## SIXTH COURT OFAPPEALS 06-15-00023-CR 

## JessicaBoyett,Appellant 

# v. State of Texas,Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas No. 25505 

## Appellant'sBrief

Kristin R. Brown 18208PrestonRoad, Ste. D9375 Dallas,Texas 75252 Phone: 214-466-3909 Fax: 214-481-4868 kbrown@idefenddfw.com TexasBarNo. 24081458 Attorney forAppellant



## If the Court'sdecisionalprocess willbesignificantly aidedbyoralorgument, oralargumentis requested ACCEPTED 06-15-00023-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/5/2015 12:00:00 AM DEBBIE AUTREY

CLERK

### I. Identities ofPartiesand Counsel JessicaBoyett, Appellant. Kristin R. Brown, attorney for Appellantonappeal DonHalsam, attorney for Appellant attrial State ofTexas, Appellee. Gary Young, LamarCounty DistrictAttorney Laurie Pollard, LamarCountyAssistantDistrictAttorney Hon. Will Biard, PresidingJudge, 6thJudicial District Court, LamarCounty

2II. TableofContents 

### I. Identities ofParties and Counsel
.....................................................................2 

### II. Table ofContents
............................................................................................3 

### III. Index ofAuthorities
.........................................................................................5 

### IV. Statement ofthe Case andJurisdiction
.......................................................... 10 V. StatementRegarding Oral Argument
............................................................ 12 

### VI. Issues Presented
............................................................................................. 13 

### VII. Facts................................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. Evidencepresented atthehearing onthemotionto suppress ...................... 14 2. Evidence presentedto prove guilt
................................................................21 

### VIII. Summary oftheArguments
...........................................................................22 IX. Argument
.......................................................................................................23 1. Issue One: The trial court erred when it denied Appellant's motion to suppress evidence because the evidence was illegally obtained as a result of an unreasonable seizure of Appellant without a warrant and without reasonable suspicion that he had been or would soon be engaging in criminal activity, including for any offense underTexas TransportationCode § 545.060
......................23 i. Introduction
............................................................................................23 ii. Standard ofreview
..................................................................................26 iii. Lawregarding investigative detentions
..................................................26 iv. There was nojustification for the stop ofAppellant under the Transportation Code, and this alone should cause this courtto reverse andremandthis casebackto thetrial court..................30 v. The information about pseudoephedrine purchases did not amount to reasonable suspicion to initiate a Terry investigative detention
............................................................................3 3 vi. There was no justification for the search of Appellant's vehicle andhis arrest ..............................................................................3 5 vii. Conclusion
..............................................................................................43 2. Issue Two: The trial court erred when it denied Appellant's motion to suppress his recorded statement because: (1) it was 3given in response to custodial interrogation by the police; (2) it was obtained as a result ofhis illegal arrest; and (3) it was not shown to be freely and voluntarily made without compulsion or persuasion as required by Texas Code of Criminal Procedure Article 38.21
.................................................................................................44 i. The confession was taintedby the unlawful arrest.................................44 ii. The confession was coerced
...................................................................45 iii. Conclusion
..............................................................................................50 3. Issue Three: The judicial confession offered in support of Appellant's plea of guilty was insufficient to show guilt of criminal conspiracy, which is required by Texas Code of Criminal ProcedureArtic 1 e 1 .15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 i. Argument
................................................................................................50 ii. Conclusion
..............................................................................................5 5 X. Conclusion and Prayer
...................................................................................5 5 XI. Certificate ofService
.....................................................................................5 6 XII. Certificate ofCompliance with Tex. Rule App. Proc. 9.4
............................56

4

### III. Index ofAuthorities Cases Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)
....................45, 50 Amadorv. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)
............................39 Arizonav. Fulminante, 499 U.S. 279, 287 (1991)
..................................................47 Arizonav. Johnson, 555 U.S. 323, 333 (2009)
.......................................................42 Aviles v. State, 23 S.W.3d 74, 77 (Tex. App. Houston [14th Dist.] 2000, nopet.)
......................................................................................3 3 Baggett v. State, 342 S.W.3d 172, 175 (Tex. App. Texarkana 2011)
.............................................................................................................52 Balentinev. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)
...........................29 Benderv. State, 758 S.W.2d 278 (Tex. Crim. App. 1988)
.....................................55 Blackburnv. Alabama, 361U.S.199,206 (1966)
..................................................48 Brown v. Mississippi, 297 U.S. 278 (1936)
............................................................47 Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980)
..............................44 Brown v. Texas, 443 U.S. 47, 48-49 (1979)
............................................................27 Byrdv. State, 187 S.W.3d 436, 441 (Tex. Crim. App. 2005)
.................................26 Byrdv. State, 336 S.W.3d 242, 254 (Tex. Crim. App. 2011)
.................................55 Cada v. State, 334 S.W.3d 766, 772-773 (Tex. Crim. App. 2011)
.............................................................................................................55 California v. HodariD., 499 U.S. 621, 627-628 (1991)
.........................................27 Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991)
...................................46 Ca"ollv. State, 139 S.W.2d 821, 823 (Tex. Crim. App. 1940)
.............................26 Collins v. State, 352 S.W.2d 841, 843 (Tex. Crim. App. 1961)
.......................46, 47 Connorv. State, 773S.W.2d13, 13-14 (Tex. Crim. App.1989)
...........................43 Cooper v. State, 537 S.W.2d 940, 943 (Tex. Crim. App. 1976)
.............................51 Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995)
................................40 Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App. Dallas 2009, nopet.)
.....................................................................................25 Dancyv. State, 728 S.W.2d 772, 772 (Tex. Crim. App. 1987)
..............................46 5Davenport v. State, 299 S.W.3d 859, 861 (Tex. App. Eastland 2009, nopet.)
................................................................................................34 Davis v. State, 947 S.W.2d240, 244 (Tex. Crim. App. 1997)
...............................40 Delafuente v. State, 414 S.W.3d 173, 177, 178 (Tex. Crim. App. 2013)
....................................................................................................2 9 Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007)
...............................45 Dinneryv. State, 592 S.W.2d 343, 348 (Tex. Crim. App. 1979)
............................54 Duran v. State, 552 S.W.2d 840, 842-843 (Tex. Crim. App. 1977)
.............................................................................................................52 Escobedo v. Illinois, 378 U.S. 478 (1964)
..............................................................43 Farmah v. State, 883 S.W.2d 674, 679 (Tex. Crim. App. 1994)
............................44 Farr v. State, 519 S.W.2d 876, 880 (Tex. Crim. App. 1975)
.................................49 Fordv. State, 158 S.W.3d488, 492 (Tex. Crim. App. 2005)
.................................29 Fosterv. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010)
..............................29 Freeman v. State, 62 S.W.3d 883, 888 (Tex. App. Texarkana 2001,pet. ref.)
...............................................................................................36 Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)
...............................29 Garcia v. State, 829 S.W.2d 830, 833 (Tex. App. Dallas 1992, nopet.)
..........................................................................................................4 9 Gentryv. State, 770 S.W.2d 780, 789 (Tex. Crim. App. 1988)
..............................49 Golemon v. State, 247 S.W.2d 119, 121 (Tex. Crim. App. 1952)
..........................47 Gonzales v. State, 966 S.W.2d 521, 523 (Tex. Crim. App. 1998)
..........................23 Hamalv. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012)
..............................27 Hardesty v. State, 661S.W.2d130, 134 (Tex. Crim. App. 1984)
..........................48 Jackson v. Denno, 378 U.S. 368, 376 (1964)
.........................................................48 Johnson v. State, 365 S.W.3d 484, 489 (Tex. App. Tyler 2012, nopet.)
..........................................................................................................3 2 Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010)
..................................45 Kraftv. State, 762 S.W.2d612, 615 (Tex. Crim. App. 1988)
................................23 Krulewitch v. UnitedStates, 336U.S. 440 (1949)
..................................................26

6Landon v. State, 222 S.W.3d 75, 79 (Tex. App. Tyler 2006, no pet.)
...............................................................................................................5 2 Lev. State, 463 S.W.3d 872 (Tex. Crim. App. 2015)
.............................................44 Leming v. State, 454 S.W.3d 78 (Tex. App. Texarkana 2014, pet. granted)
..................................................................................................32 Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011)
.............................................................................................................45 Lopezv. State, 223 S.W.3d408, 415 (Tex. App. Amarillo 2006, nopet.)
..........................................................................................................3 6 Lopez v. State, 708 S.W.2d 446, 448-449 (Tex. Crim. App. 1986)
.............................................................................................................52 Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004)
..........................48 Mendez v. State, 56 S.W.3d 880, 891 (Tex. App. Austin 2001, nopet.)
..........................................................................................................4 3 Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009)
...........................51, 52 Menefee v. State, No. 12-07-00001-CR, 2010 Tex. App. LEXIS 6665, 2010 WL 3247816 (Tex. App. Tyler Aug. 18, 2010, nopet.) (mem. op., notdesignated for publication)
...........................52 Millerv. Fenton, 474 U.S. 104, 109 (1985)
............................................................47 Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth 1

998, nopet.)
................................................................................................4 2 Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 2008)
.............................................................................................................48 Payne v. Arkansas, 356U.S. 560, 561 (1958)
........................................................48 Princev. State, 231S.W.2d419,421 (Tex. Crim. App. 1950)
..............................47 Reckv. Pate, 367U.S. 433, 440-441 (1961)
...........................................................48 Reeves v. State, 969 S.W.2d 471, 485 (Tex. App. Waco 1998, nopet.)
..........................................................................................................3 7 Richardson v. State, S.W.3d, No. 10-14-00217-CR, 2015 Tex. App. LEXIS 7066 (Tex. App. Waco, July 9, 2015) (designated forpublication)
..........................................................................41 Rodriguez v. United States, 575 U.S. _, 135 S.Ct. 1609, 1613-1616 (2015)
.........................................................................................41 7Rogers v. Richmond, 365 U.S. 534, 540 (1961)
.....................................................48 Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990)
.............................46 Sherman v. State, 532 S.W.2d 634, 636 (Tex. Crim. App. 1976)
...........................49 Sims v. State, 98 S.W.3d 292, 295 (Tex. App. Houston [1st Dist.] 2003, nopet.)
......................................................................................4 2 Sinegalv. State, 582 S.W.2d 135, 137 (Tex. Crim. App. 1979)
.............................49 Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991)
.............................................................................................................48 State v. Alderete, 314 S.W.3d 469, 473 (Tex. App. El Paso 2010, nopet.)
................................................................................................29 State v. Crisp, 74 S.W.3d 474, 481 (Tex. App. Waco 2002, no pet.)
...............................................................................................................44 State v. Houghton, 384 S.W.3d 441, 446-447 (Tex. App. Fort Worth 2012, nopet.)
.....................................................................................30 State v. James, Nos. 03-07-00210-CR, 03-07-00211-CR, 03-07- 00212-CR, 03-07-00213-CR, 2007 Tex. App. LEXIS 8695, 2007 WL 3225374, at *4 (Tex. App. Austin, Oct. 31, 2007, no pet.) (mem. op.) (not designated for publication)
...................................................................................................34 State v. Mendoza, 365 S.W.3d 666, 669-670 (Tex. Crim. App. 2012)
.............................................................................................................26 State v. Rauch, 586 P.2d 671, 678 (Idaho 1978)
.....................................................43 State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008)
.............................................................................................................39 Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980)
..............................46 Terry v. Ohio, 392 U.S. 1, 22 (1968)
................................................................29, 39 Thornton v. State, 601 S.W.2d 340, 342-343 (Tex. Crim. App. 1980)
.............................................................................................................54 Thornton v. State, 601 S.W.2d 340, 349 (Tex. Crim. App. 1979)
..........................54 Trevino v. State, 519 S.W.2d 864, 866 (Tex. Crim. App. 1975)
............................51 Tullos v. State, 698 S.W.2d488, 490 (Tex. App. Corpus Christi 1985,pet. ref.)
.........................................................................................51, 54 UnitedStates v. Mendenhall, 446 U.S. 544, 554 (1980)
........................................26 8Valdez v. State, 555 S.W.2d463, 464 (Tex. Crim. App. 1977)
..............................51 Valtierra v. State, 310 S.W.3d442, 447 (Tex. Crim. App. 2010)
..........................26 Vargas v. State, 852 S.W.2d 43, 44 (Tex. App. El Paso 1993, nopet.)
..........................................................................................................46 Vicioso v. State, 54 S.W.3d 104, 110, 111 (Tex. App. Waco 2001, nopet.)
................................................................................................44 Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013)
....................26, 27, 29 White v. State, 574 S.W.2d 546, 547 (Tex. Crim. App. 1978)
...............................36 Whren v. UnitedStates, 517 U.S. 806, 813 (1996)
.................................................40 Williams v. State, 06-07-00132-CR, 2008 Tex. App. LEXIS 2920 (Tex. App. Texarkana, April 24, 2008, nopet.) (not designated for publication)
...........................................................................31 Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)
...........................51 Statutes Tex. Code Crim. Proc. Art. 1.15 (2015)
.................................................................51 Tex. Code Crim. Proc. Art. 38.22 (2013)
...............................................................45 Tex. Health& Safety Code§481.112(a) & (c) (2013)
.............................. 10, 11, 53 Tex. Health & Safety Code§481.124(b)(3) (2013)
...............................................38 Tex. Pen. Code§ 15.03(a) (2013)
............................................................... 10, 11, 53 Tex. Transp. Code§ 545.060 (2013)
......................................................................30 Rules Tex. Rule App. Proc. 25.2(a)(2) (2015)
............................................................ 11, 24 Tex. Rule App. Proc. 26.2(a) (2015)
...................................................................... 11 Tex. Rule App. Proc. 39 (2015)
.............................................................................. 12 Tex. RuleApp. Proc. 9.4 (2015)
.............................................................................57 Tex. Rule App. Proc. 9.5 (2015)
.............................................................................56 Tex. Rule Evid. 802(e)(2)(E)
..................................................................................26 ConstitutionalProvisions Tex. Const. Art. 1, § 19
...........................................................................................46 U.S. Const. Amend. IV
...........................................................................................39
9To the HonorableJustices ofthe CourtofAppeals: AppellantJessicaBoyett submitsthis Briefin support ofthe appeal:


### IV. Statementofthe Case andJurisdiction This is an appeal ofa Judgment ofConviction by Court ("Judgmenf') and sentence for Conspiracy to Manufacture or Deliver a Controlled Substance in Penalty Group 1under cause number 25505, in which Appellant was sentenced to five years in prison, probated for three years, and fined $500.00. (CR, 188-189).1 OnNovember 14, 2013, a grandjury indicted Appellant, alleging that on or about September 24, 2013, in Lamar County, Texas, Appellant intentionally manufactured a controlled substance (methamphetamine) in an amount of more than one gram but less than four grams, and in doing so, Appellant agreed with Rodney Boyett that they would engage in conduct that would constitute this offense, perform an overt act in pursuance to the agreement, which was possessing
or transporting a chemical substance, specifically liquid HEET and peroxide. See Tex. Health & Safety Code 

### § 481.112(a) & (c) (2013); Tex. Pen. Code § 15.03(a) (2013). Initially, Appellant pleaded "not guilty. (RR, 6). After ajury was selected and impaneled, the trial court heard Appellant's motion to suppress evidence that
1 The record on appeal consists ofthe Clerk's Record, is cited by "CR" followed by the page number, and one volume ofthe reporter's record, which is cited as "RR" followed by the page number. IOhad been filed on April 22, 2014, more than nine months earlier. (CR, 73-75). On February 3, 2015, the morning that thejury trial was set to begin, the trial court deniedthe motion. (CR, 170). Under a plea agreement, Appellant pleaded guilty to Conspiracy to Manufacture or Deliver a Controlled Substance in Penalty Group 1, and was sentenced to five years inprison, probated for three years, and fined $500.00. (CR, 188-189). Tex. Health & Safety Code§ 481.112(a) & (c) (2013); Tex. Pen. Code § 15.03(a) (2013). On February 4, 2015, Appellant filed a timely notice ofappeal. (CR, 188). See Tex. Rule App. Proc. 26.2(a) (2015). The trial court signed a Certification of Appellant's Right ofAppeal, certifying that although Appellant has no right to appeal, he may appeal the trial court's ruling on the motion to suppress and "all other pretrial motions." (CR, 183). See Tex. Rule App. Proc. 25.2(a)(2) (2015). As a result, this Courthasjurisdictionoverthis appeal.

11V. StatementRegarding Oral Argument 

### Although Appellant believes the facts and arguments are thoroughly presented in this Brief, ifthe Court's decisional process will be significantly aided by oral argument, Appellant will be honored to present oral argument. See 

### Tex. Rule App. Proc. 39 (2015).

12

### VI. Issues Presented Issue One: The trial court erred when it denied Appellant's motion to suppress evidence becausethe evidence was illegally obtained as a result ofan unreasonable seizure ofAppellant without a warrant and without reasonable suspicion that he had been orwould soon be engaging in criminal activity, including for any offense underTexas TransportationCode § 545.060 

### Issue Two: Thetrial court erred when it denied Appellant'smotionto suppress her recorded statement because: (1) it was given in response to custodial interrogation by the police; (2) it was obtained as a result ofhis illegal arrest; and (3) it was not shown to be freely and voluntarily made without compulsion or persuasion as requiredbyTexas Code ofCriminalProcedure Article 38.21. 

### Issue Three: The judicial confession offered in support of Appellant's plea of guilty was insufficient to show guilt ofcriminal conspiracy, which is required by Texas Code ofCriminal ProcedureArticle 1.15.

13

### VII. Facts 

### 1. Evidence 

### presented at 

### the hearing on the motion to suppress Appellant and her husband Rodney Boyett were suspected by the Paris police department ofengaging in "pill runs," which is described as the purchasing ofpseudoephedrine in small quantities from multiple pharmacies not for medicinal purposes, but as an ingredient needed to manufacture methamphetamine. (RR, 9- 15). Deputy SheriffAmis focused his attention on Appellant and Rodney Boyett based on information he could receive from a computerized pharmacy pseudoephedrine sales reporting system. (RR, 9-10). On September 24, 2013, Amis requested that Officer Foreman ofthe Paris police to assist him in the investigation. (RR, 9) Amis had detected that Appellant had just purchased a quantity ofpseudoephedrine at the CVS pharmacy at 507 Clarksville and he wanted Foreman to try to visually confirm whether Rodney Boyett would go to a second CVS pharmacy to make a pseudoephedrine purchase atthatpharmacy. (RR, 13-14). The purchases made prior to September 24, 2013 were deemed suspicious because Appellant and Rodney Boyett "had the same address on their driver's license[s] and were buying pills in the Paris area at different pharmacies in a close time frame." (RR, 12). Further, Foreman believed Appellant and Rodney Boyett lived in Rattan, Oklahoma and that "[ o]verthe last several years it [had been] very 14common for people involved in methamphetamine production in Oklahoma to
come to the Paris area and buy pills in an attempt to avoid detection by law enforcement in the area where they live." (RR, 14). Foreman had been involved in ten to twenty investigations of "pill run" cases over the last several years all involvedOklahomaresidents. (RR, 15). All involvedtraffic stops. (RR, 59-60). Appellant, Rodney Boyett, and their vehicle were located by Foreman at the LamarAvenue CVS. (RR, 16-17). Appellantand Rodney Boyett leftthat CVS and went in the Home Depot store for ten to twenty minutes. (RR, 16-17). Appellant and Rodney Boyett then exited Home Depot and went to Walmart. (RR, 19). Foreman, Amis, and Moore, each traveling in their own unmarked police vehicles, followed Appellant and Rodney Boyett. (RR, 19-20). Appellant and Rodney Boyett went inside the Walmart for a short while, and then left and traveled "back toward Oklahoma." (RR, 17-21). Foreman explained the significance with this activity as follows: Walmart has a pharmacy that sold pseudoephedrine and sold other items associated with the manufacture ofmethamphetamine, such as Coleman camp fuel, liquid Heet, Drano products, coffee filters, rubber tubing, and peroxide. (RR, 20). Further, Foreman explained that "[P]ersons usually who come to Paris to buy pseudoephedrine for

I the illegal purpose ofmanufacturing methamphetamine make other stops to pick up the other ingredients." (RR, 20). To Foreman's knowledge, the stops occur at
15Home Depot, Atwoods, Tractor Supply, Walmart, Walgreens, and CVS. (RR, 20- 21). Foreman and the other officers followed Appellant and Rodney Boyett after they headedtowardNorthMain (Highway 271) from the Walmart. (RR, 21). In the 1100 block ofthe northeast loop, Foreman saw what he characterized as a traffic violation, failure to maintain a single lane, which he described as a vehicle's leftsidetires crossing overthe centerline into the left lane before goingback. (RR, 21). Foreman conducted a traffic stop. (RR, 22). He waited to signal Appellant's carto stop because "therewasreally heavytraffic
..." (RR, 22). After the vehicles exited from the loop onto North Main, Foreman was able to "conduct" the stop around 5:00 p.m. because Appellant and Rodney Boyett had to stop at a red light (at the intersection ofMain and Stone Avenue). (RR, 23, 36). Foreman made contact with Appellant and Rodney Boyett, which he described as follows: "I identified myself, explained as to why [they] had been stopped, asked for identification. I get that identification. I asked [Rodney Boyett] to exit the vehicle so I can speak with him and began talking to him about his activity for the day
...[A]sked him if they had purchased pseudoephedrine, where they had purchasedit." (RR, 21-25, 36). Foreman said that Rodney Boyett told him "they had purchased pseudoephedrine at Walmart." (RR, 25-26). Foreman believed Appellant was not
16being truthful because Amis had not received a report of such a sale. (RR, 26). Foreman's next question was whether Rodey Boyett "used methamphetamine," to which, according to Foreman, Rodney Boyett replied that he did. (RR, 26). Foreman then asked Appellant "ifhe had any ingredients used for the purpose of manufacturing methamphetamine in the vehicle," and was told "that he (Rodney Boyett) had liquid heet inside the vehicle." (RR, 26). Foreman clarified that before getting that response he told Rodney Boyett that the police knew that Appellant and Rodney Boyett had just purchased pseudoephedrine at different locations in Paris in a short timeframe, and that he was asking about "toluene, camp fuel, fuel, Red Devil Lye, liquid heet, peroxide." (RR, 28-29). Foreman then spoke with Appellant. (RR, 30). She told Foreman that she did not use methamphetamine orhave any ingredients to make methamphetamine. (RR, 30). Within five minutes afterhe stopped the vehicle, and without a warrant, Foreman "went into their vehicle to search
...for the ingredients used to manufacture methamphetamine." (RR, 30-32). Foreman described the search being based on "probable cause to believe thatthere was evidence ofa crime in the vehicle." (RR, 32). He did not specify what crime orevidence. In the passenger compartment ofthe vehicle, Foreman located two boxes containing 20 pseudoephedrine tablets each, two bottles of liquid heet, rubber tubing, and three bottles of hydrogen peroxide. (RR, 33, 65). Foreman seized
17those items and then placed Appellant and Rodney Boyett under arrest for "possession of certain chemicals." (RR, 32-34, 65). See Tex. Health & Safety Code § 481.124(a) (2013). Foreman arranged for the transport ofAppellant and Rodney Boyett to the police department, and seized their vehicle. (RR, 33-34). Foreman stated that before towing the vehicle, someone would have made an inventory search ofthe vehicle. (RR, 34). After she was booked in, Appellant was twice interviewed by Foreman and Officer Moore in the CID room. (RR, 36-40). Although admitting that she used methamphetamine, Appellant would not admit to transporting anything with the intent to manufacture methamphetamine. (RR, 41-42). Appellant was returned to the booking area where she may have heard Foreman and Moore discussing whether they should interview Rodney Boyett. (RR, 42-43). According to Foreman, Appellant then asked ifshe could speak with the officers a second time
so that she couldtell them "thetruth." {RR, 43). Foremanclaimedhe learned "just
a little bitmore" because: "(S)he (Appellant) did indicate that liquid beet was used to manufacture methamphetamine. She said that she had used methamphetamine the previous day by shooting it up with a syringe, that her and Rodney both had used methamphetamine the previous day after he had gotten offwork. They both used with a syringe.
. . . She said that the items found in hervehicle were going to be used for them to get methamphetamine.
. . . She had talked about Rodney Boyett cooking methamphetamine. It was cooked on a shed on their property, in relation oftheir property to Mr. Boyett's father's house, heruse ofmethamphetamine, I believe, two to three times a week
.... 18She said that she didn't know how to cook, but she had been present while itwas cooked, butthat she does notknowhowto cookit.
.." (RR, 44-45,49). Rodney Boyett was kept at the police department overnight because the officers wanted to ask him questions, but Rodney Boyett needed sleep and "it had been a very long day." (RR, 50). Thus, Rodney Boyett was not interrogated until the following morning. During the interrogation the following morning, Foreman spoke with Rodney Boyett about his methamphetamine use. (RR, 51). Rodney Boyett showed a needle mark on his arm to Foreman, where he had injected methamphetamine and advised that he: (1) used methamphetamine since age 14; (2) learned how to produce methamphetamine while working in the construction business; and (3) had been making methamphetamine in a shed on his property in Oklahomausingthe "redphosphorous method." {RR, 51-52). Rodney Boyett testified that before the formal interrogation shown on the recording, Foreman refused to allow him to speak with an attorney and told him that unless Rodney Boyett told him what he wanted to hear, his vehicle would be taken from him. (RR, 79-80, 92). Rodney Boyett also stated that recording failed to include at the end a discussion about whether Rodney Boyett had earned the return ofhis vehicle. (RR, 81-82, 94). Foreman earlier declared that no promises
orthreats were made against Appellant andRodney Boyettin connectionwiththeir providing information about their crime. (RR, 38, 42, 45, 46, 48, 53, 58, 65-66). 19With one exception, Foremanwas never asked to specifically deny the accusations in that regard made by Appellant or Rodney Boyett. (RR, 69). Foreman admitted that he encouraged Rodney Boyett to speak with him without waiting to consult with an attorney, whichcouldtake "amonth" ormore. (RR, 46). Rodney Boyett also testified that soon after he arrived at the police department, Foreman asked him questions about whathe orAppellanthad planned to do with the items found inthe truck. (RR, 85-86). Although Rodney Boyettwas in custody, noMiranda warning was provided in connection with that questioning. Rodney Boyett offered Foreman an innocent explanation for his possession ofeach of the items. (RR, 95-96). Appellant confirmed these events, adding that the officers would not allow her to contact her children, make any arrangements for
care oftheir animals, or make any phone calls. Appellant also stated that Moore tried to compel her to make an incriminatory statement, testifying that Moore told her: "I know what y'all are doing. I know that y'all are cooking drugs. I know that y'all are meth users, and you're going to tell us this. Because ifyou don't, we can tell the Judge and the DA whatever we want, whatever our imagination can come up with, that's what we'll tell them. And they won't believe you. They will believe us. We've been inthis for too manyyears." (RR, 107). Appellant stated this questioning prompted her to ask for a lawyer, to which Moore replied, "No, you're going to talk to us first." (RR, 107). Appellant further statedthatMooretoldher: 20

### "[Y]ou're looking at going to prison for 10 years, and you're not going to get to see them step-kids and your family for a long time. You're going to tell us what we want to know. And ifyou do this, then you can go home, and this will all just go away. If

### you tell us what we want to know, what we wantto hear, then we can talk to the DA, and it will all just work itselfout. There won't be no jail time, and you getto go home." (RR, 

### 107-108). 2. Evidence

### presented to prove guilt The evidence ofguilt came in the form ofa writtenjudicial confession in which Appellant admitted that she had agreed with Rodney Boyett at some point thatthey would engage in conductthatwould constitutethe offense ofmanufacture ofthe controlled substance, methamphetamine, in an amount ofone gram ormore but less than four grams, and in pursuance to that agreement performed the overt act ofpossessing or transporting a chemical substance, to wit: liquid HEET and peroxide, with intent to unlawfully manufacture methamphetamine. (CR, 181, 5; RR, 

### 178).

21

### VIII.SummaryoftheArguments Appellant presents the following arguments: First, Appellant will argue that the trial court erred when it denied Appellant's motion to suppress evidence because the evidence was illegally obtained as a result ofan unreasonable seizure ofAppellant without a warrant and without reasonable suspicion that he had been
or would soon be engaging in criminal activity, including for any offense under Texas Transportation Code § 545.060. Second, Appellant will argue that the trial court erred when it denied Appellant's motion to suppress her recorded statement because: (1) it was given in response to custodial interrogationby the police; (2) it
was obtained as a result ofher illegal arrest; and (3) it was not shown to be freely and voluntarily made without compulsion orpersuasion as required by Texas Code ofCriminal Procedure Article 38.21. Finally, Appellant will argue that thejudicial confession offered in support ofherpleaofguilty was insufficientto show guilt of criminal conspiracy, which is required by Texas Code of Criminal Procedure Article 1.15. Appellant 

### will ask this Court to reverse the Judgment and sentence and: (1) find and declare that Appellant's motion to suppress should have been granted; (2) order that Appellant is entitled to withdraw her plea ofguilty, and (3) remand this
case for a newtrial.

22

### IX. Argument 

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

### 545.060. i. Introduction The police in this case obtained evidence using tactics that violated Appellant's rights under the Fourth Amendment and Texas Code of Criminal Procedure Article 38.23(a). After the trial court denied Appellant's motion to suppress evidence, Appellant electedto change herplea from not guilty to guilty. If 

### this ruling was erroneous, then Appellant's plea was involuntary or conditional. She is thus entitled to have this Court review the correctness ofthe trial court's decisions about the admissibility of the evidence. 

### See Gonzales v. State, 966 S.W.2d 521, 523 (Tex. Crim. App. 1998) and 

### Kraft v. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988). And ifthis Court determines that Appellant's objections to the seized evidence has merit, it should set aside thejudgmentbased on the plea, and remandthe case for anewtrial. The State argued that: (1) Appellant was not initially illegally seized when Rodney Boyett was required by a police officer to stop the vehicle, in which she
was a passenger, along a highway and then detained, and (2) the information gathered as a result ofthe seizure and a subsequent warrantless, but ostensibly 23legal, search of Appellant's vehicle constituted probable cause for a valid warrantless arrest. The State further argued (and the trial court found) that the recorded statements obtained from Appellant and Rodney Boyett after they were arrested were not coerced, but rather free ofcompulsion, and were not tainted by police action beforehand. Appellant argues that none ofthese arguments (and the trial court's decisions) were supported by facts or legally correct. Appellant thus requests de novo review ofthose rulings by this Court. See Tex. Rule App. Proc. 25.2(a)(2)(A) (2015). The first issue is whether the stop ofAppellant's vehicle was based: (1) on observation ofa traffic offense, or(2) reasonable suspicion thatthe occupants were engaged in other criminal activity. Both ofthose hypotheses were offered by the State as a legalbasis for a temporary investigative seizure ofthe occupants. Anotherissue is whetherthepolice developedprobable cause to believethey would find evidence ofa crime withinthe vehicle before they searched it without a warrant. It must also be determined whether any statements made during the detention (traffic stop) were obtained legally. Third, this Court must decide whether the recorded statements ofAppellant
were improperly compelled by improper threats, deception, or as a result of an illegal arrest.

24

### Finally, another issue is presented. Appellant was scheduled to be tried jointly with Rodney Boyett before the same jury. Appellant assumed, however, that the State would not seek to use the statements the police obtained from Rodney Boyett as evidence againsther. Thus, the admissibility ofRodney Boyett's statements as to Appellantwas notraised inhermotionto suppress. However, this Court might hold those statements were voluntary. If

### along with that holding, the Court agrees that this case must be remanded for a new trial and the State demands both ajointtrial and use ofRodney Boyett's statements to show the conspiracy, then the issue will arise. It 

### would become appropriate for examination by this Court. Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App. Dallas 2009, nopet.). Thus, Appellant suggests that this Court should declare that the trial court would need to take appropriate actions to prevent any use ofsuch statements as evidence against Appellant. This is because even assuming that the State will be able to show there was a conspiracy as alleged, the co-conspirator exception to the hearsay rule would clearly be inapplicable. Rodney Boyett's arrest and separation from Appellant before she made the statements necessarily precluded any further concerted action between them, so any alleged conspiracy ended upon the separation. This hearsay exception applies only to statements made during the existence ofthe conspiracy and in furtherance ofit. Carroll v. State, 139 S.W.2d
25821, 823 {Tex. Crim. App. 1940); 

### see also Byrd v. State, 187 S.W.3d 436, 441 {Tex. Crim. App. 2005) (discussing 

### Krulewitch v. United States, 336 U.S. 440 (1949) as the startingpoint for howto apply Tex. RuleEvid. 802(e)(2)(E)). 

### ii. Standard ofreview Ifthe trial court makes express findings offact, as the court did in this case (CR, 195), this Court reviews the evidence in the light most favorable to the trial court's ruling and determines whether the evidence supports the factual findings. 

### Valtierra v. State, 310 S.W.3d442, 447 (Tex. Crim. App. 2010). Whetherthe facts known to the officer amount to reasonable suspicion is a mixed question oflaw and fact, and is reviewed by this Court de novo. 

### State v. Mendoza, 365 S.W.3d 666, 669-670 {Tex. Crim. App. 2012). 

### iii. Lawregarding investigativedetentions There are three types of police-citizen interactions: (1) consensual encounters that do not implicate theFourth Amendment; (2) investigative detentions that are Fourth Amendment seizures oflimited scope and duration that must be supported by a reasonable suspicion ofcriminal activity; and (3) arrests, which are reasonable only if supported by probable cause. 

### Wade v. State, 422 S.W.3d 661, 667 {Tex. Crim. App. 2013). To determine when a consensual encounter becomes a detention, under 

### UnitedStates v. Mendenhall, 446 U.S. 544, 554 (1980), courts must take into account the totality ofthe circumstances ofthe

26interactionto decide whether a reasonablepersonwould have felt free to ignorethe police officer'srequest orterminate the consensual encounter. Wade, id. at 667. If ignoring the request or terminating the encounter is an option, then no Fourth Amendment seizure has occurred. Id. But, ifan officerthrough force ora show of authority succeeds in restraining a citizen in his liberty, the encounter is no longer consensual. California v. Hodari D., 499 U.S. 621, 627-628 (1991). And, the question of whether the particular facts show that a consensual encounter has evolvedinto a detention is a legal issuethat is reviewed de novo. Wade, id. at 668. Nervousness alone does not constitutereasonable suspicion. Hamalv. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012). Refusal to cooperate with an officer during a consensual encounter does not constitute reasonable suspicion. Brown v. Texas, 443 U.S. 47, 48-49 (1979). And, nervousness combined with a refusal to cooperate does not form reasonable suspicion. Wade, id. at 668-669. In Wade, the defendant, an electrician, was spending his lunchhour sitting in his work truck in the near-empty parking lot ofa public boat ramp. Id. at 665. It
was mid-May in Texas, so he had his truck engine running and the air conditioner
on. Id. Two game wardens, who were investigating fishing violations, approached the defendant's truck to "make sure the occupant was okay." Id. One warden thought that the truck was "out ofplace" and "suspicious" because he did not see a

27

### boat or any fishing equipment, but had a large box trailer attached with "Wade Electric" printed onthe sides. 

### Id. The areawas not a "highcrime area." 

### Id. The defendant rolled his window down and told a warden he was eating lunch, butthe warden thought that was a lie because he did not see any "evidence" oflunch such as food, wrappers, or a cooler. 

### Id. The defendant said that he lived "nearby," but his license, turned over on request, showed that he lived 15 miles away. 

### Id. The defendant explained that he was "looking at purchasing a house close to the boat ramp," which a warden also considered a lie. 

### Id. The defendant
was "overly nervous." 

### Id. After asking the defendant ifhe had any weapons or anything the warden "should be aware of," the defendant asked "why are you doing this?" 

### Id. The warden ordered the defendant to step out ofthe vehicle for the purposes of conducting a pat-down for the safety ofthe warden. 

### Id. The defendant then admitted there was apipe in the truck, and upon a search, a warden found the pipe and a small amount of methamphetamine. 

### Id. The Court of Criminal Appeals held that the defendant's statement about the pipe in his truck
was derived from the warden's illegal detention and was "fruit ofthe poisonous tree," and therefore that statement could not provide probable cause for searching the defendant's truck. 

### Id. Thus, in orderto lawfully conduct an investigative detention, an officermust have reasonable suspicion that an individual is involved in criminal activity.
28Wade, 

### see above; Balentine v. State, 

### 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion requires more than a hunch, and it exists only when an officerhas specific, articulable facts that, taken togetherwithreasonable inferences from those facts, would lead the officer to reasonably conclude that the person detained is, has been, or soon will be, engaging in criminal activity. Fordv. State, 

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

### 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The reasonable-suspicion determination is an objective one made by considering the totality ofthe circumstances. Ford, id. 

### at 492-493. The reasonable suspicion test calls for consideration of specific, articulable facts and reasonable inferences therefrom based on the totality ofthe circumstances. Delafuente v. State, 

### 414 S.W.3d 173, 177, 178 (Tex. Crim. App. 2013).Further, "[A] law enforcement officer may stop and briefly detain a person for investigative purposes on less information than is constitutionally required for probable cause to arrest." Foster v. State, 

### 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (citing Terry v. Ohio, 

### 392 U.S. 1, 22 (1968)). And, "there is no requirement that a traffic regulation must be violated in order for an officer to have sufficient reasonable suspicion tojustify a stop ofa vehicle." State v. Alderete, 

### 314 S.W.3d 469, 473 (Tex. App. El Paso 2010, nopet.). 

### Rather, an officer may bejustified in 

### stopping a vehicle based upon a reasonable suspicion of "some other criminal 29

### offense." Id. See also State v. Houghton, 384 S.W.3d 441, 446-447 (Tex. App. FortWorth 2012, nopet.). 

### iv.There was no justification for the stop of Appellant under the Transportation Code, and this alone should cause this court to reverse and remandthis casebackto thetrialcourt. 

### The State's initial position was that Foreman could stop the vehicle, in which Appellant was a passenger, for an observed violation of § 

### 545.060 ofthe Texas Transportation Code. § 545.060 requires a vehicle to be driven within the confines of a single lane and prohibits movement into another lane, if that movement cannot be made safely. Tex. Transp. Code § 

### 545.060 (2013). The trial court believed the detective expressed specific, articulable facts tojustify the idea that Rodney Boyettcommittedthe traffic offense whenhe allegedly "moved out of his lane [to the left] toward the center of [Loop 286]" in 

### combination with the detective's testimony that he "was unable to make an immediate traffic stop because ofheavytraffic." Loop 286 is a four-lane divided highway, with two lanes provided for travel in each direction. According to Foreman, although Appellant and Rodney Boyett
were traveling in the right-hand lane, he saw (from behind) the driver's side tires at
onepoint cross "overthe centerline into the left lane before going back." (RR, 21). Appellant asserted Foreman's description ofwhat he saw was insufficient to fully describe a violation of § 

### 545.060. The safety of (or danger presented by) the
30

### movement ofAppellant's vehicle would depend on several factors apart from the painted line dividing the roadway into lanes, and most particularly the proximity and location and speed ofothervehicles relative to Appellant's vehicle. There was, however, no testimony concerning those otherfactors. There was no testimony that the vehicle swerved (as perhaps opposed to drifted) across the line, that Rodney Boyett lost control ofthe vehicle, orthreatened any other person or object then on the road. The trial court filled in these blanks by inferring there were safety concerns merely because Foreman testified he decided not to immediately signal Appellant to pull over because of "heavy traffic." This vague statement did notjustify the inference. The amount of time and distance involved between the purported offense and the stop was also not addressed. (RR, 22-23). The trial court apparently believed that the applicable law was found in Williams 

### v. State, 

### 06-07-00132-CR, 2008 Tex. App. LEXIS 2920 {Tex. App. Texarkana, April 24, 2008, nopet.) 

### (not designated for publication). However, the driving observed in Appellant's case was unlike that involved in Williams. 

### In Williams, 

### the driving was described as "traveling into the lane designated for oncoming traffic on the left then backtoward the right ditch along the right side of the road." Id. 

### at *4.

31

### Movements out of a lane oftraffic, especially on a road having multiple contiguous lanes for the same direction oftravel, are not categorically prohibited under § 545.060. Such movements may be necessary to avoid roadway obstacles. In fact, defensive driving often requires such movements. Maintaining the vehicle's position entirely in a single chosen lane is required only as "nearly as practical." As recently stated by the State Prosecuting Attorney, "[T]he practicality requirement of§ 545.060(a) prohibits indiscriminate straddling, aimless weaving,
or capricious lane changing, but it allows departure from the lane for sensible reasons." State'sBriefat 7, filed May 22, 2015 in Cause No. PD-0072-15, Leming
v. State, petition granted from Leming v.**State~** 

### 454 S.W.3d 78 (Tex. App. Texarkana 2014, pet. granted). Without further details about the lack ofsafety or practicality in Rodney Boyett's driving, even given the benefit of logical inferences, Foreman did not describe a violation of § 545.060. Cf Johnson v. State, 365 S.W.3d 484, 489 (Tex. App. Tyler 2012, nopet.) (lack ofsafety could be shown by single, short, slight crossing ofcenter line because officerpointed out that it "was dark at the time and the road was narrow, highly traveled, and had no shoulder"). Appellant's case is similar to Leming v. State, 454 S.W.3d 78 (Tex. App. Texarkana 2014, pet. granted), where this Court opined, "[W]hen one takes the speed ofthe traffic and the totality ofthe circumstances into account, we cannot
32

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

### an unsafe manner. Therefore, we find the trial court's ruling that the stop was prompted by the officer's observation ofa traffic violation to be unsupported by the record." Id. 

### at 83. This Court made such finding despite the fact that the officer "indicated that rather than following Leming as long as he did, he 'would have liked to stop him way earlier
...but the traffic was too heavy'." Id. 

### at 81. See also Aviles 

### v. State, 

### 23 S.W.3d 74, 77 (Tex. App. Houston [14th Dist.] 2000, no pet.) 

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

v. The information about pseudoephedrine purchases**d~d** 

### not amount to reasonable suspicion to initiate a Terry investigative detention The trial court also erred in finding that Foreman possessed reasonable suspicion to stop the vehicle to investigate Appellant and Rodney Boyett for criminal activity under Terry. 

### Foreman never expressed the idea that he could or should stop the vehicle apart from the traffic offense despite his presumed understanding of the legal principles involved. Further, all he knew was that persons who had previously (within a time frame not described) made suspicious (but not illegal) purchases ofpseudoephedrine had again made a small purchase of pseudoephedrine at one ortwo CVS pharmacies in Paris, and had also stopped at a

33Home Depot and a Walmart store, where they might have made purchases ofitems thatmightbeusedinthe clandestinemanufacture ofmethamphetamine. Far too much conjecture was involved for Foreman to conclude that he had reasonable suspicion or probable cause (as opposed to a hunch) that the occupants of the vehicle were in possession of contraband or actively preparing to manufacture methamphetamine. There is a difference between "questionable" or "unexplained" and a "distinct possibility of criminality." In this regard, in 

### Davenport v. State, 299 S.W.3d 859, 861 (Tex. App. Eastland 2009, 

### nopet.), the facts involved a purchase of a large quantity of pseudoephedrine, and the occupants ofthe vehicle were reacting to the sight ofa police car. To Appellant's knowledge, no other court has relied on 

### Davenport. And, Appellant purchased 40 pills, which does not constitute a "large quantity." (RR, 33, 65). In another case, the court of appeals seemed to conclude manufacture of methamphetamine could be inferred, to the level ofprobable cause, as the reason for purchases of "suspiciously large quantities of pseudoephedrine and other products [generally] associated with the illicit production ofmethamphetamine." 

### State v. James, Nos. 03-07-00210-CR, 03-07-00211-CR, 03-07-00212-CR, 03-07- 00213-CR, 2007 Tex. App. LEXIS 8695, 2007 WL 3225374, at *4 (Tex. App. Austin, Oct. 31, 2007, 

### no pet.) (mem. op.) (not designated for publication). In 

### James, the defendant appeared to have purchased 10 to 20 boxes (200 to 400 pills)
34in a short amount oftime (unlike Appellant, who purchased 40 pills). Still, James has no binding effectonthis Court. 

### vi.There was no justification for the search of Appellant's vehicle andherarrest Appellant's vehicle was not legally stopped. Other than purportedly witnessing a violation of the transportation code (which, as Appellant shows above, did not occur), the only additional information Foreman obtained before conductingthe warrantless search ofthe vehicle was a statementby Rodney Boyett that he had used methamphetamine previously. This is not reasonable suspicion thatripenedto probable cause, which isrequired for the search. The trial court apparently believed that Rodney was deceptive in failing to admit a purchase by him of pseudoephedrine at the Lamar Street CVS or in becoming silent once that accusation was made. (CR, 196-197;**,~** 7 and 13). The trial court misinterpreted the testimony. Foreman said, "Well, I had advised [Rodney Boyett] that I knew he and [Appellant] had just purchased pseudoephedrine at different locations in Paris in a short timeframe." (RR, 28). Thus, there was no testimony about whether Foreman had information about (or accusedAppellantot) a purchase ofpseudoephedrine atthe second CVS store. Rodney Boyett was under no obligation to even respond to the accusation. Rodney Boyett's silence onthe matter and his admission that he had used meth in the pastneitherproved nor suggested anything. In certain circumstances, deceptive 35answers to questions normally associated with the traffic may rise to 

### reasonable suspicion ifcoupled with other facts. However, Rodney Boyett's answerpertained to something unrelated to do with the traffic stop and the validity ofthe search depended onprobable cause, and not reasonable suspicion. And withthe exception ofRodney Boyett's silence, Foreman learned or observed nothing new during the stop that would reasonably lead to any heightened suspicion that wouldjustify a warrantless search. 

### See, e.g., Freeman v. State, 62 S.W.3d 883, 888 (Tex. App. Texarkana 2001,

### pet. ref.) (prolonged detention during a traffic stop was deemed reasonable because the passenger and driver gave inconsistent answers to questions regarding the use of the rental car, and the officer smelled marijuana in the vehicle); 

### White v. State, 574 S.W.2d 546, 547 (Tex. Crim. App. 1978) (No reasonable suspicion merely because the driver was observed driving aimlessly in a mall parking despite the fact that had been arash ofpurse snatchings inthe parking lot); 

### Lopez v. State, 223 S.W.3d 408, 415 (Tex. App. Amarillo 2006, 

### no pet.) (Reasonable suspicion existed for the further detention ofthe defendant who
was stopped in a high crime area and the officer observed a plastic baggie in the
crease ofthe gas cap compartment). Rodney's admission that he had used methamphetamine at some time in the past was too tenuous to suggest that any recent purchase ofpseudoephedrine was related to a present intent to manufacture methamphetamine. Yet, that is the only
36

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

### Without any evidence ofthe suspected

### purpose ofthe pseudoephedrine purchase, the officer engaged in a search for "mere evidence." "Mere evidence is evidence connected with a crime, but does not consist of fruits, instrumentalities, or contraband." Reeves v. State, 

### 969 S.W.2d 471, 485 (Tex. App. Waco 1998, no pet.). 

### Such a search is permissible only upon establishment ofa particular set of circumstances: "(1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense 

### or evidence that a particular person committed that offense, and (3) that the property oritems constituting evidence to be searched for or seized are located at or on the particular person, place or thing to be searched. " Id. 

### at 483 (emphasis added). Here, there was no evidence that any specific offense was committed. Nor was there any evidence showing that the specifically described property or items that are to be searched for or seized constitute evidence of that offense 

### or evidence that a particular person committed that offense. "Thus, it appears that the Legislature has adopted more restrictive rules for searches for 'mere evidence' than those enunciated by the United States Supreme Court. Under our system offederalism, a state is free as a matter ofits

37own law to impose greater restrictions on police activity than those the Supreme Courtholds to benecessary upon federal constitutional standards."

### Id. at484. Accordingly, to legallyjustify the search, Foreman needed to articulate why he thought anything in vehicle driven by Appellant on that day was intended by them to be used to make methamphetamine. All Foreman knew was that the persons in the vehicle made two purchases ofpseudoephedrine with a possible purpose of making methamphetamine. Foreman had no evidence or reasonable beliefto conclude that Appellant and Rodney Boyett were actually preparing to manufacture methamphetamine. One cannot deduce an association with methamphetamine merely from acquisition or possession of pseudoephedrine. Thus, Foreman's knowledge and beliefis nothing more than a hunch. There was also no evidence concerning the amount ofpseudoephedrine required to make any given amount ofmethamphetamine orthat a sufficientquantity ofpseudoephedrine
was reasonably expectedto be located inthe vehicle. This was especially true because Foreman conducted the search, seized the items, and then placed Appellant and Rodney Boyett under arrest for "possession of certain chemicals." (RR, 32-34, 65). See Tex. Health & Safety Code § 481.124(b)(3) (2013). This is clearly an illegal arrest because less than three containers packaged for retail sale and less than 300 tablets ofpseudoephedrine
were found in the vehicle. This statute allows probable cause for an arrest ifthe
38defendant possesses "in one container, vehicle, or building, phenylacetic acid, or
more than nine grams, three containers packaged for retail sale, or 300 tablets or capsules ofaproduct containing ephedrine orpseudoephedrine."Id. This evidence
was not present in this case, as only two retail packages containing 20 tablets each
were found in Appellant's vehicle. "[A] Fourth Amendment Terry detention is not a custodial arrest" for purposes ofMiranda or article 38.22 ofthe Texas Code ofCriminal Procedure." State v. Sheppard, 271 S.W.3d 281, 289 {Tex. Crim. App. 2008) (citing Terry, 392 U.S. at 30-31). Here, the questioningby Foremanhad nothing to do withthe traffic offense. Foreman had no interest in the alleged traffic offense, it was merely used
as basis to try to find out why Appellant and his wife had been making purchases of pseudoephedrine in Paris. Thus, not only was the stop unreasonable, the continued detention for an entirely different purpose was also unreasonable. "The FourthAmendmentto the United States Constitution, made applicable to the States through the Due Process Clause ofthe Fourteenth Amendment, states that '[t]he right ofthe people to be secure in their persons...against unreasonable
...seizures, shall .not be violated."' Amador v. State, 275 S.W.3d 872, 878 {Tex. Crim. App. 2009) (quoting U.S. Const. Amend. IV). A detention becomes unreasonable when it is not reasonably related in scope to the circumstances which justified the detention in the first place. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.
391997). Seizing someone for a legitimate purpose cannot reasonably encompass usingthe detentionfor an entirely differentpurpose. This was the law before Crittenden v. State, 899 S.W.2d 668 {Tex. Crim. App. 1995), in which the Court of Criminal Appeals appeared to hold that "an objectively validtraffic stop is notunlawful under [Texas Constitution] Article 1, § 9 merely because the detaining officer had some ulterior motive for making it." The majority did not expressly adopt Judge Baird's conclusion that the new "objective standard" would preclude review of the actions committedby the officer in conducting a stop as well as the reasons behind the traffic stop. 899 S.W.2d at 678 (Baird, J., dissenting). And as noted in footnote 6 ofCrittenden, there is a reason why the Supreme Court ofthe United States had expressed concern over whether objectively valid police conduct in initiating a stop ofa vehicle for a traffic offense would provide a blanketjustification for its use for a further search or seizure. "Bait and switch" is
as equally reprehensible in invasions ofprivacy as itis in generating sales ofgoods
or services. Appellant argues that the lack of reasonable suspicion does not disappear or change or become irrelevant merely because Rodney Boyett committed a traffic offense (whichhe did not). Thus, the Supreme Court's decision in Whren v. United States, 517 U.S. 806, 813 (1996) did no more in the Fourth Amendment contextthat Crittenden did inthe context ofTexas ConstitutionArt. 1,
40

### § 9. This is clear in the more recent statement by the Supreme Court that "the tolerable duration ofpolice inquiries inthe traffic-stop context is determined by the seizure's 'mission'- to address the traffic violation that warranted the stop." Rodriguezv. UnitedStates, 515 

### U.S._, 135 S.Ct. 1609, 1613-1616 (2015). Recently, the Tenth Court of Appeals addressed a similar situation. See Richardson v. State,_ 

### S.W.3d, No. 10-14-00217-CR, 2015 Tex. App. LEXIS 7066 (Tex. App. Waco, July 9, 2015) (designated for publication). In Richardson, 

### believing that the defendant may have attempted to pick up a prostitute or engage in a drug transaction (although neither the prostitute ever entered the defendant's vehicle, nor did the officer see any actual drug transaction), the officer stopped the defendant for "failing to stop at a designated point in the intersection." Id. 

### at *5-6. Two minutes into the stop, the officers learned that the defendant had no outstanding warrants, and the defendant told the officers that he had no past drug charges. Id. 

### at *6. The officers never issued the defendant a citation for the alleged traffic violation. Id. 

### This is the point where the traffic stop investigation
was fully resolved, and the defendant should have been allowed to leave. Id., 

### citingRodriguez, 

### 135 S.Ct. at 1612-1613 and Kothe v. State, 

### 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). However, the defendant was detained for at least an additional 13 minutes until a drug dog arrived, which alerted to the defendant's keys andthe driver's side door ofthe defendant's vehicle. Id. 

### at *6-7.
41InAppellant's case, Foreman admittedthathe made whatturned outto be an illegal traffic stop so that he can "make contact" with Appellant. (RR, 22). Thus, the evidence, including Appellant's statement that he had previously used methamphetamine, was obtained by the police illegally, and was gained as a result must be treated as the fruit ofan illegal seizure ofAppellant. "[A ]fter making a stop for a traffic violation, an officermayrely on all ofthe facts ascertained during the course ofhis orher contact with the defendant to develop articulable facts that wouldjustify a continued detention." Sims v. State, 98 S.W.3d 292, 295 (Tex. App. Houston [1st Dist.] 2003, nopet.); Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth 1998, nopet.). But, this assumes that the traffic stop was legal, and also where somethingwas observed in plainview or smelled. Interrogationnot relatedto thetraffic stop (as inAppellant's case) is a different matter. Courts have held that an officer may properly ask questions during a routine traffic stop that are "unrelated to the justification for the traffic stop" provided there is some otherfact supportingthe unrelated question. SeeArizonav. Johnson, 555 U.S. 323, 333 (2009) (Additional questioning that lead to a patdown search of
a vehicle occupant was supported by that occupant's discussion with officer of gang affiliation and recent criminal activity). However, this does not mean that an officer may begin questioning an occupant ofa vehicle with questions having no connection to the traffic offense, not prompted by anything observed before the
42detention reasonably should have ended. Thus, ifunreasonable seizures ofpersons
are to be prevented, such stops should not be approved under either 

### Terry or Whren. 

### See, e.g., State v. Rauch, 586 P.2d 671, 678 (Idaho 1978) ("[T]he history ofthe criminal law proves that tolerance ofshortcut methods in law enforcement impairs its enduring effectiveness."). Generally, the criminal law prefers "extrinsic evidence independently secured through skillful investigation" by the officers over reliance on a defendant's confession. 

### Mendez v. State, 56 S.W.3d 880, 891 (Tex. App. Austin 2001, 

### nopet.), quoting Connor v. State, 773 S.W.2d 13, 13-14 (Tex. Crim. App. 1989), 

### quoting Escobedo v. Illinois, 378 U.S. 478 (1964). In Appellant's case, there was a traffic stop that was clearly pretextual, and the
answers to questions propounded on Appellant and Rodney Boyett could not have formed the basis ofprobable cause to searchthe vehicle. 

### vii. Conclusion Thetrial court erredwhen it denied Appellant's motionto suppress evidence because the evidence was illegally obtained as a result ofan unreasonable seizure ofAppellant without a warrant and without reasonable suspicion that he had been
or would soon be engaging in criminal activity, including for any offense under Texas Transportation Code § 545.060. As a result, Appellant asks this Court to
reverse the Judgment and sentence andremand this case backto the trial court for a
newtrial.
43

### l. 

### Issue Two: The trial court erred when it denied Appellant's motion to suppress her recorded statement because: (1) itwas given in response to custodial interrogation by the police; (2) it was obtained as a result ofher illegal arrest; and (3) it was not shown to be freely and voluntarily madewithoutcompulsion or persuasion as required by Texas Code of Criminal Procedure Article38.21. 

### i. Theconfession was tainted bythe unlawful arrest Probable cause to search must be legally obtained. See Le v. State, 463 S.W.3d 872 (Tex. Crim. App. 2015), citing Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. 1980). Violations ofthe Fourth Amendment do not lead to a valid arrest. And, a confession obtained incident to an unlawful arrest is subject to suppression. State v. Crisp, 74 S.W.3d 474, 481 (Tex. App. Waco 2002, nopet.) (the investigative detention contemplated by Terry involves briefquestioning ofa truly investigatory nature); Vicioso v. State, 54 S.W.3d 104, 110, 111 (Tex. App. Waco 2001, no pet.) ("A 'voluntary' confession given after an illegal arrest is tainted, and, as 'a direct result of the arrest, must be excluded under article 38.23(a) ofthe Code ofCriminal Procedure."). Appellant's case is not a situation in which officers made some technical
error that invalidated the arrest; rather, there was a lack of probable cause to supportthe warrantless arrest. Thus, the arrest was clearly illegal, and the illegality weighs strongly in favor ofsuppression ofthe confession that would nothave been obtained aside from the coercive effect ofAppellant's arrest. See Farmah v. State, 883 S.W.2d 674, 679 (Tex. Crim. App. 1994). 44ii.

### Theconfession was coerced After she was arrested and in police custody at the station, rather than remain silent, Appellant chose to answer questions without the benefit ofcounsel because she: (1) was expressly denied access to counsel; and (2) was threatened with loss ofher children unless she told the officerwhat the officerwanted to hear, at which time this would all just go away. These claims were not denied by Foreman or Moore. The State bears the burden of establishing a knowing, intelligent, and voluntary waiver ofone's rights underMiranda 

### and Article 38.22. Leza v. State, 

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

### 309 S.W.3d 20, 24 (Tex. Crim. App. 2010); Tex. Code Crim. Proc. Art. 38.22 (2013). When considering whether a statementwas voluntarily made, a court looks to the totality ofthe circumstances surrounding the acquisition ofthe statement. Delao v. State, 

### 235 S.W.3d235, 239 (Tex. Crim. App. 2007). A confession is involuntary ifcircumstances show that the defendant's will
was overborne by police coercion. Delao, id. 

### at 240. If

### the record shows that there
was official, coercive conduct ofsuch a nature that a statement from the defendant
was "unlikely to have been the product ofan essentially free and unconstrained choice by its maker," the defendant's will was overborne. SeeAlvarado v. State, 

### 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). In a suppression hearing, the trial court is the sole trier offact andjudge ofthe credibility ofthe witnesses and the

45weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990). The trial courtmay accept orreject all orany part ofa witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's factual findings. Romero, 800 S.W.2d at 543. Ifthe trial court'sfactual findings are supported by the record, absent an abuse ofdiscretion, an appellate court does not disturb the findings. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991); Dancyv. State, 728 S.W.2d 772, 772 (Tex. Crim. App. 1987). On appellatereview, the Court normally will address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543; Vargas v. State, 852 S.W.2d43, 44 (Tex. App. El Paso 1993, nopet.). The Code of Criminal Procedure expressly allows the statement of an accused to be used against him 

### ifit appears that the statement was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Arts. 38.21 and 38.22. Apart from the statutory requirements, the admissibility of a confession is contingent on the accused being accorded "due course ofthe law of the land." Tex. Const. Art. 1, § 19; Collins v. State, 352 S.W.2d 841, 843 (Tex. Crim. App. 1961). A confession must not be taken under circumstances condemnedbythe decisions ofthe Supreme Court ofthe United States as violative
46

### ofthe Due Process Clause ofthe Fourteenth Amendment. Collins, 352 S.W.2d at 843. Ifthe reviewing court is convinced that a confession is inadmissible as a matter oflaw, it must "not hesitate to so hold." Collins, 352 S.W.2d at 843; see also Golemon v. State, 247 S.W.2d 119, 121 (Tex. Crim. App. 1952) and Prince v. State, 231 S.W.2d419, 421 (Tex. Crim. App. 1950). The Supreme Court of the United States has long held that certain interrogation techniques, either in isolation or as applied to the umque characteristics of a particular suspect, are so offensive to a civilized system of justicethatthey mustbe condemnedunderthe due process clause ofthe Fourteenth Amendment. Miller v. Fenton, 474 U.S. 104, 109 (1985), citing Brown v. Mississippi, 297 U.S. 278 (1936). Brown held that the use of involuntary confessions in state proceedings violated Brown's due process rights under the Fourteenth Amendment. InBrown, the coerciveness ofthe police tactics was not in doubt: the confession was exacted by torture orphysical violence. 297 U.S. at 281- 282. Subsequent cases have made clear that a finding of coercion need not depend upon actual violence by a governmental agent; a credible threat is sufficient. Arizona v. Fulminante, 499 U.S. 279, 287 (1991). "Coercion can be mental as well as physical and
...the blood ofthe accused is notthe onlyhallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206
47(1966); Reckv. Pate, 361 U.S. 433, 440-441 (1961); Rogers v. Richmond, 365 U.S. 534, 540 (1961); Payne v. Arkansas, 356 U.S. 560, 561 (1958). In sum, suspects must be protected from police overreaching. Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 2008). A defendant is deprived ofdue process oflaw ifhis conviction is founded, in whole orin part, upon an involuntary confession without regard to the truth or falsity ofthe confession, Rogers, 365 U.S. at 543-544, even thoughthere is ample evidence aside from the confessionto supportthe conviction. Jackson v. Denno, 378 U.S. 368, 376 (1964). Along these lines, an inculpatory statement is inadmissible as having been induced by an improper promise only if: (1) the statement was obtained as a result ofthe positive promise ofa benefit to the defendant, (2) the promise was made or sanctioned by one in authority, and (3) the promise was of such a character as would be likely to influence a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004); Hardesty v. State, 661 S.W.2d 130, 134 (Tex. Crim. App. 1984). Reviewing court looks to whether the circumstances ofthe promise would have made a defendant inclined to admit to a crime he did not commit. Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991). The analysis is objective: it is not based onthe actual truth or falsity ofthe information provided in response, but on the nature on its face of the inducement or encouragementinvolved. Martinez, 127 S.W.3d at 794-795.
48

### Thus, when there is uncontradicted evidence that a confession or inculpatory evidence is obtained by coercion, threats, or fear, such confessions or inculpatory evidence are inadmissible as a matteroflaw. Sinegalv. State, 

### 582 S.W.2d 135, 137 {Tex. Crim. App. 1979); Sherman v. State, 

### 532 S.W.2d 634, 636 (Tex. Crim. App. 1976); Farr v. State, 

### 519 S.W.2d 876, 880 (Tex. Crim. App. 1975). Because the State has the burden to prove the voluntariness of a confession, the State must satisfactorily negate the defendant's allegations ofcoercion in order to satisfy its burden ofproof. Gentry v. State, 

### 770 S.W.2d 780, 789 {Tex. Crim. App. 1988); Farr, 

### 519 S.W.2d at 880; Garcia v. State, 

### 829 S.W.2d 830, 833 {Tex. App. Dallas 1992, nopet.). 

### In this case, the trial court's conclusion that it did not find Appellant's testimony that she told Moore priorto her interview that she wanted an attorney to be "not credible" is not supported by any facts or circumstances. In fact, Appellant's claims matched the other questionable aspects of the treatment by Appellant and Rodney Boyett by the police. Contrary to the trial court's unsupported conclusion, Appellant's claim does not appear exaggerated. The trial court also found Appellant's claims about her conversation with Moore and the threats made by the officers shortly before the recorded interview
on September 24, 2013, to be incredible. Yet, the record does not support his finding. Appellant clearly described a threat (not being able to call orgo home, to
49take care ofherkids, unless she says what the officers want) that would make her decision to give up herright to remain silent "unlikely to have been the product of
an essentially free and unconstrained choice," as spoken of in Alvarado, 912 S.W.2d at 211. 

### iii. Conclusion The trial court erred when it denied Appellant's motion to suppress his recorded statement because: (1) it was given in response to custodial interrogation by the police; (2) it was obtained as a result ofhis illegal arrest; and (3) it was not shown to be freely and voluntarily made without compulsion or persuasion as required by Texas Code ofCriminal Procedure Article 38.21. Appellant asks this Court to reverse the Judgment and sentence and remand this case back to the trial court for anew trial. 

### 3. Issue Three: Thejudicial confession offered in support of Appellant's plea of guilty was insufficient to show guilt of criminal conspiracy, which is required by 

### Texas Code of Criminal Procedure Article 1.15. i. Argument A reviewing court must "ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. If the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute [the charged] criminal offense underthe totality of the circumstances, then that evidence, as a matter of law, cannot support a
50conviction." 

### Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, "[N]o trial court is authorized to render a conviction in a felony case, consistent with Article 1.15, based upon a plea of guilty 'without sufficient evidence to support the same."' 

### Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). "[S]o long as...ajudicial confession covers all ofthe elements ofthe charged offense, it will suffice to support the guilty plea. However, a stipulation of evidence orjudicial confession that fails to establish every element ofthe offense charged will not authorize the trial courtto convict." 

### Id. at 13-14; 

### Trevino v. State, 519 S.W.2d 864, 866 (Tex. Crim. App. 1975). A plea ofguilty ornolo contendere constitutes an admission ofguilt but does not authorize a conviction. 

### Cooper v. State, 537 S.W.2d 940, 943 (Tex. Crim. App. 1976). The state must introduce evidence into the record showingthe guilt ofthe defendant, and the evidence must be accepted by the court as the basis for itsjudgment. Tex. Code Crim. Proc. Art. 1.15 (2015); 

### see Tullos v. State, 698 S.W.2d 488, 490 (Tex. App. Corpus Christi 1985,

### pet. ref.). Thus, a conviction is voidable when based on a guilty plea that is not properly supported by evidence. 

### See also Valdez v. State, 555 S.W.2d 463, 464 (Tex. Crim. App. 1977) (Compliance with Article 1.15 is mandatory for stipulated evidence to be considered by court) and

### Duran v. State, 552 S.W.2d 840, 842-843
51(Tex. Crim. App. 1977) (A conviction must be reversed ifthe stipulated evidence does not comply with Article 1.15 and the other evidence presented is insufficient to support a conviction). In any guilty plea, Article 1.15 must be complied with, and the "sufficient evidence" requirement ofArticle 1.15 is an absolute requirement. See Landon v. State, 222 S.W.3d 75, 79 (Tex. App. Tyler2006, nopet.) and Baggettv. State, 342 S.W.3d 172, 175 (Tex. App. Texarkana 2011). In Baggett, this Court found that the requirements of Article 1.15 "
...[F]alls within the absolute or systemicrequirement category by its requirementthat 'in no event' shall a person be convicted on his orherplea without sufficient evidenceto support it." Id. And, this Court also concluded that "[A] claim oferror for noncompliance with it is not forfeited or waived by the failure to object." Id.; see Lopez v. State, 708 S.W.2d 446, 448-449 (Tex. Crim. App. 1986) (A violation ofArticle 1.15 is fundamental
error that may be considered for the first time on appeal or discretionary review). Finally, if no otherevidence supports the plea and finding of guilt, "error is shown." Id.; See also Menefee v. State, No. 12-07-00001-CR, 2010 Tex. App. LEXIS 6665, 2010 WL 3247816 (Tex. App. Tyler Aug. 18, 2010, nopet.) (mem. op., not designated for publication), on remand from Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009).

52The State purported to meet the requirements ofArticle 1.15 in this case by
use ofajudicial confession that merely affirmed the truth ofthe allegations in the indictment. There was a sworn statement by Appellant that "[a]ll of the facts alleged inthe indictment orinformation are true and correct" and "I committed and
am guilty ofeach and every act as alleged therein
..." (CR, 181). This presumably
means that there was evidence that Appellant had agreed with Rodney Boyett at
some point that they would engage in conduct at some point that would constitute the offense ofmanufacture ofthe controlled substance, methamphetamine, in an amount ofone gram or more but less than four grams, and inpursuance to that agreement performed the overt act of possessing or transporting a chemical substance, to wit: liquid HEETandperoxide, with intentto unlawfully manufacture methamphetamine. (CR, 5). Conspiracy to Manufacture or Deliver a Controlled Substance in Penalty Group 1 is a felony. Tex. Health & Safety Code§ 481.112(a) & (c) (2013). The elements of the offense charged against Appellant as described in Texas Penal Code § 15.02(a) are: (1) an agreement between the defendant and one or more other persons, with the intent that a felony be committed, that they or one ormore ofthem engage in conduct that would constitute the offense, and (2) he or one or
more ofthem performs an overt act 

### in pursuance 

### ofthe agreement. Tex. Pen. Code§ 15.02(a) (2013) (emphasis supplied). 53The statement used to show Appellant's guilt differs from the statutory elements in that the overt act was stated to have been performed "inpursuance 

### to" the agreement of the parties. (CR, 5). Perhaps if the statement had read "performed pursuant 

### to" the agreement, it would have met the requirement of Article 1.15. However, this is not how it was worded. "Pursuance to" lacks coherence and meaning. Further, "to" does not have the same meaning or connotation as "of." For instance, m 

### Tullos, 698 S.W.2d at 490-491, the court held that a confession to stabbing was not proof of assault by threat that was alleged in indictment. In 

### Thornton v. State, 601 S.W.2d 340, 342-343 (Tex. Crim. App. 1980),the courtruled that a confessionto forgery by making a false writing did not support a conviction for forgery by passing a forged writing. And in 

### Dinnery v. State, 592 S.W.2d 343, 348 (Tex. Crim. App. 1979), the court held that ajudicial confession is insufficient if it incorporates by reference allegations of the indictmentthat are inconsistentwiththe otherrecitations inthejudicial confession. As a result, the trial court should not have accepted Appellant's plea of guilty, and in fact was prohibited by law from doing so. "Since the stipulation offeredto meetthe requirements ofArt. 1.15, V.A.C.C.P., did not properly support the plea, the trial court should not have accepted the stipulation in evidence." 

### Thornton v. State, 601 S.W.2d 340, 349 (Tex. Crim. App. 1979) (Dally, J.,
54dissenting on motion for rehearing); 

### see also Byrdv. State, 336 S.W.3d 242, 254 (Tex. Crim. App. 2011) (since a rose does not smell like a pickle, the two terms are not interchangeable) and 

### Cada v. State, 334 S.W.3d 766, 772-773 {Tex. Crim. App. 2011) (precision in terminology is required in making proof). The defect in proving the overt act was for the purpose of furthering the objective of the agreement absolutely prevented the court from making a finding ofguilt based on the plea. Appellant is accordingly entitled to have his plea held for naught and to have the case remanded for a new trial. 

### Bender v. State, 758 S.W.2d 278 {Tex. Crim. App. 1988) (State's failure to comply withArticle 1.15 is trial error). 

### ii. Conclusion Thejudicial confession offered in support ofAppellant's plea ofguilty was insufficient to show guilt ofcriminal conspiracy, which is required by Texas Code ofCriminal Procedure Article 1.15. Appellant asks this courtto reverse herplea of guilty andremandthis case backto the trial court for anewtrial. 

### X. Conclusion and Prayer For the above reasons, Appellant prays that upon appellate review, this Courtreverse the Judgment and sentence and: (1) find and declare thatAppellant's motion to suppress should have been granted; (2) orderthat Appellant is entitled to withdrawherpleaofguilty, and (3) remand this case for anewtrial.

55XI. CertificateofService Respectfully submitted, The Law Office ofKristin R. Brown, PLLC 18208 Preston Road, Ste
.D9375 Dallas, Texas 75252 Phone: 214-205-0701 Fax: 214-481-4868
by Kristin R
.Brown kbrown@idefenddfw
.com Texas BarNo
. 24081458 Attorney for Appellant

I certify that on October 3, 2015, a true and correct copy ofthis document was served on Gary Young and Laurie Pollard of the Lamar County District Attorney's Office by email to gyoung@co.lamar
.tx.us and lpollard@co.lamar
.tx.us.SeeTex. Rule App
.Proc. 9
.5 (2015)
.

Kristin R. Brown

XII. CertificateofCompliance with Tex. Rule App. Proc. 9.4 This certifies that this document complies with the type-volume limitations because it is computer-generated and does not exceed 15,000 words. Using the word

-count feature ofMicrosoftWord,the undersigned certifiesthatthis document contains 10,306 words in the entire document except in the following sections: caption, identity ofparties and counsel, statement regarding oral argument, table of contents, index ofauthorities, statement ofthe case, statement ofissues presented, statement ofjurisdiction, statement of procedural history, signature, proof of service, certification, certificate ofcompliance, and appendix
. This document also 56complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14-point font
. See Tex. Rule App. Proc. 9.4 (2015).

KristinR. Brown

57