this case because the punishment assessed was not within the applicable r anges. Consistent with the requirements of the Fifth and Fourteenth Am endments, a guilty plea is valid only if it represents a voluntary and inte lligent choice among the alternative courses of action open to the defendant. See North Carolina v. Alford , 400 U.S. 25, 31 (1970) and Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). If a plea is ent ered after a defendant is mad e fully aware of the direct consequences of the plea, it is considered voluntary

. State v. Jiminez , 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). But if the plea is invo luntary, it must be set aside. Boykin v. Alabama , 395 U.S. 238, 244 (1969); Williams v. State , 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). The Court of Criminal Appeals has ruled that under Texas Rule o f Appellate Procedure 25.2(a)(2), the involuntary character of a guilty ple a is not properly reviewed in a plea-bargain case. Yet, it makes no sense for an appeals court to affirm a conviction that is void ; and in fact, a court of appea ls may not do so. Thus, for the reasons already stated above, the Court should address this issue as well (if necessary) in the event that relie f is not granted on another b asis.41 iv. Conclusion Appellant is entitled to have the plea bargain set aside becaus e the parties agreed to – and the trial court imposed – sentences that were i llegal under applicable law, so this Court s hould correct the illegal senten ces and remand this case back to the trial court for resentencing under the correct range of punishment. In the alternative, Appellant is entitled to withdraw his pleas of guilty because they were not intelligent or voluntary since Appellant was misinform ed by the trial court about the benefits of the State’s punishment recommendati ons or possible consequences of pleading not gu ilty. As a result, Appellant ask s this Court to reverse the Judgment and senten ce and remand this case back to the trial court for a new trial.42 3. Issue Three: The trial court erred in denying the motion to sup press the fruits from the search of Appellant’s vehicle because the e vidence showed that before developing probable cause that the vehicle contained hidden contraband, the p olice officer effectively sei zed the vehicle without benefit of a sea rch warrant and without probabl e cause, but rather based solely on Appellant’s arrival at the ho me of Angela Langston and at the request of Tiffany Deaton, which bas ed on the officer’s understanding o f text messages sent by Deaton about bringing “green” to the home, the officer assumed was for the purpose of delivering marijuana. i. No exception to the warra nt requirement was shown In a pretrial motion to suppres s, Appellant argued that the evi dence against him should be excluded under the Fourth Amendment and Texas Cod e of Criminal Procedure 38.23(a). (CR, 40-42); see U.S. Const. Amend. IV and Tex. Code Crim. Proc. Art. 38.23(b) (2010). Appellant urged that the search of his vehicle was unreasonable because it was conduc ted without a warrant. (CR, 4 1). The burden thus fell upon the State to demonstrate a valid exception to th e warrant clause of the Fourth Amendment could be employed to nevertheless render t he search reasonable. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Reeder v.
State , 428 S.W.3d 924, 927 (Tex. App. Texarkana 2014, pet. granted ) (“A warrantless search or seizure is per se unreasonable, unless it falls under a recognized exception to the warrant requirement.”); see also Riley v. California, 134 S.Ct. 2473, 2482 (2014). An exc eption was not shown in this case. The State filed no legal memorandum or brief in response to the Appellant’s motion. And the trial court ruled that the evidence was admissi ble without even43 requiring the State’s attorney to explain the prosecution’s the ory of admissibility. (RR1, 114, 119). And, despite Appellant’s request, the trial ju dge failed to define his legal rationale for his rulin g, instead stating only that “ [T]hat law enforcement officers had probable cause to s earch the vehicle, that no sear ch warrant was required to search the vehicle and the search by law enforcemen t officers of (Appellant’s) vehicle was lawful.” (CR-Supp, 5). On July 1, 2015, through proposed findings of fact and conclusi ons of law, the State presented an argument concerning admissibility of the evidence. (CR, 105-111). However, after writing in its proposed findings that the evidence was seized from Appellant’s vehicle, the State argues in its propos ed conclusions of law that “[A]s a visitor with no expectation of privacy in the house, the Defendant had no standing to contest the search of the same.” (CR, 108). Then the State claims that Appellant was not “under arrest” merely because he had on handcuffs (which is a strange argument especially because in support, the State cited State v. Sheppard , 271 S.W.3d 281 (Tex. Crim. App. 2008), a case in which the de fendant was handcuffed because he thr eatened another a knife). But in any event, assuming that Appellant was not “under arrest ” when he was handcuffed, in support of th e warrantless, nonconsensual se arch of Appellant’s vehicle, the State cites Guzman v. State , 959 S.W.2d 631, 634 (Tex. Crim. App. 1998) even though in Guzman , the defendant gave consent for the search; United44 States v. Johns , 469 U.S. 478, 484 (1985), even though in Johns , the warrantless search took place after the defendants were arrested and the packages that were in plain view. In fact, in Johns , Justice O’Connor made clear that the issue of the government’s contention that the plain odor of marihuana emanat ing from the packages made a warrant unnecessa ry was not before the Court. Id . at 481. The actual issue before the court was whether a warrantless search of the packages found in plain view three days after they were removed from the vehicles was warranted. Id

. Thus, no exception to the warrant requirement was shown in the case before this Court, but three ostensible ones will be discussed. See Tollefson v. State , 352 S.W.3d 816, 821 (Tex. App. San Antonio 2011, pet. ref. ) (Examining each exception to the warrant requirement as argued for by the State to determine whether they applied). This Court reviews de novo the determination of whether a specific search or seizure was “reasonable” as an ultimate ques tion of Fourth Amendment law. Kothe v. State , 152 S.W.3d 54, 62-63 (Te x. Crim. App. 2004).

ii. The lawful seizure, “plain s mell” option does not apply Appellant had just parked his vehicle nearby before entering th e home. Unbeknownst to Appellant, officer s were hiding in the residence who were intent on forcibly detaining Appellant. Once Appellant was restrained inside the residence, Appellant’s vehicle was also seized by the police wi thout a warrant.45 Although he expressly objected to any search of his vehicle, Ap pellant could not physically do anything to prevent the search. Seizure occurs when a person’s possessory interests in property are interfered with. Soldal v. Cook County, Ill. , 506 U.S. 56, 61 (1992). Automobiles are “effects” (U.S. Constitution Am end. IV) and “possessions” ( Tex. Const., Article 1, § 9) in which the people have a right to be secure a gainst unreasonable searches and seizures. See Delaware v. Prouse , 440 U.S. 648, 653 (1979) and
Odenthal v. State , 290 S.W. 743, 749 (1927) (op. on rehearing). The officer approached the vehicle to search it, and stated tha t he smelled a strong odor of marijuana emanating from the vehicle before comm encing the search. He proceeded to search t he vehicle and particularly a b ackpack located in the passenger compartment that wa s found to contain marijuana. This Court has held that when an officer smells the distinctive odor of green marijuana coming from a nearby vehicle that this alone creates sufficient probable cause to believe that marijuana is concealed in the vehicle. See Hernandez v. State , 867 S.W.2d 900, 907 (Tex. App. Texarkana 1993, no pet .) and Harris v. State , No. 06-14-00162-CR, 2015 Tex. App. LEXIS 8046 (Tex. App. Texarkana, July 31, 2015, no pet .) (not yet reported). But, because the police gained access to Appellant’s vehicle by: (1) using a false pretense, namely, an orchestrated entreaty by Appellant’s acquaintance to c ome to the residence and bring her some46 marijuana, and (2) interfered w ith Appellant’s right to control his property, the officer had no legal right to treat the vehicle as being lawful ly stopped by him, and the resulting discovery of the odor of marijuana was not inadve rtent in any sense.
See White v. State , 729 S.W.2d 737, 742 (Tex. Cri m. App. 1987) (“Evidence that an officer purposefully seeks out is not in ‘plain view.’”). Th e idea that a “plain smell” or an officer’s use of hi s sense of smell does not const itute a search and thus is freed from any probable cause r equirement is akin to the “pl ain view” doctrine. See, e.g ., State v. Morrow, 128 625 P.2d 898, 902 (1981). Thus, the officer must have a lawful right of acce ss to object to be smelled. State v. Millan , 916 P.2d 1114, 1118 n.4 (Ariz. App. 1995). See also Piercy v. Commonwealth , 303 S.W.3d 492, 498 (Ky. App. 2010); State v. Lee , 957 So.2d 76, 79-80 (Fla. 5th Dist. App. 2007) (“an officer may use his sense of smell from a place wher e he may lawfully be to develop probable cause”). Appellant’s vehicle had become bot h stationary where the police wanted it (and probably loaded with marijuana) only by virtue of the cond uct of the police. Appellant’s conduct was induced by the police, who had a person acting in accordance with their instructions, use persuasion or other mea ns likely to cause Appellant to drive to the home. As discovered during the hearin g on Appellant’s motion to suppress, on April 23, 2010, Foreman was focused on t he home because Amis told him that he had received information that Appellant w as frequenting the47 residence “supposedly in posse ssion of marijuana, ecstasy.” (RR 1, 13-14). This information was false because A ngela Langston admitted that she knew nothing about Appellant selling drugs a nd had never seen Appellant at t he home. (RR1, 75, 76). This is not a valid means of securing the ability to gain contr ol over a citizen’s private property. See Tex. Pen. Code § 8.06 (2010) (entrapment is unreasonable means for officer to use in fighting crime). The p roposed delivery and concomitant possession of marijuana in this case originated in the mind of the officer based on false informati on, and was at his request. The re is every reason to believe that Appellant travelled to the officer’s location with marijuana, at least at the time he did, only because he was enticed by the officer, po sing as Tiffany
Deaton. The officer, having illegally seized the vehicle, could not exe rcise control over it for the purpose of a search. See Williams v. State , 743 S.W.3d 642, 645 (Tex. Crim. App. 1988) (referring to “probable cause needed to invoke the plain view doctrine”). In this case there was clearly a causal connec tion between the seizure of the vehicle, which was unlawful, and the search of t he vehicle. Cf. State
v. Powell , 306 S.W.3d 761, 770 (Te x. Crim. App. 2010). The warrantless seizures of both Appellant’s person and his veh icle were merely parts of a fishing expedition by Officer Foreman, who ho ped something48 would turn up as result. “Such a fishing expedition is precisel y the sort of overreaching police behavior that the exclusionary rule is inte nded to deter.” See , e.g ., State v. Grayson , 336 S.W.3d 138, 148 (Mo. 2011) and State v. Bailey , 338 P.3d 702, 714 (Or. 2014) (explaining that evidence must be excl uded where the police detain a defendant “‘for i nvestigation’ or for ‘question ing’”). See also Armstrong v. State , 550 S.W.2d 25, 31 (Tex. Crim. App. 1976) (op. on rehearing) (The lack of reliability of the information the officer receive d meant “[t]he detention here was just the sort of fishing expedition the Four th Amendment and Article 1, § 9 of the State Cons titution, were designed to proh ibit.”). The situation here is similar to an inventory search of an unla wfully impounded vehicle. What begins as an unreasonable seizure canno t lead to a reasonable search. For an impoundment of a vehicle to be lawful , it must be reasonable under the Fourth Amendment. Benavides v. State , 600 S.W.2d 809, 811 (Tex. Crim. App. [Panel Op.] 1980); Roberts v. State , 444 S.W.3d 770, 774 (Tex. App. Fort Worth 2014, pet. ref. ). A subsequent inventory search is proper only when the vehicle’s impoundment is proper. Benavides , 600 S.W.2d at 810;
Roberts , 444 S.W.3d at 774. In effect, the officer in this case used an unreasonable means to be able to get where he was (next to Appellant’s vehic le) in order to sense an odor of marijuana. There is “no authority that allows the State to search property merely because its officers have probable cause to bel ieve that a crime49 occurred and evidence of that crime can be found on the propert y to be searched.”
State v. Granville , 373 S.W.3d 218, 222 (Tex. App. Amarillo 2012), aff’d , 423 S.W.3d 402 (Tex. Crim. App. 2014). “A search, even of an automo bile, is a substantial invasion of privacy.” United States v. Ortiz , 422 U.S. 891, 896 (1975). A second analogy is presented by Baldwin v. State , 278 S.W.3d 367 (Tex. Crim. App. 2009). In Baldwin , a deputy grew fearful of a person, handcuffed him, and then reached in the person’s pocket to retrieve his identif ication from a wallet.
Id . at 370. The Court of Criminal Appeals held that because the officer did not have a legal basis to detain the defendant, the deputy also had no legal basis (probable cause) “to search for non-weapon contraband or other evidence.” Id. at 370-372. “[T]he officer’s conduct of reaching into appellant’s pocket—even under a valid investigative detention— was an illegal search unless th ere existed some exception to the usual probable cause requirement.” Id. at 372. See also Sibron v.
New York , 392 U.S. 40, 62 (1968) (inferences drawn from observations to support a search must be reasonable).

iii. Automobile excepti on does not apply The State may rely upon the so-called “automobile exception” to justify the trial court’s order denying the motion to suppress. Under the a utomobile exception, the police may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband. California v. Carney ,50 471 U.S. 386, 393 (1985); Pennsylvania v. Labron , 518 U.S. 938, 940 (1996). This exception is predicated upon the following: (1) the “ready mobi lity” of a vehicle that creates “an exigency...”; Labron , 518 U.S. at 940; Carney , 471 U.S. at 390- 391; see also Carroll v. United States , 267 U.S. 132, 153 (1925); and (2) an individual has a reduced expectation of privacy in a vehicle be cause it is subject to “pervasive [governme nt] regulation.” Carney , 471 U.S. at 391-392); see also
Franklin v. State , 976 S.W.2d 780, 781 (Tex. A pp. Houston [1st Dist.] 1998, pet. ref. ), citing Wilson v. State , 621 S.W.2d 799, 803-804 (Tex. Crim. App. 1981). This exception to the warrant re quirement applies when the vehi cle “is found stationary in a place not regular ly used for residential purpos es” and is readily capable of being used on the highways. Martin v. State , 780 S.W.2d 497, 500 (Tex. App. Corpus Christi 1989, pet. ref. ); see Carney , 471 U.S. at 392-393. In the case before this Court, t he vehicle was not “found” stat ionary. Rather, it was made stationary by offici al conduct. Nor was there evide nce that the vehicle was not parked in a place regul arly used for residential purpos es. Further, the automobile exception originally relied on an infer ence of exigency based on the easy mobility of a vehicle. Cardwell v. Lewis , 417 U.S. 583, 598 (1974) (Stewart, J., dissenting, joined by Douglas, Brennan , and Marshall, JJ.) (“Where there is no reasonable likelihood that the automobile w ould or could be moved, the Carrolldoctrine is simply inapplicable.”). “While the nature and51 normal use of an automobile will often be the key factor in pro viding the ‘exigent circumstances’ in situations where otherwise they would not exi st, nevertheless the fact that the place to be searched is a car is but one factor, an important one, in making the determination as to the existence of the ‘exigent ci rcumstances.’ It is not the only factor to be considered.” Stoddard v. State , 475 S.W.2d 744, 752 (Tex. Crim. App. 1972). Under similar facts, this exception to the wa rrant requirement was also rejected in Pettigrew v. State , 908 S.W.2d 563, 569 (Tex. App. Fort Worth 1995, pet. ref. ). Appellant recognizes that the Cour t of Criminal Appeals determi ned that probable cause is all that is required to make the search of an automobile legal, and that the automobile exception does not require exigency. State v. Guzman , 959 S.W.2d 631, 633-634 (Tex. Crim. Ap p. 1998) (“[A] vehicle lawful ly in police custody may be searched on the ba sis of probable cause to belie ve that it contains contraband, and there is no requi rement of exigent circumstance s to justify such a warrantless search.”). However, in Guzman , the police had reliable information leading them to believe that c ontraband would be found in the v ehicle, and in fact, obtained the driver’s consent to search the vehicle. Id . at 632. Thus, the vehicle in Guzman was lawfully in police custody. The same result occurred in United States
v. Johns , 469 U.S. at 484, where the Court stated that “[a] vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it52 contains contraband, and there is no requirement of exigent cir cumstances to justify such a warrantless s earch.” (emphasis supplied). In the case before this Court, however, the police gained acces s to Appellant’s vehicle by: (1) using a false pretense, namely, an orchestrated entreaty by Appellant’s acquaintance to c ome to the residence and bring her some marijuana, and (2) interfered w ith Appellant’s right to control his property, the officer had no legal right to treat the vehicle as being lawful ly stopped by him, and the resulting discovery of the odor of marijuana was not inadve rtent in any sense. And, the information Amis provided to Foreman was false because Angela Langston admitted that she kne w nothing about Appellant selling drugs and had never seen Appellant at th e home. (RR1, 75, 76). But, just like the nonsensical w arrant-clause exceptions in New York v.
Belton , 453 U.S. 454 (1981) and Schmerber v. California , 384 U.S. 757 (1966) were ultimately struck down or r etreated from, Appellant is con fident that the true meaning of Carroll will soon be restored as a liberty interest for our citizens. T hat is assuredly the direction evident in Arizona v. Gant , 556 U.S. 332 (2009), Missouri v. McNeely , 133 S.Ct. 1552 (2013), and United States v. Jones , 132 S.Ct. 945 (2012). It makes no sense to conclude t hat the warrantless search of a n automobile is presumed to be unreasonable, only to hold that of ficers may search a vehicle whenever “they have pr obable cause to believe that the vehicle contains53 evidence of a crime.” Neal v. State , 256 S.W.3d 264, 282 (Tex. Crim. App. 2008). Where the inherent mobility of a vehicle and any threat of evid ence destruction has been overcome, the ability to obtain a warrant is even less bur densome than in drunk driving cases, so the intervention of a magistrate is the refore called for. Additionally, “technological or logistical advances that are de signed to streamline the process through which a warrant may be obtained are other f actors to consider when examining the totality of the circumstances to determine w hether those circumstances were exigent such that the warrant requirement ma y be dispensed with in a given situation.” Sutherland v. State , 436 S.W.3d 28, 37 (Tex. App. Amarillo 2014, reh. overruled ). It is clear that the automobile must be lawfully in the custody of the police before it may be searched on the basi s of probable cause.
Johns , 469 U.S. at 484. For this reas on alone, the search of Appella nt’s vehicle was unreasonable and illegal under the Fourth Amendment. When the automobile exception applies, a law enforcement office r may conduct a warrantless search of a motor vehicle if he ‘has prob able cause to believe the vehicle contains evidence of a crime.” Powell v. State , 898 S.W.2d 821, 827 (Tex. Crim. App. 1994); Carney , 471 U.S. at 390-391. “Police officers have the right to search an entire vehicl e when they have probable cause to believe there is contraband in the vehicle but do not know where it is located.” United States v.
Ross , 456 U.S. 798, 825 (1982); Herring v. State , 758 S.W.2d 849, 853 (Tex. App.54 Corpus Christi 1988, pet. ref. ); Harper v. State , 704 S.W.2d 546, 548 (Tex. App. Houston [14th Dist.] 1986, pet. ref. ). But, the factual basis for probable cause to search must be leg ally obtained. See State v. Cuong Phu Le , 463 S.W.3d 872 (Tex. Crim. App. 2015), citing Brown
v. State , 605 S.W.2d 572, 577 (Tex. Crim. App. 1980). Although Cuong Phu Le deals with legally obtaining a factual basis for probable cause for a search warrant, the same principle applies to any search. Probable cause for a search may come from any of the following sources : (1) personal observations of officers, Labron , 518 U.S. at 940; (2) the experience, special training, and expe rtise of officers to draw limited inferences of criminal activity from behavior that is not facially criminal, Texas v. Brown , 460 U.S. 730, 742-743 (1983) and Florida v. Royer , 460 U.S. 491, 507 (1983); (3) information from a reliable, known in formant or information from an independent source that can be independentl y corroborated, Draper v. United States , 358 U.S. 307, 313 (1959), Illinois v. Gates , 462 U.S. 213, 238 (1983); (4) weapons or other evidence seized during stops based upon reasonable suspicion, United States v. Sharpe , 470 U.S. 675, 683 (1985), Adams v.
Williams , 407 U.S. 143, 148-149 (1972); (5) evidence discovered in plai n view, Horton v. California , 496 U.S. 128, 142 (1990); (6) evidence discovered during consensual searches and or interviews, Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973); and (7) association with a person that the police55 have probable cause to arrest may establish probable cause to a rrest the associate if the associate is present in a pl ace in which criminal activity is openly and repeatedly conducted, as was the case in Ybarra v. Illinois , 444 U.S. 85, 91 (1979) (As opposed to “a person’s mere propinquity (proximity) to others independently suspected o f criminal activity.”). All of these sources for probabl e cause are legally obtained, a s opposed to what occurred in the case before this Court. Moreover, the Supr eme Court has explained at length that an arrest alone does not justify the s earch of the arrestee’s automobile, particularly when the police does not have lawful a ccess to it (such as impounding the vehicle or consent to search). Coolidge v. New Hampshire , 403 U.S. 443, 473-484 (1971). “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the aut omobile offend against the law.” Carroll , 267 U.S. at 158-159. The part II-D majority in Coolidge carefully observed, but rejected, the idea that it might more e asily be considered reasonable for the police to seize a vehicle “where there was n o stopping and the vehicle was unoccupied,” since t he intrusion would be “less sub stantial.” Coolidge , 403 U.S. at 479. The Supreme Court did not interpret Carroll to apply because “[U]sing reasoning of this sort, it is but a short step to the position that it is never56 necessary for the police to obtain a warrant before...seizing a n automobile, provided that they have probable cause.” Id

. To determine whether probable ca use existed to believe evidence of a crime would be found in a certain pla ce, courts apply the “totality o f the circumstances”

test. See State v. Carter , 915 S.W.2d 501, 503 (Te x. Crim. App. 1996) and Neese v.
State , 930 S.W.2d 792, 800 (Tex. App. Beaumont 1996, pet. ref. ). This test considers whether in light of “all the facts and circumstances including the veracity and basis of knowledge of persons supplying hearsay information , a fair probability exists that contraband or evidence of a crime will be found in a particular location.” Rodriguez v. State , 838 S.W.2d 780, 782 (Tex. App. Corpus Christi 1992, no pet .). Here, based on a false tip, the police suspected that Appellant was dealing marijuana and using the home of Angela Langston as a storage or preparation site. This appeared to have been corroborated by alleged statements o f Tiffany Deaton that Appellant visited the home the day before with marijuana, that he had previously supplied marijuana to her, and the discovery of tape , which smelled of marijuana, and which the officer took to indicate the tape had been removed from larger packages of marijuana. The veracity of what Deaton said needed to be tested or understood before the officer could rely on her repre sentations. This is because probable cause exists when facts and circumstances with in the officer’s57 knowledge or about which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed. See Torres v. State , 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). Foreman’s only basis for reliance, however, was Deaton’s claime d knowledge of Appellant, which wa s impelled by the officer’s thr eats against her and promises of benefits if she would assist in the investigati on. (RR1, 45-46, 87, 89-90, 103-04, 106-07). Appellant’s arrival at the scene in a g reen Toyota created no greater reason to believe the vehicle was subject to a reaso nable search. Therefore, the result of the “plain smell” by Foreman must be d isregarded in judging the reasonableness of the vehicle search.

iv. Search incident to an arrest exception does not apply There was on probable cause for the police to seize Appellant. As the vehicle arrived at Langston’s ho use, at most, Foreman could onl y speculate whether it contained marijuana. W hile Foreman may have had a hu nch that it contained marijuana, Appellant had not said or done anything in Foreman’s presence that intimated that Foreman’s hunch was valid. Appella nt’s mere arrival at the requested place in a particular automobile may have prov ed he had received Deaton’s message, but not that he was able or willing to comply with it by58 transporting marijuana. Thus, Foreman illegally seized Appella nt because Foreman should have done more to confirm his suspicion. In certain circumstances, a vali d warrantless search may be mad e incident to an arrest, but the arrest must be lawful and arrests on less th an probable cause or outside the authority granted in Code of Criminal Procedure Cha pter 14 are not lawful. “A police officer may arrest an individual without a wa rrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions.” State v. Steelman , 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). The only exception possibly suggested by the facts here is that in Code of Criminal Procedure Article 14.03(a)(1), because Appellant was f ound in a “suspicious place and under circum stances which reasonably show ed that he had been guilty of some felony,” a limited search may have been all owed. Tex. Code Crim. Proc. Art. 14.03(a)(1) (2010) . However, a search incident to arrest under this article is limited in scope. “Once there is probable cause for an arrest, the officers can search appellant’s person and the area ‘within his immediat e control.’” Chimel v. California , 395 U.S. 752, 763 (1969); Carrasco v. State , 712 S.W.2d 120, 123 (Tex. Crim. App. 1986); see also Flores v. State , 895 S.W.2d 435, 444-445 (Tex. App. San Antonio 1995, no writ ). This exception to the warrant requirement did59 not authorize the search of the vehicle after Appellant had mov ed many feet away from it and to the inside of a home.

v. Conclusion The trial court erred in denying the motion to suppress the fru its from the search of Appellant’s vehicle because the evidence showed that before developing probable cause that the vehicle contained hidden contraband, th e police officer effectively seized the vehicle without benefit of a search warr ant and without probable cause, but rather based solely on Appellant’s arrival at the home of Angela Langston and at the reque st of Tiffany Deaton, which bas ed on the officer’s understanding of text messages sent by Deaton about b ringing “green” to the home, the officer assumed was for the purpose of delivering marijuana. As a result, Appellant asks this Court to reverse the Judgment and s entence and remand this case back to the trial court for a new trial.60 4. Issue Four: The trial court erre d in accepting Appellant’s guil ty plea without first ruling that the recording of Appellant’s statemen t at the Paris Police Department was inadmissible because it: (1) did no t reflect that during the recording, Appellant was given the warn ing in Texas Code of Criminal Procedure Article 38.22 § 2, which is required under Article 38.22 § 3( a)(2), and (2) was illegally o btained as a result of the arrest of Appellant, which was unlawful beca use the arrest was based on the fruits of the illegal search of Appella nt’s vehicle. Appellant’s statements to Foreman at the city jail were apparen tly recorded and were incriminating, yet it appears the State ultimately agr eed the recording could not be used as evidence against Appellant. The trial cour t implicitly agreed with this concession in accepting Appellant’s plea, which was c onditioned on the State’s concession. But, although the trial court never made an explicit ruling on this issue, the trial court’s failure to conduc t a hearing and announce a rulin g should be considered by this Court as an adverse decision in connection w ith Appellant’s decision to accept the plea bargain offered by the State. The i ssue was ripe for decision because Appellant had ar gued that his arrest was based on the fruits of an illegal search and that Foreman h ad failed to “scrupulously hon or” Appellant’s earlier invocation of his rights to counsel and to terminate hi s interview with Springer. Cf. Michigan v. Mosley , 423 U.S. 96, 104 (1975) (“the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was61 ‘scrupulously honored.’”); see also Edwards v. Arizona , 451 U.S. 477, 485 (1981) (where an accused has invoked his rights under Miranda he cannot be subjected to further interrogation by the authorities “unless the accused hi mself initiates further communication, exchanges, or conve rsations with the police”). But-for the decision that Appellant’s arrest was not tainted by reliance on the fruits of an illegal search, the trial court presum ably would have recognized that statements made by someone not legally in custody cannot be use d as evidence against him. See Vicioso v. State , 54 S.W.3d 104, 110 (Tex. App. Waco 2001, pet. ref. ) (“A ‘voluntary’ confession given after an illegal arrest is t ainted, and, as ‘a direct result of’ the arrest, must be excluded under article 38 .23(a) of the Code of Criminal Procedure.”); see also State v. Iduarte , 268 S.W.3d 544, 550 (Tex. Crim. App. 2008) (“We have long held that the ‘fruit of the poisonous tree’ doctrine...serves to exclude as evidence not only the direct pr oducts of Fourth Amendment violations, but also the indirect products.”). Appell ant was entitled to have the admissibility of his sta tements (or the validity of th e State’s threat to use them) tentatively decided by the court before trial and the Cou rt erred in not clarifying its decision before forcing Appellant’s decision as to which plea to enter and whether to waive his right to a jury trial. The implicit ruling by the trial court that the recorded statem ents could be used as evidence against Appellant (if the opposite inference i s not drawn from the62 court’s accepting Appellant’s c onditional plea of guilty) was w rong, not only under such cases as Vicioso , but for two other reasons. If this Court decides to remand this case for trial, then it should provide the necessary guida nce on the issue so that error does not creep back into the case. The State may otherwis e decide to withdraw its concession. The evidence indicated that Foreman is the one who initiated ad ditional discussion about what Appellant had been doing. While the State may have believed that the discussion inci dentally arose during a book-i n procedure, it was clear that Foreman is the one who broached the topic of getting more information from Appellant. (RR1, 30-31). A ppellant did not initiate the d iscussion or express a change of mind about incrimina ting himself. Rather, he appare ntly responded to Foreman’s kindly (but nudging or fishing) instruction that “if you want to talk to me, if you change your mind, you have to initiate that.” (RR1, 33). This was not a means of honoring the earlier choice made by Appellant, but a s ubtle method of encouraging a change in that choice. Appellant’s “book-in” statement was also, and perhaps more cle arly, inadmissible because it did not comply with Texas law. The reco rding did not contain administration of the statutory custodial interrogation warning. When the requirements of article 38.22 “a re not met [it] does not mean t hat the statement was necessarily obtained as a result of any legal or constitutional violation [because]63 art. 38.22 mandates exclusion by its own terms and without refe rence to art. 38.23. Article 38.22 is a procedural evi dentiary rule, independent of the statutory exclusionary rule set out in Article 38.23.” Nguyen v. State , 292 S.W.3d 671, 677 (Tex. Crim. App. 2009). This was a case “where the legislature has withheld a trial court’s discretion to adm it evidence unless certain statu tory requirements are
met.” Carroll v. State , No. 02-11-00265-CR (Tex. App. Fort Worth June 6, 2013, no pet.) (mem. op., not designate d for publication). Article 38 .22 § 3 (a) of the Code of Criminal Proce dure requires more than Miranda . It plainly states: No oral . . . statement of an accused made as a result of custo dial interrogation shall be admissible against the accused in a crim inal proceeding unless: (1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement; (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 abo ve and the accused knowingly, intelligently, and voluntarily waives an y rights set out in the warni ng; . . . .” (emphasis added) In subsection (e) of Article 38.23, it provides as follows: “Th e courts of this state shall strictly construe Subsecti on (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requ irements of the subsection have been satisfied by the state...” Further, in State v. Cruz , 461 S.W.3d 531 (Tex. Crim. App. 2014), the Court of Criminal Appeals ruled that the types of questions Foreman a sked Appellant are not acceptable book-in questions. The Fifth Amendment and Arti cle 1, § 10 of the Texas Constitution protect every person from compelled self-inc rimination. U.S.64 Const. Amend. V; Tex. Const. Art. 1, § 10; Miranda v. Arizona , 384 U.S. 436, 444 (1966) (Certain warnings must be g iven before a statement made during custodial interrogation could be a dmitted into evidence); Dickerson v. United States , 530 U.S. 428, 432 (2000) (Miranda and its progeny govern the admiss ibility of statements made during custodial interrogation in both state an d federal courts). This means that a person may not be forced to provide any form of testimonial response to a police officer’s questions. A “testimonial respo nse” means any form of mental acuity that reflects a person’s communication of thou ghts to another, including but not limited to a verbal response. See Pennsylvania v. Muniz , 496 U.S. 582, 592-595 (1990) (Nonverbal conduct contains testimonia l component whenever the conduct reflects a person’s communication of thoug hts to another).
For Miranda and consequently Article 38.22 to apply, the testimonial communications by a defendant mus t be “compelled” by the action s of state officials or agents. See McKune v. Lile , 536 U.S. 24, 29-30 (2002) (Fifth Amendment not implicated and does not protect Kansas prison inm ates in a Sexual Abuse Treatment Program who were required to complete and sign an “Admission of Responsibility” form in which they accepted responsibility f or crimes and were required to provide a sexual hist ory detailing all prior sexual activity, regardless of whether they were charged or unc harged criminal offenses, and r egardless of whether the information might be used against inmates in future criminal65 proceedings). In other words, a defendant is “compelled” in th is sense if he truly has no choice due to minimum “psychological intimidation.” Alford v. State , 358 S.W.3d at 654; Innis , 446 U.S. at 300. To be certain that a person is aware of the right to be free from selfincrimination and to avoid the attendant “psychological intimid ation,” the person must be advised of the right to remain silent, the right to the presence of an attorney, that an attorney will be appointed before questioning if the accused cannot afford one, and that anything said can be used against h im or her in a court of law. Miranda , 384 U.S. at 444; Dickerson v. United States , 530 U.S. at 432- 434. If a person is not given these warnings before questionin g is begun or if an attempt to exercise one or more of the rights is not honored, i rrespective of whether the “statement” constitutes a confession, an admission, or an e xculpatory statement, the State cannot admit into evidence any statement o btained as a result of the interrogation. Miranda , 384 U.S. at 476-479. Further, the failure to administer Miranda warnings creates a presumption of compulsion, and “unMirandized” statements made mus t be excluded from evidence. Oregon v. Elstad , 470 U.S. 298, 314 (1985). As stated above, Miranda is codified under Texas Code of Criminal Procedure Article 38.22. See Tex. Code Crim. Proc. Art. 38.22 (2010). Miranda applies only when a person is s ubjected to “custodial interroga tion.” Melton v.66 State , 790 S.W.2d 322, 326 (Tex. Crim. App. 1990). In Texas, “custod ial interrogation” is defined the sa me as it is defined under feder al law. Bass v. State , 723 S.W.2d 687, 690-691 (Tex. Crim. App. 1986); Wicker v. State , 740 S.W.2d 779, 785 (Tex. Crim. App. 1987), cert. denied , 485 U.S. 938 (1988); Anderson v.
State , 787 S.W.2d 221, 227 (Tex. App. Fort Worth 1990). Custodial in terrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise d eprived of his freedom of acti on in any significant way.” Miranda , 384 U.S. at 444; Escamilla v. State , 143 S.W.3d 814, 823 (Tex. Crim. App. 2004); Paez v. State , 681 S.W.2d 34, 36-37 (1984) ( Miranda and Article 38.22 apply only to law en forcement personnel or to sta te agents); Oriji v.
State , 150 S.W.3d 833, 837 (Tex. App. Houston [1st Dist.] 2004) (pri vate citizen becomes a state agent if she makes a “citizen’s arrest,” and Mi randa warnings are required before the suspect may be asked questions). The natur e or severity of the offense involved is not a factor in determining whether the int errogation is custodial or whether Miranda applies. Berkemer v. McCarty , 468 U.S. 420, 434 (1984). To determine whether Miranda applies, two questions must be answered: first, is the defendant in cust ody, and second, has there been an interrogation. There is no question that a defendant is “in custody” when he o r she has been detained under an arrest (w ith or without a warrant). Scott v. State , 571 S.W.2d67 893, 896 (Tex. Crim. App. 1978). And a person may be in custod y without being under formal arrest. Melton v. State , 790 S.W.2d at 325. A person is “in custody” if the person’s freedom of movement has been restrained to the extent usually associated with a formal arrest. Minnesota v. Murphy , 465 U.S. 420, 430 (1984). This Court has employed factors to determine whether “custody” exists for the purposes of Miranda. See Meek v. State , 790 S.W.2d 618, 621 (Tex. Crim. App. 1990) (whether the defendant is the focus of the investigation, and whether a reasonable person would believe that his or her freedom was bei ng deprived in a significant way; or (1) the subjective intent of the police, (2 ) the subjective belief of the defendant, (3) the existence of probable cause to arrest , and (4) the focus of the investigation). The two-factor approach seems favored by t he Supreme Court of the United States, as in Stansbury v. California , 511 U.S. 318 (1994), the Court ruled that an officer’s views concerning the nature of an inter rogation or beliefs concerning the potential culpability of the defendant are relev ant to Miranda only if the officer’s views or beliefs were “manifested” to the defe ndant. Id . at 323- 324; see, e.g ., Berkemer v. McCarty , 468 U.S. 420, 442 (1984) (For the purposes of
Miranda , a person is not “in custody” even though the officer decided that as soon as the person stepped out of his vehicle, he would be stopped a nd charged with a traffic offense). In other words, Miranda does not attach under this situation until the officer objectively creates a custodial environment and has communicated to68 the defendant that he is not free to go. Id .; See also Abernathy v. State , 963 S.W.2d 822, 825 (Tex. App. S an Antonio 1998, pet. ref .) (The fact that the officer formed a subjective opinion that the defendant was intoxicated is not re levant to Miranda until the officer effected a “conve yance of this suspicion” to the defendant);
Dowthitt v. State , 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (Factors used by this Court are whether the defendant arrived at the place of in terrogation voluntarily, the length of the i nterrogation, whether the defen dant’s requests to see relatives and friends are refused, the degree of control exerci sed over defendant, and whether a “pivotal admissi on established custody”). In the case before this Court, there is no question that Appel lant was in custody when Foreman began talking to him about the case, and t here clearly was an interrogation. (RR1, 25-28). F oreman’s explanation of these events are simply not believable: he claimed that he explained to Appellant that since he understood that Appellant had requested an attorney when Springer tried to question him, he could (Foreman) not speak with A ppellant unless Appellant attem pted to speak with him first. (RR1, 25-26). Foreman stated that in response, Appellant supposedly denied having requested an attorney when speaking wi th Springer and “started talking” to Foreman. (RR1, 26). So, Foreman was obviou sly lying under oath. Or, Springer lied to Foreman when he told Foreman that Ap pellant did not wish to speak to anybody. The pro position that Springer lied to Foreman is69 absolutely absurd, as undersig ned counsel cannot recall a singl e time in a case acted as counsel or read that one officer lies to another offic er and says, “defendant does not wish to speak.” In any event, after Foreman compelled Appellant to speak, Foreman described Appella nt’s statement as confessions t o being a marijuana and ecstasy dealer to varying degrees. (RR1, 26, 64). In an alternative world, perhaps it is possible that there was compliance, because Foreman supposedly reminded Appellant of the warning gi ven earlier by Springer in connection with his attempt to interrogate Appellan t. See Flemming v.
State , 949 S.W.2d 876, 880 (Tex. App. Houston [14th Dist.] 1997, no pet .) (holding recording was admissible when first portion reflected full warnings, recording stopped, and recording resumed with accused acknowled ging that warnings had been given); Stinnett v. State , 720 S.W.2d 663, 666 (Tex. App. Amarillo 1986, no pet .) (“The substantial compliance standard the trial court used to admit the entire recording properly focused on the time when the warnings were given to appellant, and not the time when the warnings were rec orded.”); Franks v.
State , 712 S.W.2d 858, 861 (Tex. A pp. Houston [1st Dist.] 1986, pet. ref. ) (holding recording was admissible when during recording accused acknowle dged he had been advised of his rights during an earlier phase of the interrogation not included on the recording).70 However, this case is not in an alternative world, and this arg ument fails because the warnings were not part of the same interrogation (o r an earlier “phase”); nor were they contained on another part of a single r ecording. The fact that Appellant had terminated the earlier attempt by Springer t o speak to him forecloses this argument. Cf. Bible v. State , 162 S.W.3d 234, 242 (Tex. Crim. App. 2005) (finding “the two sessions were part of a single intervie w for the purpose of Article 38.22”).

vi. Conclusion The trial court erred in accepting Appellant’s guilty plea with out first ruling that the recording of Appellant’s statement at the Paris Police Department was inadmissible because it: (1) did not reflect that during the re cording, Appellant was given the warning in Texas Code of Criminal Procedure Article 3 8.22 § 2, which is required under Article 38.22 § 3 (a)(2), and (2) was illegally o btained as a result of the arrest of Appellant, which was unlawful because the arrest was based on the fruits of the illegal search of Appellant’s vehicle. As a resul t, Appellant asks this Court to reverse the Judgment and sentence and remand this case back to the trial court for a new trial.71 X. Conclusion and Prayer For the above reasons, Appellant prays that upon appellate rev iew, this Court reverse the Judgment and sentence and under Count Two, en ter a judgment of acquittal as to that offense. In the alternative, Appellant prays that this Court remand Count Two to the trial court for a new trial with instru ctions that none of the evidence seized from Appellant or Appellant’s statements to the police are admissible. Again in the altern ative, Appellant prays that thi s Court remand Count Two to the trial court for reassessment of punishment. As to Count One, Appellant prays that this Court reverse the Ju dgment and sentence and remand Count One to the trial court for a new tria l with instructions that none of the evidence seized from Appellant or Appellant’s statements to the police are admissible. In the alternative, Appellant prays tha t this Court remand Count One to the trial court for reassessment of punishment. Respectfully subm itted, Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant72 /s/ Michael Mowla Michael Mowla

XI. Certificate of Service I certify that on October 20, 2015, a true and correct copy of this document was served on Gary Young and Laur ie 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).

/s/ Michael Mowla Michael Mowla

XII. Certificate of Compliance wi th Tex. Rule App. Proc. 9.4 This certifies that this document complies with the type-volum e limitations because it is computer-generated and does not exceed 15,000 wor ds. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 12,886 words in the entire document except in the following sections: caption, identity of parties and counsel, statement regarding o ral argument, table of contents, index of authorities, s tatement of the case, statemen t of issues presented, statement of jurisdiction, statement of procedural history, sig nature, proof of service, certification, certificate of compliance, and appendix . This document also complies with the typeface requirements because it has been pre pared in a proportionally-spaced typeface using Microsoft Word in 14-point font. See Tex. Rule App. Proc. 9.4 (2015).

/s/ Michael Mowla Michael Mowla