SIXTH COURT OF APPEALS 

06-15-00023-CR 

Jessica Boyett, Appellant 

v. 

State of Texas, Appellee 

On Appeal from the 6th Judicial District Court 

Lamar County, Texas 

No. 25505 

Appellant's Brief 

Kristin R. Brown 

18208 Preston Road, Ste. D9375 

Dallas, Texas 75252 

Phone: 214-466-3909 

Fax: 214-481-4868 

kbrown@idefenddfw.com 

Texas Bar No. 24081458 

Attorney for Appellant 

If the Court's decisional process will be significantly 

aided by oral orgument, oral argument is requested 

ACCEPTED

06-15-00023-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

10/5/2015 12:00:00 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 10/5/2015 8:51:00 AM DEBBIE AUTREY Clerk
I. Identities of Parties and Counsel 

Jessica Boyett, Appellant. 

Kristin R. Brown, attorney for Appellant on appeal 

Don Halsam, attorney for Appellant at trial 

State of Texas, Appellee. 

Gary Young, Lamar County District Attorney 

Laurie Pollard, Lamar County Assistant District Attorney 

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

2 
II. Table of Contents 

I. Identities of Parties and Counsel ..................................................................... 2 

II. Table of Contents ............................................................................................ 3 

III. Index of Authorities ......................................................................................... 5 

IV. Statement of the Case and Jurisdiction .......................................................... 10 

V. Statement Regarding Oral Argument ............................................................ 12 

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

VII. Facts................................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

1. Evidence presented at the hearing on the motion to suppress ...................... 14 

2. Evidence presented to prove guilt ................................................................ 21 

VIII. Summary of the Arguments ........................................................................... 22 

IX. Argument ....................................................................................................... 23 

1. Issue One: The trial court erred when it denied Appellant's 

motion to suppress evidence because the evidence was illegally 

obtained as a result of an unreasonable seizure of Appellant 

without a warrant and without reasonable suspicion that he had 

been or would soon be engaging in criminal activity, including 

for any offense under Texas Transportation Code § 545.060 ...................... 23 

i. Introduction ............................................................................................ 23 

ii. Standard of review .................................................................................. 26 

iii. Law regarding investigative detentions .................................................. 26 

iv. There was no justification for the stop of Appellant under 

the Transportation Code, and this alone should cause this 

court to reverse and remand this case back to the trial court .................. 3 0 

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 and his arrest .............................................................................. 3 5 

vii. Conclusion .............................................................................................. 43 

2. Issue Two: The trial court erred when it denied Appellant's 

motion to suppress his recorded statement because: ( 1) it was 

3 
given in response to custodial interrogation by the police; (2) it 

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

shown to be freely and voluntarily made without compulsion or 

persuasion as required by Texas Code of Criminal Procedure 

Article 3 8.21 ................................................................................................. 44 

i. The confession was tainted by the unlawful arrest ................................. 44 

ii. The confession was coerced ................................................................... 45 

iii. Conclusion .............................................................................................. 5 0 

3. Issue Three: The judicial confession offered in support of 

Appellant's plea of guilty was insufficient to show guilt of 

criminal conspiracy, which is required by Texas Code of 

Criminal Procedure Arti c 1 e 1 . 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 0 

i. Argument ................................................................................................ 5 0 

ii. Conclusion .............................................................................................. 5 5 

X. Conclusion and Prayer ................................................................................... 5 5 

XI. Certificate of Service ..................................................................................... 5 6 

XII. Certificate of Compliance with Tex. Rule App. Proc. 9 .4 ............................ 56 

4 
III. Index of Authorities 

Cases 

Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) .................... 45, 50 

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) ............................ 39 

Arizona v. Fulminante, 499 U.S. 279, 287 (1991) .................................................. 47 

Arizona v. Johnson, 555 U.S. 323, 333 (2009) ....................................................... 42 

Aviles v. State, 23 S.W.3d 74, 77 (Tex. App. Houston [14th 

Dist.] 2000, no pet.) ...................................................................................... 3 3 

Baggett v. State, 342 S. W.3d 172, 175 (Tex. App. Texarkana 

2011) ............................................................................................................. 52 

Balentine v. State, 71 S. W .3d 763, 768 (Tex. Crim. App. 2002) ........................... 29 

Bender v. State, 758 S. W.2d 278 (Tex. Crim. App. 1988) ..................................... 55 

Blackburn v. Alabama, 361U.S.199, 206 (1966) .................................................. 48 

Brown v. Mississippi, 297 U.S. 278 (1936) ............................................................ 47 

Brown v. State, 605 S. W.2d 572, 577 (Tex. Crim. App. 1980) .............................. 44 

Brown v. Texas, 443 U.S. 47, 48-49 (1979) ............................................................ 27 

Byrd v. State, 187 S. W.3d 436, 441 (Tex. Crim. App. 2005) ................................. 26 

Byrd v. State, 336 S. W.3d 242, 254 (Tex. Crim. App. 2011) ................................. 55 

Cada v. State, 334 S. W.3d 766, 772-773 (Tex. Crim. App. 

2011) ............................................................................................................. 55 

California v. Hodari D., 499 U.S. 621, 627-628 (1991) ......................................... 27 

Cantu v. State, 817 S. W.2d 74, 77 (Tex. Crim. App. 1991) ................................... 46 

Ca"oll v. State, 139 S.W.2d 821, 823 (Tex. Crim. App. 1940) ............................. 26 

Collins v. State, 352 S.W.2d 841, 843 (Tex. Crim. App. 1961) ....................... 46, 47 

Connorv. State, 773S.W.2d13, 13-14 (Tex. Crim. App.1989) ........................... 43 

Cooper v. State, 537 S. W.2d 940, 943 (Tex. Crim. App. 1976) ............................. 51 

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ................................ 40 

Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App. 

Dallas 2009, no pet.) ..................................................................................... 25 

Dancy v. State, 728 S. W.2d 772, 772 (Tex. Crim. App. 1987) .............................. 46 

5 
Davenport v. State, 299 S.W.3d 859, 861 (Tex. App. Eastland 

2009, no pet.) ................................................................................................ 34 

Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) ............................... 40 

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

A pp. 2 0 13) .................................................................................................... 2 9 

Delao v. State, 235 S. W.3d 235, 239 (Tex. Crim. App. 2007) ............................... 45 

Dinnery v. State, 592 S.W.2d 343, 348 (Tex. Crim. App. 1979) ............................ 54 

Duran v. State, 552 S.W.2d 840, 842-843 (Tex. Crim. App. 

1977) ............................................................................................................. 52 

Escobedo v. Illinois, 378 U.S. 478 (1964) .............................................................. 43 

Farmah v. State, 883 S.W.2d 674, 679 (Tex. Crim. App. 1994) ............................ 44 

Farr v. State, 519 S. W.2d 876, 880 (Tex. Crim. App. 1975) ................................. 49 

Ford v. State, 158 S. W .3d 488, 492 (Tex. Crim. App. 2005) ................................. 29 

Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) .............................. 29 

Freeman v. State, 62 S.W.3d 883, 888 (Tex. App. Texarkana 

2001, pet. ref.) ............................................................................................... 36 

Garcia v. State, 43 S. W.3d 527, 530 (Tex. Crim. App. 2001) ............................... 29 

Garcia v. State, 829 S. W .2d 830, 833 (Tex. App. Dallas 1992, 

no pet. ) .......................................................................................................... 4 9 

Gentry v. State, 770 S. W.2d 780, 789 (Tex. Crim. App. 1988) .............................. 49 

Golemon v. State, 247 S.W.2d 119, 121 (Tex. Crim. App. 1952) .......................... 47 

Gonzales v. State, 966 S.W.2d 521, 523 (Tex. Crim. App. 1998) .......................... 23 

Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012) .............................. 27 

Hardesty v. State, 661S.W.2d130, 134 (Tex. Crim. App. 1984) .......................... 48 

Jackson v. Denno, 378 U.S. 368, 376 (1964) ......................................................... 48 

Johnson v. State, 365 S.W.3d 484, 489 (Tex. App. Tyler 2012, 

no pet.) .......................................................................................................... 3 2 

Joseph v. State, 309 S. W.3d 20, 24 (Tex. Crim. App. 2010) .................................. 45 

Kraftv. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988) ................................ 23 

Krulewitch v. United States, 336 U.S. 440 (1949) .................................................. 26 

6 
Landon v. State, 222 S. W.3d 75, 79 (Tex. App. Tyler 2006, no 

pet.) ............................................................................................................... 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 

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

no pet.) .......................................................................................................... 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, 

no pet.) .......................................................................................................... 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, no pet.) (mem. op., not designated for publication) ........................... 52 

Miller v. Fenton, 474 U.S. 104, 109 (1985) ............................................................ 47 

Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth 

1 99 8, no pet. ) ................................................................................................ 4 2 

Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 

2008) ............................................................................................................. 48 

Payne v. Arkansas, 356 U.S. 560, 561 (1958) ........................................................ 48 

Prince v. State, 231S.W.2d419, 421 (Tex. Crim. App. 1950) .............................. 47 

Reck v. Pate, 367 U.S. 433, 440-441 (1961) ........................................................... 48 

Reeves v. State, 969 S.W.2d 471, 485 (Tex. App. Waco 1998, 

no pet.) .......................................................................................................... 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 for publication) .......................................................................... 41 

Rodriguez v. United States, 575 U.S. _, 135 S.Ct. 1609, 

1613-1616 (2015) ......................................................................................... 41 

7 
Rogers v. Richmond, 365 U.S. 534, 540 ( 1961) ..................................................... 48 

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990) ............................. 46 

Sherman v. State, 532 S. W.2d 634, 636 (Tex. Crim. App. 1976) ........................... 49 

Sims v. State, 98 S.W.3d 292, 295 (Tex. App. Houston [1st 

Dist.] 2003, no pet.) ...................................................................................... 4 2 

Sinegal v. State, 582 S.W.2d 135, 137 (Tex. Crim. App. 1979) ............................. 49 

Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 

1991) ............................................................................................................. 48 

State v. Alderete, 314 S.W.3d 469, 473 (Tex. App. El Paso 

2010, no pet.) ................................................................................................ 29 

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

pet.) ............................................................................................................... 44 

State v. Houghton, 384 S.W.3d 441, 446-447 (Tex. App. Fort 

Worth 2012, no pet.) ..................................................................................... 30 

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

00212-CR, 03-07-00213-CR, 2007 Tex. App. LEXIS 

8695, 2007 WL 3225374, at *4 (Tex. App. Austin, Oct. 

31, 2007, no pet.) (mem. op.) (not designated for 

publication) ................................................................................................... 34 

State v. Mendoza, 365 S.W.3d 666, 669-670 (Tex. Crim. App. 

2012) ............................................................................................................. 26 

State v. Rauch, 586 P.2d 671, 678 (Idaho 1978) ..................................................... 43 

State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 

2008) ............................................................................................................. 39 

Taylor v. State, 604 S. W.2d 175, 177 (Tex. Crim. App. 1980) .............................. 46 

Terry v. Ohio, 392 U.S. 1, 22 ( 1968) ................................................................ 29, 39 

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

1980) ............................................................................................................. 54 

Thornton v. State, 601 S.W.2d 340, 349 (Tex. Crim. App. 1979) .......................... 54 

Trevino v. State, 519 S. W.2d 864, 866 (Tex. Crim. App. 1975) ............................ 51 

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

1985,pet. ref.) ......................................................................................... 51, 54 

United States v. Mendenhall, 446 U.S. 544, 554 (1980) ........................................ 26 

8 
Valdez v. State, 555 S.W.2d 463, 464 (Tex. Crim. App. 1977) .............................. 51 

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) .......................... 26 

Vargas v. State, 852 S.W.2d 43, 44 (Tex. App. El Paso 1993, 

no pet.) .......................................................................................................... 46 

Vicioso v. State, 54 S.W.3d 104, 110, 111 (Tex. App. Waco 

2001, no pet.) ................................................................................................ 44 

Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) .................... 26, 27, 29 

White v. State, 574 S.W.2d 546, 547 (Tex. Crim. App. 1978) ............................... 36 

Whren v. United States, 517 U.S. 806, 813 ( 1996) ................................................. 40 

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

2920 (Tex. App. Texarkana, April 24, 2008, no pet.) (not 

designated for publication) ........................................................................... 31 

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........................... 51 

Statutes 

Tex. Code Crim. Proc. Art. 1.15 (2015) ................................................................. 51 

Tex. Code Crim. Proc. Art. 38.22 (2013) ............................................................... 45 

Tex. Health & Safety Code§ 481.112(a) & (c) (2013) .............................. 10, 11, 53 

Tex. Health & Safety Code§ 481.124(b)(3) (2013) ............................................... 38 

Tex. Pen. Code§ 15.03(a) (2013) ............................................................... 10, 11, 53 

Tex. Transp. Code§ 545.060 (2013) ...................................................................... 30 

Rules 

Tex. Rule App. Proc. 25.2(a)(2) (2015) ............................................................ 11, 24 

Tex. Rule App. Proc. 26.2(a) (2015) ...................................................................... 11 

Tex. Rule App. Proc. 39 (2015) .............................................................................. 12 

Tex. Rule App. Proc. 9.4 (2015) ............................................................................. 57 

Tex. Rule App. Proc. 9 .5 (2015) ............................................................................. 56 

Tex. Rule Evid. 802( e )(2)(E) .................................................................................. 26 

Constitutional Provisions 

Tex. Const. Art. 1, § 19 ........................................................................................... 46 

U.S. Const. Amend. IV ........................................................................................... 39 

9 
To the Honorable Justices of the Court of Appeals: 

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

IV. Statement of the Case and Jurisdiction 

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

sentence for Conspiracy to Manufacture or Deliver a Controlled Substance in 

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

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

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

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

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

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

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

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

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

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

(2013). 

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

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

1 The record on appeal consists of the Clerk's Record, is cited by "CR" followed by the page 

number, and one volume of the reporter's record, which is cited as "RR" followed by the page 

number. 

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

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

denied the motion. (CR, 170). 

Under a plea agreement, Appellant pleaded guilty to Conspiracy to 

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

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

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

§ 15.03(a) (2013). 

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

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

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

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

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

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

11 
V. Statement Regarding Oral Argument 

Although Appellant believes the facts and arguments are thoroughly 

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

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

Rule App. Proc. 39 (2015). 

12 
VI. Issues Presented 

Issue One: The trial court erred when it denied Appellant's motion to suppress 

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

seizure of Appellant without a warrant and without reasonable suspicion that he 

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

under Texas Transportation Code § 545.060 

Issue Two: The trial court erred when it denied Appellant's motion to suppress her 

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

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

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

required by Texas Code of Criminal Procedure Article 38.21. 

Issue Three: The judicial confession offered in support of Appellant's plea of 

guilty was insufficient to show guilt of criminal conspiracy, which is required by 

Texas Code of Criminal Procedure Article 1.15. 

13 
VII. Facts 

1. Evidence presented at the hearing on the motion to 

suppress 

Appellant and her husband Rodney Boyett were suspected by the Paris 

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

of pseudoephedrine in small quantities from multiple pharmacies not for medicinal 

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

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

based on information he could receive from a computerized pharmacy 

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

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

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

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

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

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

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

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

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

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

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

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

14 
common for people involved in methamphetamine production in Oklahoma to 

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

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

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

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

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

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

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

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

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

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

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

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

Foreman explained the significance with this activity as follows: Walmart 

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

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

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

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

the illegal purpose of manufacturing methamphetamine make other stops to pick 

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

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

21). 

Foreman and the other officers followed Appellant and Rodney Boyett after 

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

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

violation, failure to maintain a single lane, which he described as a vehicle's leftside tires crossing over the centerline into the left lane before going back. (RR, 21 ). 

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

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

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

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

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

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

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

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

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

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

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

Foreman said that Rodney Boyett told him "they had purchased 

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

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

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

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

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

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

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

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

and Rodney Boyett had just purchased pseudoephedrine at different locations in 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

methamphetamine, Appellant would not admit to transporting anything with the 

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

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

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

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

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

a little bit more" because: 

"(S)he (Appellant) did indicate that liquid beet was used to 

manufacture methamphetamine. She said that she had used 

methamphetamine the previous day by shooting it up with a syringe, 

that her and Rodney both had used methamphetamine the previous 

day after he had gotten off work. They both used with a syringe. . . . 

She said that the items found in her vehicle were going to be used for 

them to get methamphetamine. . . . She had talked about Rodney 

Boyett cooking methamphetamine. It was cooked on a shed on their 

property, in relation of their property to Mr. Boyett's father's house, 

her use of methamphetamine, I believe, two to three times a week .... 

18 
She said that she didn't know how to cook, but she had been present 

while it was cooked, but that she does not know how to cook it. .. " 

(RR, 44-45, 49). 

Rodney Boyett was kept at the police department overnight because the 

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

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

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

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

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

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

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

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

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

Rodney Boyett testified that before the formal interrogation shown on the 

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

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

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

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

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

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

providing information about their crime. (RR, 38, 42, 45, 46, 48, 53, 58, 65-66). 

19 
With one exception, Foreman was never asked to specifically deny the accusations 

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

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

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

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

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

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

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

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

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

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

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

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

her: 

"I know what y'all are doing. I know that y'all are cooking drugs. I 

know that y'all are meth users, and you're going to tell us this. 

Because if you don't, we can tell the Judge and the DA whatever we 

want, whatever our imagination can come up with, that's what we'll 

tell them. And they won't believe you. They will believe us. We've 

been in this for too many years." 

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

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

further stated that Moore told her: 

20 
"[Y]ou're looking at going to prison for 10 years, and you're not 

going to get to see them step-kids and your family for a long time. 

You're going to tell us what we want to know. And if you do this, 

then you can go home, and this will all just go away. If you tell us 

what we want to know, what we want to hear, then we can talk to the 

DA, and it will all just work itself out. There won't be no jail time, 

and you get to go home." 

(RR, 107-108). 

2. Evidence presented to prove guilt 

The evidence of guilt came in the form of a written judicial confession in 

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

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

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

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

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

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

RR, 178). 

21 
VIII.Summary of the Arguments 

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 1.15. 

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

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

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

case for a new trial. 

22 
IX. Argument 

1. Issue One: The trial court erred when it denied 

Appellant's motion to suppress evidence because the 

evidence was illegally obtained as a result of an 

unreasonable seizure of Appellant without a warrant and 

without reasonable suspicion that she had been or would 

soon be engaging in criminal activity, including for any 

offense under Texas Transportation Code § 545.060. 

i. Introduction 

The police in this case obtained evidence using tactics that violated 

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

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

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

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

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

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

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

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

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

and remand the case for a new trial. 

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

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

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

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

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

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

recorded statements obtained from Appellant and Rodney Boyett after they were 

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

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

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

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

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

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

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

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

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

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

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

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

detention (traffic stop) were obtained legally. 

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

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

illegal arrest. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from Appellant before she made the statements necessarily precluded any further 

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

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

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

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

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

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

ii. Standard of review 

If the trial court makes express findings of fact, as the court did in this case 

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

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

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

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

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

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

iii. Law regarding investigative detentions 

There are three types of police-citizen interactions: ( 1) consensual 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the defendant's truck. Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

2013). 

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

for investigative purposes on less information than is constitutionally required for 

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

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

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

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

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

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

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

Fort Worth 2012, no pet.). 

iv. There was no justification for the stop of Appellant under the 

Transportation Code, and this alone should cause this court to 

reverse and remand this case back to the trial court. 

The State's initial position was that Foreman could stop the vehicle, in 

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

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

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

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

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

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

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

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

because of heavy traffic." 

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

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

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

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

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

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

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

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

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

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

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

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

the road. 

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

merely because Foreman testified he decided not to immediately signal Appellant 

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

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

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

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

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

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

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

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

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

the road." Id. at *4. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

shoulder"). 

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

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

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

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

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

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

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

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

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

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

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

dangerous). 

v. The information about pseudoephedrine purchases d~d not 

amount to reasonable suspicion to initiate a Terry investigative 

detention 

The trial court also erred in finding that Foreman possessed reasonable 

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

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

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

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

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

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

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

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

that might be used in the clandestine manufacture of methamphetamine. 

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

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

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

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

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

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

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

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

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

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

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

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

for purchases of "suspiciously large quantities of pseudoephedrine and other 

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

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

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

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

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

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

has no binding effect on this Court. 

vi. There was no justification for the search of Appellant's vehicle 

and her arrest 

Appellant's vehicle was not legally stopped. Other than purportedly 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

reasonable because the passenger and driver gave inconsistent answers to questions 

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

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

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

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

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

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

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

crease of the gas cap compartment). 

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

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

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

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

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

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

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

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

pet.). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

purpose of making methamphetamine. Foreman had no evidence or reasonable 

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

manufacture methamphetamine. One cannot deduce an association with 

methamphetamine merely from acquisition or possession of pseudoephedrine. 

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

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

given amount of methamphetamine or that a sufficient quantity of pseudoephedrine 

was reasonably expected to be located in the vehicle. 

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

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

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

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

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

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

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

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

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

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

were found in Appellant's vehicle. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

using the detention for an entirely different purpose. 

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

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

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

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

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

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

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

678 (Baird, J ., dissenting). 

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

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

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

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

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

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

disappear or change or become irrelevant merely because Rodney Boyett 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evidence independently secured through skillful investigation" by the officers over 

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

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

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

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

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

formed the basis of probable cause to search the vehicle. 

vii. Conclusion 

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

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

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

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

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

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

new trial. 

43 
l. Issue Two: The trial court erred when it denied 

Appellant's motion to suppress her recorded statement 

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

police; (2) it was obtained as a result of her illegal arrest; and (3) it 

was not shown to be freely and voluntarily made without compulsion 

or persuasion as required by Texas Code of Criminal Procedure 

Article 38.21. 

i. The confession was tainted by the unlawful arrest 

Probable cause to search must be legally obtained. See Le v. State, 463 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

44 
ii. The confession was coerced 

After she was arrested and in police custody at the station, rather than 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Code of Criminal Procedure expressly allows the statement of an 

accused to be used against him if it appears that the statement was freely and 

voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Arts. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

282. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1992, no pet.). 

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

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

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

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

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

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

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

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

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

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

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

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

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

S.W.2d at 211. 

iii. Conclusion 

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

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

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

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

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

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

court for a new trial. 

3. Issue Three: The judicial confession offered in support of 

Appellant's plea of guilty was insufficient to show guilt of 

criminal conspiracy, which is required by Texas Code of 

Criminal Procedure Article 1.15. 

i. Argument 

A reviewing court must "ensure that the evidence presented actually 

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

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

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

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

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

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

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

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

App. 2009). 

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

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

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

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

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

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

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

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

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

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

1985, pet. ref.). 

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

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

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

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

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

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

to support a conviction). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9 (Tex. Crim. App. 2009). 

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

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

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

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

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

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

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

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

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

agreement performed the overt act of possessing or transporting a chemical 

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

methamphetamine. (CR, 5). 

Conspiracy to Manufacture or Deliver a Controlled Substance in Penalty 

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

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

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

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

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

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

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

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

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

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

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

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

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

connotation as "of." 

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

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

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

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

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

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

confession is insufficient if it incorporates by reference allegations of the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ii. Conclusion 

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

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

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

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

X. Conclusion and Prayer 

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

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

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

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

55 
XI. Certificate of Service 

Respectfully submitted, 

The Law Office of Kristin R. Brown, PLLC 

18208 Preston Road, Ste. D9375 

Dallas, Texas 75252 

Phone: 214-205-0701 

Fax: 214-481-4868 

by Kristin R. Brown 

kbrown@idefenddfw.com 

Texas Bar No. 24081458 

Attorney for Appellant 

I certify that on October 3, 2015, a true and correct copy of this document 

was served on Gary Young and Laurie Pollard of the Lamar County District 

Attorney's Office by email to gyoung@co.lamar.tx.us and 

lpollard@co.lamar.tx.us. See Tex. Rule App. Proc. 9.5 (2015). 

Kristin R. Brown 

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

This certifies that this document complies with the type-volume limitations 

because it is computer-generated and does not exceed 15,000 words. Using the 

word-count feature of Microsoft Word, the undersigned certifies that this document 

contains 10,306 words in the entire document except in the following sections: 

caption, identity of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of issues presented, 

statement of jurisdiction, statement of procedural history, signature, proof of 

service, certification, certificate of compliance, and appendix. This document also 

56 
complies with the typeface requirements because it has been prepared in a 

proportionally-spaced typeface using Microsoft Word in 14-point font. See Tex. 

Rule App. Proc. 9.4 (2015). 

Kristin R. Brown 

57