Rodney Boyett v. State ( 2015 )


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  •                                                                                     ACCEPTED
                                                                                    06-15-00024-CR
                                                                         SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                               9/7/2015 12:00:00 AM
                                                                                   DEBBIE AUTREY
                                                                                             CLERK
    
    
                   SIXTH COURT OF APPEALS
                                                                   FILED IN
                                                            6th COURT OF APPEALS
                               06-15-00024-CR                 TEXARKANA, TEXAS
                                                            9/8/2015 10:01:00 AM
                                                                DEBBIE AUTREY
                        Rodney Boyett, Appellant                    Clerk
    
                                   v.
                        State of Texas, Appellee
                  On Appeal from the 6th Judicial District Court
                             Lamar County, Texas
                                   No. 25506
    
    
    
    
                               Appellant’s Brief
    
    
    
    Michael Mowla
    445 E. FM 1382 No. 3-718
    Cedar Hill, Texas 75104
    Phone: 972-795-2401
    Fax: 972-692-6636
    michael@mowlalaw.com
    Texas Bar No. 24048680
    Attorney for Appellant
    
    
    
    
      If the Court’s decisional process will be significantly
       aided by oral argument, oral argument is requested
    I.    Identities of Parties and Counsel
    
    Rodney Boyett, Appellant.
    
    Michael Mowla, attorney for Appellant on appeal
    
    Don Halsam, attorney for Appellant at trial
    
    State of Texas, Appellee.
    
    Gary Young, Lamar County District Attorney
    
    Laurie Pollard, Lamar County Assistant District Attorney
    
    Hon. Will Biard, Presiding Judge, 6th Judicial District Court, Lamar County
    
    
    
    
                                              2
    II.        Table of Contents
    
    I.        Identities of Parties and Counsel ......................................................................2 
    II.       Table of Contents..............................................................................................3 
    III.  Index of Authorities ..........................................................................................5 
    IV.  Statement of the Case and Jurisdiction...........................................................10 
    V.        Statement Regarding Oral Argument .............................................................12 
    VI.  Issues Presented ..............................................................................................13 
    VII.  Facts ................................................................................................................14 
          1.  Evidence presented at the hearing on the motion to suppress .......................14 
          2.  Evidence presented to prove guilt .................................................................21 
    VIII.  Summary of the Arguments............................................................................22 
    IX.  Argument ........................................................................................................23 
          1.  Issue One: The trial court erred when it denied Appellant’s
              motion to suppress evidence because the evidence was illegally
              obtained as a result of an unreasonable seizure of Appellant
              without a warrant and without reasonable suspicion that he had
              been or would soon be engaging in criminal activity, including
              for any offense under Texas Transportation Code § 545.060. ......................23 
             i.     Introduction .............................................................................................23 
             ii.    Standard of review ...................................................................................26 
             iii.  Law regarding investigative detentions...................................................26 
             iv.  There was no justification for the stop of Appellant under
                  the Transportation Code, and this alone should cause this
                  court to reverse and remand this case back to the trial court. .................30 
             v.     The information about pseudoephedrine purchases did not
                    amount to reasonable suspicion to initiate a Terry
                    investigative detention .............................................................................33 
             vi.  There was no justification for the search of Appellant’s
                  vehicle and his arrest ...............................................................................34 
             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 38.21. .................................................................................................44 
           i.     The confession was tainted by the unlawful arrest .................................44 
           ii.    The confession was coerced ....................................................................45 
           iii.  Conclusion ...............................................................................................50 
       3.  Issue Three: The judicial confession offered in support of
           Appellant’s plea of guilty was insufficient to show guilt of
           criminal conspiracy, which is required by Texas Code of
           Criminal Procedure Article 1.15....................................................................51 
           i.     Argument .................................................................................................51 
           ii.    Conclusion ...............................................................................................55 
    X.      Conclusion and Prayer ....................................................................................57 
    XI.  Certificate of Service ......................................................................................57 
    XII.  Certificate of Compliance with Tex. Rule App. Proc. 9.4 .............................58 
    
    
    
    
                                                                4
    III.     Index of Authorities
    
    Cases 
    Alvarado v. State, 
    912 S.W.2d 199
     (Tex. Crim. App. 1995)............................ 45, 50
    Amador v. State, 
    275 S.W.3d 872
     (Tex. Crim. App. 2009) .....................................39
    Arizona v. Fulminante, 
    499 U.S. 279
     (1991) ...........................................................47
    Arizona v. Johnson, 
    555 U.S. 323
     (2009) ................................................................42
    Aviles v. State, 
    23 S.W.3d 74
     (Tex. App. Houston [14th Dist.]
          2000, no pet.) .................................................................................................33
    Baggett v. State, 
    342 S.W.3d 172
     (Tex. App. Texarkana 2011) .............................52
    Balentine v. State, 
    71 S.W.3d 763
     (Tex. Crim. App. 2002) ....................................28
    Bender v. State, 
    758 S.W.2d 278
     (Tex. Crim. App. 1988) ......................................55
    Blackburn v. Alabama, 
    361 U.S. 199
     (1966) ...........................................................47
    Brown v. Mississippi, 
    297 U.S. 278
     (1936) .............................................................47
    Brown v. State, 
    605 S.W.2d 572
     (Tex. Crim. App. 1980) .......................................44
    Brown v. Texas, 
    443 U.S. 47
     (1979) ........................................................................27
    Byrd v. State, 
    187 S.W.3d 436
     (Tex. Crim. App. 2005) ..........................................26
    Byrd v. State, 
    336 S.W.3d 242
     (Tex. Crim. App. 2011) ..........................................55
    Cada v. State, 
    334 S.W.3d 766
     (Tex. Crim. App. 2011) .........................................55
    California v. Hodari D., 
    499 U.S. 621
     (1991) .........................................................27
    Cantu v. State, 
    817 S.W.2d 74
     (Tex. Crim. App. 1991) ..........................................46
    Carroll v. State, 
    139 S.W.2d 821
     (Tex. Crim. App. 1940)......................................25
    Collins v. State, 
    352 S.W.2d 841
     (Tex. Crim. App. 1961) ............................... 46, 47
    Connor v. State, 
    773 S.W.2d 13
     (Tex. Crim. App. 1989) .......................................43
    Cooper v. State, 
    537 S.W.2d 940
     (Tex. Crim. App. 1976)......................................51
    Crittenden v. State, 
    899 S.W.2d 668
     (Tex. Crim. App. 1995) ................................39
    Cuadros-Fernandez v. State, 
    316 S.W.3d 645
     (Tex. App. Dallas
         2009, no pet.) .................................................................................................25
    Dancy v. State, 
    728 S.W.2d 772
     (Tex. Crim. App. 1987) .......................................46
    Davenport v. State, 
    299 S.W.3d 859
     (Tex. App. Eastland 2009,
         no pet.) ...........................................................................................................34
                                                                5
    Davis v. State, 
    947 S.W.2d 240
     (Tex. Crim. App. 1997) ........................................39
    Delafuente v. State, 
    414 S.W.3d 173
     (Tex. Crim. App. 2013). ...............................29
    Delao v. State, 
    235 S.W.3d 235
     (Tex. Crim. App. 2007) ........................................45
    Dinnery v. State, 
    592 S.W.2d 343
     (Tex. Crim. App. 1979) ....................................54
    Duran v. State, 
    552 S.W.2d 840
     (Tex. Crim. App. 1977) .......................................52
    Escobedo v. Illinois, 
    378 U.S. 478
     (1964) ...............................................................43
    Farmah v. State, 
    883 S.W.2d 674
     (Tex. Crim. App. 1994) .....................................44
    Farr v. State, 
    519 S.W.2d 876
     (Tex. Crim. App. 1975) ..........................................49
    Ford v. State, 
    158 S.W.3d 488
     (Tex. Crim. App. 2005)..........................................29
    Foster v. State, 
    326 S.W.3d 609
     (Tex. Crim. App. 2010) .......................................29
    Freeman v. State, 
    62 S.W.3d 883
     (Tex. App. Texarkana 2001,
         pet. ref.) ..........................................................................................................36
    Garcia v. State, 
    43 S.W.3d 527
     (Tex. Crim. App. 2001) ........................................29
    Garcia v. State, 
    829 S.W.2d 830
     (Tex. App. Dallas 1992, no
         pet.) ................................................................................................................49
    Gentry v. State, 
    770 S.W.2d 780
     (Tex. Crim. App. 1988) ......................................49
    Golemon v. State, 
    247 S.W.2d 119
     (Tex. Crim. App. 1952) ...................................47
    Gonzales v. State, 
    966 S.W.2d 521
     (Tex. Crim. App. 1998)...................................23
    Hamal v. State, 
    390 S.W.3d 302
     (Tex. Crim. App. 2012).......................................27
    Hardesty v. State, 
    667 S.W.2d 130
     (Tex. Crim. App. 1984) ...................................48
    Jackson v. Denno, 
    378 U.S. 368
     (1964) ..................................................................48
    Johnson v. State, 
    365 S.W.3d 484
     (Tex. App. Tyler 2012, no
         pet.) ................................................................................................................32
    Joseph v. State, 
    309 S.W.3d 20
     (Tex. Crim. App. 2010) ........................................45
    Kraft v. State, 
    762 S.W.2d 612
     (Tex. Crim. App. 1988) .........................................23
    Krulewitch v. United States, 
    336 U.S. 440
     (1949)...................................................26
    Landon v. State, 
    222 S.W.3d 75
     (Tex. App. Tyler 2006, no pet.) ...........................52
    Le v. 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
    
                                                                 6
    Leza v. State, 
    351 S.W.3d 344
     (Tex. Crim. App. 2011) ..........................................45
    Lopez v. State, 
    223 S.W.3d 408
     (Tex. App. Amarillo 2006, no
          pet.) ................................................................................................................36
    Lopez v. State, 
    708 S.W.2d 446
     (Tex. Crim. App. 1986) ........................................53
    Martinez v. State, 
    127 S.W.3d 792
     (Tex. Crim. App. 2004) ...................................48
    Mendez v. State, 
    56 S.W.3d 880
     (Tex. App. Austin 2001, no
         pet.) ................................................................................................................43
    Menefee v. State, 
    287 S.W.3d 9
     (Tex. Crim. App. 2009) ................................. 51, 53
    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) ............................53
    Miller v. Fenton, 
    474 U.S. 104
     (1985).....................................................................47
    Mohmed v. State, 
    977 S.W.2d 624
     (Tex. App. Fort Worth 1998,
        no pet.) ...........................................................................................................42
    Oursbourn v. State, 
    259 S.W.3d 159
     (Tex. Crim. App. 2008) ................................48
    Payne v. Arkansas, 
    356 U.S. 560
     (1958) .................................................................48
    Prince v. State, 
    231 S.W.2d 419
     (Tex. Crim. App. 1950) .......................................47
    Reck v. Pate, 
    367 U.S. 433
     (1961) ...........................................................................47
    Reeves v. State, 
    969 S.W.2d 471
     (Tex. App. Waco 1998, no
         pet.) ................................................................................................................36
    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) ...........................................................................40
    Rodriguez v. United States, 
    575 U.S.
    ___, 
    135 S. Ct. 1609
    ,
          1613-1616 (2015) ..........................................................................................40
    Rogers v. Richmond, 
    365 U.S. 534
     (1961) ..............................................................48
    Romero v. State, 
    800 S.W.2d 539
     (Tex. Crim. App.1990) ......................................46
    Sherman v. State, 
    532 S.W.2d 634
     (Tex. Crim. App. 1976) ...................................49
    Sims v. State, 
    98 S.W.3d 292
     (Tex. App. Houston [1st Dist.]
          2003, no pet.) .................................................................................................42
    Sinegal v. State, 
    582 S.W.2d 135
     (Tex. Crim. App. 1979)......................................49
    Sossamon v. State, 
    816 S.W.2d 340
     (Tex. Crim. App. 1991) .................................48
    
                                                                  7
    State v. Alderete, 
    314 S.W.3d 469
     (Tex. App. El Paso 2010, no
           pet.) ................................................................................................................29
    State v. Crisp, 
    74 S.W.3d 474
     (Tex. App. Waco 2002, no pet.)..............................44
    State v. Houghton, 
    384 S.W.3d 441
     (Tex. App. Fort Worth
          2012, no pet.) .................................................................................................29
    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
     (Tex. App. Austin, Oct. 31,
           2007, no pet.) (mem. op.) (not designated for publication)...........................34
    State v. Mendoza, 
    365 S.W.3d 666
     (Tex. Crim. App. 2012) ...................................26
    State v. Rauch, 
    586 P.2d 671
     (Idaho 1978) .............................................................42
    State v. Sheppard, 
    271 S.W.3d 281
     (Tex. Crim. App. 2008) ..................................39
    Taylor v. State, 
    604 S.W.2d 175
     (Tex. Crim. App. 1980) .......................................46
    Terry v. Ohio, 
    392 U.S. 1
     (1968) ...................................................................... 29, 39
    Thornton v. State, 
    601 S.W.2d 340
     (Tex. Crim. App. 1980)...................................54
    Thornton v. State, 
    601 S.W.2d 340
     (Tex. Crim. App. 1979)...................................55
    Trevino v. State, 
    519 S.W.2d 864
     (Tex. Crim. App. 1975) .....................................51
    Tullos v. State, 
    698 S.W.2d 488
     (Tex. App. Corpus Christi
          1985, pet. ref.) ......................................................................................... 52, 54
    United States v. Mendenhall, 
    446 U.S. 544
     (1980) .................................................26
    Valdez v. State, 
    555 S.W.2d 463
     (Tex. Crim. App. 1977).......................................52
    Valtierra v. State, 
    310 S.W.3d 442
     (Tex. Crim. App. 2010) ...................................26
    Vargas v. State, 
    852 S.W.2d 43
     (Tex. App. El Paso 1993, no
         pet.) ................................................................................................................46
    Vicioso v. State, 
    54 S.W.3d 104
     (Tex. App. Waco 2001, no pet.) ..........................44
    Wade v. State, 
    422 S.W.3d 661
     (Tex. Crim. App. 2013) ........................... 26, 27, 28
    White v. State, 
    574 S.W.2d 546
     (Tex. Crim. App. 1978) ........................................36
    Whren v. United States, 
    517 U.S. 806
     (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
     (Tex. Crim. App. 2007) ...................................51
                                                                  8
    Statutes 
    Tex. Code Crim. Proc. Art. 1.15 (2015) ..................................................................52
    Tex. Code Crim. Proc. Art. 38.22 (2013) ................................................................45
    Tex. Health & Safety Code § 481.112 (2013) ............................................ 10, 11, 54
    Tex. Health & Safety Code § 481.124 (2013) .........................................................38
    Tex. Pen. Code § 15.03 (2013) ................................................................... 10, 11, 54
    Tex. Transp. Code § 545.060 (2013) .......................................................................30
    Rules 
    Tex. Rule App. Proc. 25.2 (2015) ..................................................................... 11, 24
    Tex. Rule App. Proc. 26.2 (2015) ............................................................................11
    Tex. Rule App. Proc. 39 (2015) ...............................................................................12
    Tex. Rule App. Proc. 9.4 (2015) ..............................................................................58
    Tex. Rule App. Proc. 9.5 (2015) ..............................................................................57
    Tex. Rule Evid. 802 .................................................................................................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 Rodney 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 (“Judgment”) and
    
    sentence for Conspiracy to Manufacture or Deliver a Controlled Substance in
    
    Penalty Group 1 under cause number 25506, 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
    
    Jessica 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.
    
                                                10
    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, 169).
    
          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, 187).
    
    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, 182). 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 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 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.
    
    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 his wife Jessica 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 Jessica 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 by trying to visually confirm whether
    
    Appellant would go to a second CVS pharmacy after Amis had detected that
    
    Jessica Boyett just purchased a quantity of pseudoephedrine at the CVS pharmacy
    
    at 507 Clarksville to determine if Appellant would make a pseudoephedrine
    
    purchase at that pharmacy. (RR, 9, 13-14).
    
          The purchases made prior to September 24, 2013 were deemed suspicious
    
    because Appellant and Jessica 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 Jessica Boyett
    
    lived in Rattan, Oklahoma and that “[o]ver the last several years it [had been] very
    
    common for people involved in methamphetamine production in Oklahoma to
                                             14
    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, Jessica Boyett, and their vehicle were located by Foreman at the
    
    Lamar Avenue CVS. (RR, 16-17). Appellant and Jessica Boyett left that CVS and
    
    went in the Home Depot store for ten to twenty minutes. (RR, 16-17). Appellant
    
    and Jessica 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 Jessica Boyett. (RR, 19-20). Appellant and Jessica 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
    
    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 Jessica Boyett after
    
    they headed toward North Main (Highway 271) from the Walmart. (RR, 21). In the
    
    1100 block of the northeast loop, Foreman saw what he characterized as a traffic
    
    violation, failure to maintain a single lane, which he described as a vehicle’s left-
    
    side tires crossing over the center line into the left lane before going back. (RR,
    
    21). Foreman conducted a traffic stop to make contact with Appellant. (RR, 22).
    
    He waited to signal Appellant 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 Jessica Boyett had
    
    to stop at a red light (at the intersection of Main and Stone Avenue). (RR, 23, 36).
    
    Foreman made contact with Appellant, which he described as follows: “I identified
    
    myself, explained as to why he had been stopped, asked for identification. I get that
    
    identification. I asked him 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 Appellant told him “they had purchased pseudoephedrine
    
    at Walmart.” (RR, 25-26). Foreman believed Appellant was not being truthful
    
    
                                             16
    because Amis had not received a report of such a sale. (RR, 26). Foreman’s next
    
    question was whether Boyett “used methamphetamine,” to which, according to
    
    Foreman, Appellant 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 (Appellant) had liquid
    
    heet inside the vehicle.” (RR, 26). Foreman clarified that before getting that
    
    response he told Appellant that the police knew that Appellant and Jessica 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 Jessica Boyett. (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 Jessica 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 Jessica
    
    Boyett to the police department, and seized their vehicle. (RR, 33034). Foreman
    
    stated that before towing the vehicle, someone would have made an inventory
    
    search of the vehicle. (RR, 34).
    
          After she was booked in, Jessica Boyett was twice interviewed by Foreman
    
    and Officer Moore in the CID room. (RR, 36-40). Although admitting that she
    
    used methamphetamine, Jessica Boyett would not admit to transporting anything
    
    with the intent to manufacture methamphetamine. (RR, 41-42). Jessica Boyett was
    
    returned to the booking area where may have heard Foreman and Moore discussing
    
    whether they should interview Appellant. (RR, 42-43). According to Foreman,
    
    Jessica Boyett 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 (Jessica Boyett) did indicate that liquid heet 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).
    
          Appellant was kept at the police department overnight because the officers
    
    wanted to ask him questions, but Appellant needed sleep and “it had been a very
    
    long day.” (RR, 50). Thus, Appellant was not interrogated until the following
    
    morning. During the interrogation the following morning, Foreman spoke with
    
    Appellant about his methamphetamine use. (RR, 51). Appellant 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).
    
          Appellant 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 Appellant told him what he wanted to hear, his vehicle would be taken
    
    from him. (RR, 79-80, 92). Appellant also stated that recording failed to include at
    
    the end a discussion about whether Appellant had earned the return of his vehicle.
    
    (RR, 81-82, 94). Foreman earlier declared that no promises or threats were made
    
    against Appellant and Jessica Boyett in connection with their providing
    
    information about their crime. (RR, 38, 42, 45, 46, 48, 53, 58, 65-66). With one
                                            19
    exception, Foreman was never asked to specifically deny the accusations in that
    
    regard made by Appellant or Jessica Boyett. (RR, 69). Foreman admitted that he
    
    encouraged Jessica Boyett to speak with him without waiting to consult with an
    
    attorney, which could take “a month” or more. (RR, 46).
    
          Appellant also testified that soon after he arrived at the police department,
    
    Foreman asked him questions about what he or Jessica Boyett had planned to do
    
    with the items found in the truck. (RR, 85-86). Although Appellant was in custody,
    
    no Miranda warning was provided in connection with that questioning. Appellant
    
    offered Foreman an innocent explanation for his possession of each of the items.
    
    (RR, 95-96). Jessica Boyett 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. Jessica Boyett 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). Jessica Boyett 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). Boyett
    
    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 he had agreed with Jessica 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, 180, 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 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. Finally, Appellant will argue that the judicial
    
    confession offered in support of his 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 his 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 he 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 violate
    
    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 his plea from not guilty to guilty. If
    
    this ruling was erroneous, then Appellant’s plea was involuntary or conditional. He
    
    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
    
    he was required by a police officer to stop the vehicle he was driving along a
    
    highway and then detained, and (2) the information gathered as a result of the
    
    seizure and a subsequent warrantless, but ostensibly legal, search of Appellant’s
    
    
                                             23
    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 Jessica 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.
    
           Finally, another issue is presented. Appellant was scheduled to be tried
    
    jointly with Jessica Boyett before the same jury. Appellant assumed, however, that
    
    
                                              24
    the State would not seek to use the statements the police obtained from Jessica
    
    Boyett as evidence against him. Thus, the admissibility of Jessica Boyett’s
    
    statements as to Appellant was not raised in his 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 Jessica 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. Jessica 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 821
    , 823 (Tex. Crim. App. 1940); see also Byrd v. State, 
    187 S.W.3d 436
    , 441
    
    
    
    
                                             25
    (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 determine 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
    
    interaction to decide whether a reasonable person would have felt free to ignore the
    
    
                                             26
    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 do 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
    
    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.
    
    
                                             27
          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 said “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
    
    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.
    
          Thus, in order to lawfully conduct an investigative detention, an officer must
    
    have reasonable suspicion that an individual is involved in criminal activity. 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
    
    
                                              28
    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
    
    offense. Id. See also State v. Houghton, 
    384 S.W.3d 441
    , 446-447 (Tex. App. Fort
    
    Worth 2012, no pet.).
    
    
    
    
                                             29
             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 driven
    
    by Appellant 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 Appellant committed the
    
    traffic offense when Appellant 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 Jessica 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
    
    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,
    
    
                                             30
    however, no testimony concerning those other factors. There was no testimony that
    
    Appellant swerved (as perhaps opposed to drifted) across the line, 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.
    
          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
    
    
                                             31
    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 Appellant’s driving as he allegedly did, 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
    
    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
    
    
                                             32
    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 did 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 Jessica 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
    
    Home Depot and a Walmart 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
    
    
                                            33
    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)
    
    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 his arrest
          Appellant’s vehicle was not legally stopped. Other than purportedly
    
    witnessing a violation of the transportation code (which Appellant shows above did
    
    not occur), the only additional information Foreman obtained before conducting
    
    the warrantless search of the vehicle was a statement by Appellant that he had used
    
                                             34
    methamphetamine previously. This is not reasonable suspicion that ripened to
    
    probable cause, which is required for the search.
    
          The trial court apparently believed that Appellant 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 him
    
    that I knew him and Jessica Boyett 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 of) a
    
    purchase of pseudoephedrine at the second CVS store.
    
          Appellant was under no obligation to even respond to the accusation.
    
    Appellant’s silence on the matter and his admission that he has used meth in the
    
    past neither proved nor suggested anything. In certain circumstances, deceptive
    
    answers to questions normally associated with the traffic may rise to reasonable
    
    suspicion if coupled with other facts. However, Appellant’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 Appellant’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.
    
    
                                             35
    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).
    
             Appellant’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 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.).
    
    
    
    
                                             36
          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
    
    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
    
    
                                             37
    belief to conclude that Appellant and Jessica 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 Jessica 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
    
    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 two retain 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.”
    
    
                                            38
    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 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.
    
    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
    
    
                                              39
    “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 he 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, § 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, 
    575 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,
    
    
                                              40
    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, 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.
    
          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
    
    
                                              41
    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
    
    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.
    
    
                                               42
    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 Jessica 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
          2. Issue Two: 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.
              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 he was arrested and in police custody at the station, rather than remain
    
    silent, Appellant chose to answer questions without the benefit of counsel because
    
    he: (1) was expressly denied access to counsel; and (2) was threatened with loss of
    
    his vehicle unless he told the officer what the officer wanted to hear. These claims
    
    were not denied by Foreman. 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
    
    weight to be given their testimony. Romero v. State, 
    800 S.W.2d 539
    , 543 (Tex.
    
    
                                             45
    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
    
    of the Due Process Clause of the Fourteenth Amendment. Collins, 352 S.W.2d at
    
    
                                             46
    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 unique
    
    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
    
    (1966); Reck v. Pate, 
    367 U.S. 433
    , 440-441 (1961); Rogers v. Richmond, 
    365 U.S. 47
    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, 
    667 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 he told jailer prior to his interview that he 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
    
    Jessica Boyett by the police. Contrary to the trial court’s unsupported conclusion,
    
    Appellant’s claim does not appear exaggerated.
    
          The trial court also failed to address Appellant’s claims about his
    
    conversation with Foreman shortly before the recorded interview on September 25,
    
    2013. Yet, Appellant clearly described a threat (loss of his pickup) that would
    
    make his decision to give up his right to remain silent “unlikely to have been the
    
    
                                             49
    product of an essentially free and unconstrained choice,” as spoken of in Alvarado,
    
    912 S.W.2d at 211. This is especially true when unconditional return of the pickup
    
    was promised if he cooperated.
    
              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.
    
    
    
    
                                              50
          3. Issue Three: The judicial confession offered in support of
             Appellant’s plea of guilty was insufficient to show guilt of criminal
             conspiracy, which is required by Texas Code of Criminal Procedure
             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
    
    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
    
    
                                              51
    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
    
    (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 52
    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).
    
          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, 180). This presumably
    
    means that there was evidence that Appellant had agreed with Jessica 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.
    
    
    
    
                                             53
          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). 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. 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, in 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
    
    
                                             54
    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.,
    
    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
    
    
    
    
                                              55
    of Criminal Procedure Article 1.15. Appellant asks this court to reverse his plea of
    
    guilty and remand this case back to the trial court for a new trial.
    
    
    
    
                                              56
    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 his plea of guilty, and (3) remand this case for a new trial.
    
                                           Respectfully submitted,
    
                                           Michael Mowla
                                           445 E. FM 1382 No. 3-718
                                           Cedar Hill, Texas 75104
                                           Phone: 972-795-2401
                                           Fax: 972-692-6636
                                           michael@mowlalaw.com
                                           Texas Bar No. 24048680
                                           Attorney for Appellant
    
    
    
                                           /s/ Michael Mowla
                                           Michael Mowla
    
    
    XI.   Certificate of Service
    
           I certify that on September 5, 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).
    
    
    
    
                                           /s/ Michael Mowla
                                           Michael Mowla
    
    
    
                                             57
    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 10,247 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
    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).
    
    
    
    
                                           /s/ Michael Mowla
                                           Michael Mowla
    
    
    
    
                                             58