                                                                               ACCEPTED
                                                                           06-15-00024-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      11/9/2015 2:16:36 PM
                                                                          DEBBIE AUTREY
                                                                                    CLERK




                 ORAL ARGUMENT WAIVED
                                                          FILED IN
                                                   6th COURT OF APPEALS
                  CAUSE NO. 06-15-00024-CR           TEXARKANA, TEXAS
                                                   11/9/2015 2:16:36 PM
                                                       DEBBIE AUTREY
                           IN THE                          Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                  RODNEY BOYETT, Appellant

                              V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

          ON APPEAL FROM THE 6TH DISTRICT COURT;
       LAMAR COUNTY, TEXAS; TRIAL COURT NO. 25506;
                HONORABLE WILL BIARD, JUDGE
____________________________________________________________

      APPELLEE’S (STATE’S) BRIEF
____________________________________________________________


                    Gary D. Young
                    Lamar County and District Attorney
                    Lamar County Courthouse
                    119 North Main
                    Paris, Texas 75460
                    (903) 737-2470
                    (903) 737-2455 (fax)

                    ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

             Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                TABLE OF CONTENTS

                                                                                     PAGE:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . .                             i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .              iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . .                viii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . .                                        x

ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . . . .                 xi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . .                        11

ARGUMENT AND AUTHORITIES

        ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL
        COURT DID NOT ERR IN DENYING THE APPELLANT’S
        MOTION TO SUPPRESS BECAUSE THE TRAFFIC STOP
        WAS SUFFICIENTLY SUPPORTED BY REASONABLE
        SUSPICION, AND WAS JUSTIFIED. . . . . . . . . . . . .                           12

        ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL
        COURT DID NOT ERR IN DENYING THE APPELLANT’S
        MOTION TO SUPPRESS BECAUSE RODNEY BOYETT’S
        ARREST WAS SUPPORTED BY PROBABLE CAUSE; THE
        APPELLANT’S CONFESSION WAS VOLUNTARY; AND THE
        TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
        ADMITTING THE RECORDED STATEMENT/
        CONFESSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

                                                -ii-
         ISSUE PRESENTED IN REPLY NO. 3: THE EVIDENCE
         WAS SUFFICIENT TO SUBSTANTIATE THE
         APPELLANT’S, RODNEY BOYETT’S, GUILT OF
         CRIMINAL CONSPIRACY UNDER ARTICLE 1.15
         OF THE TEXAS CODE OF CRIMINAL
         PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              30

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   35

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . .                            35

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . .                     36




                                                     -iii-
                                INDEX OF AUTHORITIES

CASES:                                                                                PAGE:

Beck v. Ohio, 379 U.S. 89, 91; 85 S.Ct. 223; 13 L.Ed.2d
      142 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        23

Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim.
      App. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        19

Blanks v. State, 968 S.W.2d 414, 420, 421 (Tex. App.--Texarkana
      1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    21,22,29

Butler v. State, 990 S.W.2d 298, 302 (Tex. App.--Texarkana
      1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        24

Canada v. State, 446 S.W.2d 601, 603-04 (Tex. App.--
     Texarkana 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . .                 17

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
     App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      12,13

Colvin v. State, 467 S.W.3d 647 (Tex. App.--Texarkana
      2015, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . .        19,30

Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007)
      (citations omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . .           19

Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel
      Op.] 1979) (op. on reh’g) . . . . . . . . . . . . . . . . . . . . .                 31

Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.--Beaumont
     2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         14

Flowers v. State, 438 S.W.3d 86, 107 (Tex. App.--Texarkana
     2014, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          13



                                                   -iv-
CASES:                                                                                     PAGE:

Garcia v. State, 827 S.W.2d 937, 942 (Tex. Crim.
      App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             24

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.
     2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           13

Graves v. State, 307 S.W.3d 483, 489 (Tex. App.--Texarkana
     2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               12

Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App.
     1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           19

Guzman v. State, 955 S.W.2d 85, 89, 90 (Tex. Crim. App.
    1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    12,13,23,26

Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.--Austin
     1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               14

Herrera v. State, 241 S.W.3d 520, 525, 526 (Tex. Crim.
      App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               20

Martinez v. State, 29 S.W.3d 609, 612 (Tex. App.--Houston
      [1st Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . . . . . . . . .               15,16

Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim.
      App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             19

Miller v. State, 418 S.W.3d 692, 696-97 (Tex. App.--Houston
      [14th Dist.] 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . .                     14

Miranda v. Arizona, 384 U.S. 436, 442-457, 467-79; 86 S. Ct.
     1602; 16 L. Ed. 2d 694 (1966) . . . . . . . . . . . . . . . . .                           20

Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. [Panel
        Op.] 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            31


                                                     -v-
CASES:                                                                                   PAGE:

Renfro v. State, 958 S.W.2d 880, 884 (Tex. App.--Texarkana
      1997, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         29,30

Rhodes v. State, 84 S.W.3d 10, 14 (Tex. App.--Texarkana
     2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        24,26

Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana
     2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            12

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
     1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      13,19

Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim.
      App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            29

State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App.
       1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      13

State v. Kerwick, 393 S.W.3d 270, 275 (Tex. Crim.
        App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        17,18

State v. Ross, 32 S.W.3d 853, 856-57 (Tex. Crim. App.
       2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      12

State v. Saenz, 411 S.W.3d 488, 490 (Tex. Crim. App.
       2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      19

Thompson v. Keohane, 516 U.S. 99, 113-14; 116 S.Ct. 457;
     133 L.Ed.2d 383 (1995) . . . . . . . . . . . . . . . . . . . . . . .                   19

Tyler v. State, 161 S.W.3d 745, 749 (Tex. App.--Fort Worth
       2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       15,16

Vanderburg v. State, 365 S.W.3d 712, 713-14 (Tex. App.--
     Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . .                   17


                                                      -vi-
CASES:                                                                                      PAGE:

Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.
       1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       12-13



STATUTES:                                                                                   PAGE:

TEX. CODE CRIM. PROC. ART. 1.15 . . . . . . . . . . . . . . . . . . .                           11

TEX. CODE CRIM. PROC. ART. 1.15 (West 2005) . . . . . . . .                                     31

TEX. CODE CRIM. PROC. ART. 14.01(b) (West 2014) . . . . .                                  23,26,27

TEX. CODE CRIM. PROC. ART. 38.21 . . . . . . . . . . . . . . . . . .                         20,26

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . .

TEX. TRANSP. CODE ANN. §545.060 (West 2011) . . . . . . . .                                  11,15

TEX. TRANSP. CODE ANN. §545.060 (a) (West 2011) . . . . .                                       16

TEX. TRANSP. CODE ANN. §545.060 (a)(1)-(2)
     (West 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     13-14




                                                     -vii-
                      STATEMENT OF THE CASE

      This is a conspiracy case.

      Law enforcement officers in Lamar County were notified that Jessica

Boyett had just purchased pseudoephedrine at CVS located at 507

Clarksville in downtown Paris. See RR, pgs. 9, 13. Law enforcement

officers had also located a vehicle, a white pickup, that was registered to

Rodney Boyett. See RR, pg. 14. After surveillance and an investigation, a

traffic stop was initiated and a probable cause search of the vehicle (white

pickup) revealed pseudoephedrine tablets and other chemicals.       Rodney

Boyett was arrested and charged with possession of chemicals. See RR, pgs.

33-34.

      Rodney Boyett filed a motion to suppress which, after a hearing, was

denied by the trial court. See RR, pg. 170. Rodney Boyett then accepted a

plea bargain agreement that assessed a $500.00 fine and sentenced him to

five years confinement in the Texas Department of Criminal Justice

Institutional Division; however, that was probated for a period of three

years. See RR, pg. 179. Rodney Boyett timely filed his notice of appeal.

See CR, pg. 187. The certification included that “the right to appeal the

judge’s ruling on the motion to suppress.” See CR, pg. 182.


                                   -viii-
By this appeal, Rodney Boyett brings 3 issues/points of error.




                              -ix-
           STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas will waive oral argument. See Tex. R. App. P.

38.1(e), 38.2(a)(1).




                                 -x-
             ISSUES PRESENTED IN REPLY

ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID
NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS BECAUSE THE TRAFFIC STOP WAS SUFFICIENTLY
SUPPORTED BY REASONABLE SUSPICION, AND WAS
JUSTIFIED.

ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS BECAUSE RODNEY BOYETT’S ARREST WAS
SUPPORTED BY PROBABLE CAUSE; THE APPELLANT’S
CONFESSION WAS VOLUNTARY; AND THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN ADMITING THE RECORDED
STATEEMNT/CONFESSION.

ISSUE PRESENTED IN REPLY NO. 3: THE EVIDENCE WAS
SUFFICIENT TO SUBSTANTIATE THE APPELLANT’S, RODNEY
BOYETT’S, GUILT OF CRIMINAL CONSPIRACY UNDER
ARTICLE 1.15 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE.




                        -xi-
                       CAUSE NO. 06-15-00024-CR

                                   IN THE

                             COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                       RODNEY BOYETT, Appellant

                                      V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

         ON APPEAL FROM THE 6TH DISTRICT COURT;
      LAMAR COUNTY, TEXAS; TRIAL COURT NO. 25506;
                HONABLE WILL BIARD, JUDGE
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO HONORABLE SIXTH COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through its Lamar County

and District Attorney’s Office, files this its Appellee’s Brief under Rule 38.2

of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Rodney Boyett will be referred to as “the

appellant” or “Rodney Boyett.” The State of Texas will be referred to as

“the State” or “appellee.”


                                      -1-
                        STATEMENT OF FACTS

      Factual Background.

      In the fall of 2013, Lieutenant Anson Amis (Amis) with the sheriff’s

department had a program that monitored the purchase of pseudoephedrine.

See RR, pg. 9. Through that system, he was allowed to “flag” (RR, pgs. 9,

13) people or certain individuals that he thought might have suspicious

buying patterns.   See RR, pgs. 9, 13.      Amis contacted Leigh Foreman

(Foreman) with the Paris Police Department and stated that Jessica Boyett

had just purchased pseudoephedrine at CVS located at 507 Clarksville in

downtown Paris. See RR, pgs. 9, 13.

      On September 24, 2013, Foreman became involved in an investigation

of Rodney and Jessica Boyett. See RR, pg. 9. Rodney and Jessica Boyett

were married (RR, pg. 9), and they lived in Rattan, Oklahoma. See RR, pg.

14.

      According to Amis, Jessica and Rodney Boyett had the same address

on their drivers license and were buying pills in the Paris area at different

pharmacies in a close timeframe together.      See RR, pg. 12.      Foreman

believed that they were being deceptive in their buying of pseudoephedrine,

which they were purchasing for the use of making methamphetamine. See


                                      -2-
RR, pg. 12.

      Amis called Foreman and asked if he could go to the CVS Pharmacy

out by Wal-Mart, which is at 3710 Lamar Avenue. See RR, pgs. 13, 17.

Foreman did. See RR, pg. 14. The purpose in going to a different pharmacy

was to see if Rodney Boyett was going to buy. See RR, pg. 14. “We usually

call them a pill run.” See RR, pg. 15.

      Amis had located a vehicle, a white pickup, that was registered to

Rodney Boyett. See RR, pg. 14. The vehicle was in the parking lot, and had

Oklahoma tags. See RR, pg. 16.

      Foreman, Amis and Detective Tommy Moore began surveillance in

unmarked vehicles at 3710 Lamar. See RR, pg. 16. The pickup left, and

they began following the vehicle. See RR, pg. 17. The vehicle went to

Home Depot, where it stayed for “a short while.” See RR, pg. 17. Foreman

observed both Rodney and Jessica Boyett entered the store, then leave the

store and get back into the vehicle. See RR, pgs. 18-19. They went back

towards Wal-Mart. See RR, pg. 19.

      The officers continued the surveillance and followed them as they

traveled back to Wal-Mart. See RR, pg. 19. They were in Wal-Mart, again

for a short time, before “exiting Wal-Mart, getting in their vehicle and


                                     -3-
leaving.” See RR, pg. 19. See also RR, pg. 21.

      The officers followed them to see if they would make any other stops

before leaving to go back towards Oklahoma. See RR, pg. 21. “They did

not.” See RR, pg. 21.

      Observation of a Traffic violation.

      In about the 1100 block of the northeast loop, Foreman observed a

traffic violation, where they failed to maintain a single lane. See RR, pg. 21.

There was really heavy traffic on the loop, so Foreman waited for them to

exit on North Main (i.e. Highway 271) heading northbound; at which time,

he initiated a traffic stop. See RR, pg. 22.

      As Foreman approached on the driver’s side, Rodney Boyett was in

the driver’s seat. See RR, pg. 23. Foreman identified himself, explained to

Rodney Boyett why he had been stopped and asked for identification. See

RR, pg. 25. Foreman asked Rodney Boyett to exit the vehicle, so he could

speak with him about his activity for the day. See RR, pg. 25. Foreman and

Rodney Boyett were at the rear of the vehicle. See RR, pg. 29.

      According to Rodney Boyett, he had been to the CVS at 3710 Lamar,

Wal-Mart and Home Depot. See RR, pg. 25. Rodney Boyett also said that

they had purchased pseudoephedrine at Wal-Mart. See RR, pg. 26. Rodney


                                       -4-
Boyett also said that he had liquid heat in the vehicle. See RR, pgs. 26, 29.

Finally, Rodney Boyett told Foreman that “they were good people.” See

RR, pg. 28. See also RR, pg. 29.

      Detective Moore began speaking with Ms. Boyett. See RR, pg. 29.

They were at the front of the vehicle on the passenger side. See RR, pg. 29.

Later, Foreman asked her if they had any ingredients to make

methamphetamine, and she said they did not. See RR, pg. 30.

      Foreman went to their vehicle, and he did search the vehicle (RR, pgs.

30, 32) for the ingredients used to manufacture methamphetamine. See RR,

pgs. 30. Foreman believed that he had probable cause to believe that there

was evidence of a crime in the vehicle. See RR, pg. 32. Rodney and Jessica

Boyett were detained at that time. See RR, pg. 36. See also RR, pg. 64

(“they were still in detention.”).

      Probable Cause Search and Arrest.

      During the search, Foreman found boxes of ephedrine and

pseudoephedrine tablets. See RR, pgs. 33, 65. Also, Foreman found two

bottles of liquid heat, rubber tubing and there bottles of hydrogen peroxide.

See RR, pgs. 33, 64. Foreman took possession of those items and placed

Rodney and Jessica Boyett under arrest for possession of certain chemicals.


                                     -5-
See RR, pgs. 33-34, 37.

      An actual backup vehicle arrived, and they were placed in the back of

that unit because suspects were not transported in unmarked vehicles. See

RR, pg. 34. They were transported to the Paris Police Department and

placed in the booking room. See RR, pgs. 37, 65.

      Interviews of Jessica Boyett.

      Jessica Boyett was booked-in first. See RR, pg. 37. Foreman asked

Jessica Boyett if she wanted to speak with him, and she did. See RR, pg. 39.

In the CID office (RR, pg. 38), Foreman and Detective Moore interviewed

Jessica Boyett first. See RR, pg. 36. Foreman read her Miranda rights and

warning during her two interviews that night. See RR, pgs. 38-40.

      During the first interview, Jessica Boyett was deceptive about the

intended use. See RR, pg. 40. “She lied.” See RR, pg. 40. She did not ask

to have a lawyer. See RR, pg. 45.

      Prior to the second interview, Jessica Boyett indicated that she wanted

to speak with us again, and that she wanted to tell the truth. See RR, pg. 43.

Foreman escorted her back to the CID interview room and gave her the

Miranda warning, once again. See RR, pg. 44.

      During the second interview, Jessica Boyett did indicate that the


                                      -6-
liquid heat was used to manufacture methamphetamine. See RR, pg. 44.

Jessica Boyett said that she had used methamphetamine the previous day by

shooting it up with a syringe, and that she (and Rodney) had both used

methamphetamine the previous day after he had gotten off work. See RR,

pg. 44.

      Also,    Jessica    Boyett       talked    about   Rodney   Boyett   cooking

methamphetamine. See RR, pg. 45. It was cooked on a shed on their

property. See RR, pgs. 45, 50. During the interviews, Jessica Boyett said

that “she didn’t know how to cook, but she had been present while it was

cooked, but that she [did] not know how to cook it.” See RR, pg. 49. See

also State’s Exhibit 2.

      Interview of Rodney Boyett.

      Foreman and Detective Moore decided to interview Rodney Boyett on

the following day. See RR, pg. 50. Foreman began his interview with

Rodney Boyett at approximately 8:30 a.m. that morning. S e e R R , p g . 5 1 .

He was “Mirandized.” See RR, pg. 51.

      During     the      interview,     Rodney      Boyett   talked   about   his

methamphetamine use, since he was 14 years of age. See RR, pg. 51. He

used it by injection, and he showed a needle mark on his left arm where he


                                           -7-
had used methamphetamine. See RR, pg. 51.

      Eventually, Rodney Boyett said that they had a shed where he cooked

it. See RR, pg. 52. He went in to specific detail about how his particular

process of cooking methamphetamine, a “Red P.” See RR, pg. 52 (“red

phosphorous”). See also State’s Exhibit 1.

      Procedural Background.

      On November 14, 2013, a grand jury in Lamar County returned an

original indictment against Rodney Boyett that charged him in two counts

with the felony offense of conspiracy to manufacture a controlled substance,

namely, methamphetamine of more than one gram but less than four grams.

See CR, pg. 5. On April 29, 2014, Rodney Boyett filed his motion to

suppress. See CR, pgs. 73-75.

      Pre-Trial Suppression Hearing on February 3, 2015.

      On February 3, 2015, the trial court called cause number 25505, after

impaneling a jury the previous day. See RR, pg. 6. The trial court approved

the agreement between counsel as to a motion in limine. See RR, pgs. 6-7.

The trial court then proceeded with the motion to suppress. See RR, pg. 7.

      The State stipulated that the search of the vehicle was without a

warrant, and called its first witness (Foreman). See RR, pg. 8. During


                                     -8-
Foreman’s testimony, the proceedings were interrupted, and the trial court

invoked “the Rule” with the exception of the expert-witnesses. See RR, pgs.

10-11. Upon the conclusion of Foreman’s testimony, the State rested for

purposes of the motion to suppress. See RR, pg. 71.

      The defense presented several witnesses, which included the

testimony of Rodney Boyett. See RR, pgs. 71-98. Upon the conclusion of

the testimony from the defense witnesses, the trial court ruled, “[b]ased on

the totality of the evidence that the Court has heard and considered, the

Court is going to deny the Motion to Suppress.” See RR, pg. 170.

      Subsequent Proceedings.

      Subsequently, the State abandoned count 2 in the original indictment,

and the trial court accepted a plea bargain agreement. See RR, pg. 178. The

trial court then found Rodney Boyett guilty and sentenced him to five (5)

years in the Texas Department of Criminal Justice Institutional Division but

placed him on community supervision for a period of three (3) years. See

RR, pg. 179. The trial court assessed a $500.00 fine. See RR, pg. 179.

      In addition, the trial court approved the portion of the plea bargain

agreement that allowed Rodney Boyett to appeal any pre-trial motions,

including the motion to suppress. See RR, pg. 179. On February 3, 2015,


                                    -9-
the trial court signed its judgment of conviction by court--waiver of jury

trial. See CR, pgs. 188-189.

      On February 4, 2015, Rodney Boyett timely filed his notice of appeal.

See CR, pg. 187. The trial court’s certification specifically included that

“Defendant shall have the right to appeal the judge’s ruling on the motion to

suppress and all pretrial motions.” See CR, pg. 182.

      Background in this Court of Appeals.

      On or about February 10, 2015, Rodney Boyett filed his notice of

appeal in this Court. By electronic filing or about March 31st, the District

Clerk of Lamar County filed the Clerk’s Record. The official court reporter

filed the Reporter’s Record on or about July 7th along with the exhibits on or

about July 13, 2015.

      The appellant (Rodney Boyett) filed a motion to extend time to file his

brief, which this Court granted on or about July 27, 2015. The appellant

then filed his brief on September 8, 2015.

      The State sought, and was granted, its motion to extend time to file its

brief. The State will be filing its brief on November 9, 2015.




                                     -10-
                   SUMMARY OF THE ARGUMENT

      In summary, the trial court did not err in denying the appellant’s,

Rodney Boyett’s, motion to suppress and the appellant’s three (3)

issues/points of error should be overruled for the following reasons:

      (1)    The traffic stop was sufficiently supported by reasonable

suspicion on the basis of (a) section 545.060 of the Texas Transportation

Code and (b) the officers’ investigation of the pharmacy logs of purchases of

pseudoephedrine in Lamar County.

      (2)    The appellant’s arrest without a warrant was sufficiently

supported by probable cause; and after Rodney Boyett’s lawful arrest, his

recorded statement/confession was voluntary. Because the appellant’s arrest

was lawful and his statement/confession was voluntary, the trial court did

not abuse its discretion in admitting State’s Exhibit 1 during the suppression

hearing on February 3, 2015.

      (3)    Finally, the evidence was sufficient to substantiate the

appellant’s guilt of criminal conspiracy under article 1.15 of the Texas Code

of Criminal Procedure. The judicial confession contained with the written

plea admonishments established that Rodney Boyett “committed and [was]




                                     -11-
guilty of each and every act as alleged” in the charging instrument. See CR,

pg. 180. Thus, the final judgment of conviction should be affirmed.

                   ARGUMENT AND AUTHORITIES

ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID
NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS BECAUSE THE TRAFFIC STOP WAS SUFFICIENTLY
SUPPORTED BY REASONABLE SUSPICION, AND WAS
JUSTIFIED.

      A.     Standard of Review: Motion to Suppress.

      This Court reviews a trial court’s decision on a motion to suppress

evidence by applying a bifurcated standard of review. See Graves v. State,

307 S.W.3d 483, 489 (Tex. App.--Texarkana 2010, pet. ref’d).; Rogers v.

State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009, pet. ref’d).

Because the trial court is the exclusive trier of fact and judge of witness

credibility at a suppression hearing, this Court affords almost total deference

to its determination of facts supported by the record. See State v. Ross, 32

S.W.3d 853, 856-57 (Tex. Crim. App. 2000); Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). This Court affords the same deference to a trial

court’s rulings on mixed questions of law and fact if the resolution of those

questions turns on an evaluation of credibility and demeanor. See Villarreal


                                     -12-
v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). This Court reviews

de novo the trial court’s application of the law and determination of

questions not turning on credibility. See Carmouche, 10 S.W.3d at 327;

Guzman, 955 S.W.2d at 89. Since all the evidence is viewed in the light

most favorable to the trial court’s ruling, this Court is obligated to uphold

the denial of the appellant’s motion to suppress if it was supported by the

record and was correct under any theory of law applicable to the case. See

Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999).

      The trial court’s evidentiary ruling “will be upheld on appeal if it is

correct on any theory of law that finds support in the record.” See Flowers

v. State, 438 S.W.3d 86, 107 (Tex. App.--Texarkana 2014, pet. ref’d) (citing

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); Romero v.

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

      B.     Section 545.060 of the Texas Transportation Code.

      Section 545.060 of the Texas Transportation Code stated in pertinent

part that “an operator on a roadway divided into two or more clearly marked

lanes for traffic: (1) shall drive as nearly as practical entirely within a single

lane; and (2) may not move from the lane unless that movement can be made


                                       -13-
safely.” See Tex. Transp. Code Ann. § 545.060(a)(1)-(2) (West 2011). This

statute is violated only when the vehicle’s movement is unsafe.1 See Miller

v. State, 418 S.W.3d 692, 696-97 (Tex. App.--Houston [14th Dist.] 2013, pet.

ref’d); Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.--Beaumont 2000, no

pet.); Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.--Austin 1998,

pet. ref’d).

       C.      Application of Law to the Facts in the Present Case.

     1.    The Evidence Supported the Trial Court’s Finding of Fact
and Conclusion of Law that the Vehicle’s Movement Was Unsafe.

       In the present case, Foreman testified during the suppression hearing

to the following:

               Q.     So what happened next?

              A.    We followed them to see if they would make any
       other stops before leaving to go back towards Oklahoma. They
       did not. In about the 1100 block of the northeast loop I
       observed a traffic violation where they failed to maintain a
       single lane, which is described as vehicles left side tires -- they
       were in the right lane, and the vehicles left side tires crossed
       over the center line into the left lane before going back.

             Q.    Okay. Is that a traffic violation under the Safety
       Code In the State of Texas?


1
 See RR, pg. 141 (“The holding here and the argument that I want to make to the Court is
that the language in this statute is that there has to be testimony that there was an unsafe
failure to stay in a lane.”). See also RR, pg. 146 (“there was no testimony that it was
unsafe.”).

                                           -14-
                 A.      Under the Transportation Code.

                 Q.      I’m sorry. Transportation Code?

                 A.      Yes.

See RR, pgs. 21-22.

          Although Rodney Boyett contended in his brief that “Foreman’s

description of what he saw was insufficient to fully describe a violation of §

545.060[,]”2 the evidence could have supported the trial court’s finding that

the vehicle movement was unsafe. See Tyler v. State, 161 S.W.3d 745, 749

(Tex. App.--Fort Worth 2005, no pet.) (holding that the evidence

supports the trial court’s implicit finding that appellant’s act of moving out

of his lane of traffic, “straddling” the white line separating the traveling lane

from the shoulder, and “erratically” re-entering his lane of traffic at an angle

was unsafe and therefore a violation of section 545.060). In Tyler, the court

of appeals held that the officer “could have stopped appellant because he

saw him fail to maintain a single lane of traffic.” See id (citing Martinez v.

State, 29 S.W.3d 609, 612 (Tex. App.--Houston [1st Dist.] 2000, pet. ref’d)

(holding that it was not unreasonable for the officer to conclude appellant’s

swerve onto the shoulder of a busy highway in the early hours of the

morning was unsafe).
2
    See generally Appellant’s Brief, pg. 30. See also RR, pgs. 141, 146.

                                             -15-
      Similarly, here, the evidence could have supported the trial court’s

finding and conclusion of law (CR, pgs. 196, 199) that the vehicle

movement was unsafe because Foreman testified that “there was really

heavy traffic” still on the Loop. See RR, pg. 22. Also, Foreman testified

that he “waited for them to exit on North Main headed northbound at which

time I initiated a traffic stop.”   See RR, pg. 22.     That testimony was

sufficient for the trial court to make finding of fact number 9. See CR, pg.

196. Further, Foreman’s testimony was sufficient to support the trial court’s

third conclusion of law that “Mr. Boyett moved from his lane when such

movement could not have been made safely.” See CR, pg. 199.

      As in Martinez, it was not unreasonable for Foreman to conclude that

the vehicle’s left side tires crossing over the center line was unsafe. See

Martinez, 29 S.W.3d at 612. In conclusion, Foreman could have stopped the

appellant, Rodney Boyett, because he saw him fail to maintain a single lane

of traffic.   See Tyler, 161 S.W.3d at 749; Tex. Transp. Code Ann. §

545.060(a) (West 2011). The stop was justified, and that the trial court

properly denied the appellant’s motion to suppress.       See Martinez, 29

S.W.3d at 612.




                                    -16-
      2.     The Trial Court Could Have Found Additional Reasonable

Suspicion.

      In his brief, Rodney Boyett claimed that the information about

pseudoephedrine purchases did not amount to reasonable suspicion, but a

court may find reasonable suspicion even though “each fact in isolation may

be insufficient.” See State v. Kerwick, 393 S.W.3d 270, 275 (Tex. Crim.

App. 2013). In the present case, the trial court heard Foreman’s testimony

that in the fall of 2013, Lieutenant Anson Amis with the sheriff’s department

had a program that monitored the purchase of pseudoephedrine. See RR, pg.

9. Through that system, he was allowed to “flag” (RR, pgs. 9, 13) people or

certain individuals that he thought might have suspicious buying patterns.

See RR, pgs. 9, 13. Through that system and the investigation of pharmacy

logs, law enforcement in Lamar County have lawfully obtained search

warrants of residences. See Canada v. State, 446 S.W.2d 601, 603-04 (Tex.

App.--Texarkana 2014, no pet.); Vanderburg v. State, 365 S.W.3d 712, 713-

14 (Tex. App.--Texarkana 2012, no pet.).

      When Amis contacted Foreman and stated that Jessica Boyett had just

purchased pseudoephedrine at CVS located at 507 Clarksville in downtown

Paris (RR, pgs. 9, 13), Foreman testified that he believed Jessica Boyett and


                                    -17-
Rodney Boyett were being deceptive in their buying of pseudoephedrine,

and that they were purchasing pseudoephedrine for the use of making

methamphetamine. See RR, pg. 12. When Foreman observed the Boyett’s

vehicle make stops at pharmacies, he had developed reasonable suspicion of

a “pill run.” See RR, pg. 15 (“We usually call them a pill run.”).

      While the fact of the pseudoephedrine purchase at CVS located at 507

Clarksville in downtown Paris (RR, pgs. 9, 13), in isolation, may have been

insufficient, the trial court could have found reasonable suspicion because

the officers observed stops at other pharmacies, and Foreman articulated

specific facts that supported a “pill run.” See Kerwick, 393 S.W.3d at 275.

Because the trial court could have found reasonable suspicion on that

additional basis, Rodney Boyett’s argument in his brief should be rejected.

See Appellant’s Brief, pgs. 33-34.          Accordingly, the appellant’s first

issue/point of error should be overruled.

ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID
NOT ERR IN DENYING THE APPELLANT’S MOTION TO
SUPPRESS BECAUSE RODNEY BOYETT’S ARREST WAS
SUPPORTED BY PROBABLE CAUSE; THE APPELLANT’S
CONFESSION WAS VOLUNTARY; AND THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN ADMITING THE RECORDED
STATEEMNT/CONFESSION.




                                     -18-
      A.     Standard of Review.

      “[T]he trial court is the ‘sole and exclusive trier of fact and judge of

the credibility of the witnesses’ and the evidence presented at a hearing on a

motion to suppress, particularly where the motion is based on the

voluntariness of a confession.” See Colvin v. State, 467 S.W.3d 647 (Tex.

App.--Texarkana 2015, pet. ref’d) (citing Delao v. State, 235 S.W.3d 235,

238 (Tex. Crim. App. 2007) (citations omitted); Green v. State, 934 S.W.2d

92, 98 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990); Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App.

1973)). Thus, in reviewing the trial court’s factual determination of the

circumstances surrounding the interrogation, this Court gives almost total

deference to the trial court. See Martinez v. State, 348 S.W.3d 919, 922-23

(Tex. Crim. App. 2011).      However, because the question of whether a

reasonable person would feel that he was not free to terminate the

questioning and leave is a mixed question of law and fact that does not

depend on the trial court’s credibility determination, this Court employs a de

novo standard when evaluating this question. See Thompson v. Keohane,

516 U.S. 99, 113-14; 116 S.Ct. 457; 133 L.Ed.2d 383 (1995); State v. Saenz,

411 S.W.3d 488, 490 (Tex. Crim. App. 2013).


                                     -19-
      B.   This Court Should Give Almost Total Deference to the Trial
Court, Which Did Not Abuse its Discretion in Admitting the Recorded
Statement/Confession in State’s Exhibit 1.

      With his second issue/point of error, Rodney Boyett alleged that the

trial court erred when it denied the 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 article 38.21 of the Texas Code of

Criminal Procedure. See Appellant’s Brief, pg. 44.

      1.   The Appellant Had the Initial Burden of Proving that His
Statement Was the Product of “Custodial Interrogation”.

      The    United     States   Supreme      Court   has    defined    “custodial

interrogation” as “questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of

action in any significant way.” See Miranda v. Arizona, 384 U.S. 436, 442-

457, 467-79; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966); Herrera v. State, 241

S.W.3d 520, 525 (Tex. Crim. App. 2007). At trial, the defendant bears the

initial burden of proving that a statement was the product of “custodial

interrogation.” See Herrera, 241 S.W.3d at 526.



                                       -20-
        The mere filing of a motion to suppress does not thrust a burden
        on the State to show compliance with Miranda . . . warnings
        unless and until the defendant proves that the statements he
        wishes to exclude were the product of custodial interrogation.
        Thus, the State has no burden at all unless ‘the record as a
        whole clearly establishe[s]’ that the defendant’s statement was
        the product of custodial interrogation by an agent for law
        enforcement. It is the defendant’s initial burden to establish
        those facts on the record.

See id (italics added in the opinion).

        In the present case, Rodney Boyett had the initial burden of proving

that his statement was the product of “custodial interrogation” at trial. See

id. Assuming that Rodney Boyett met his initial burden, the trial court did

not abuse its discretion in admitting the statement during the suppression

hearing. See Blanks v. State, 968 S.W.2d 414, 420 (Tex. App.--Texarkana

1998, pet. ref’d). In Blanks, an aggravated robbery case, this Court reasoned

that:

        We agree with [the appellant] Blanks that, at the time he made
        oral statements which implicated himself, the inquiry turned
        into a custodial interrogation. This is because at that point and
        time there was probable cause to arrest Blanks, and he was
        certainly a focus of the investigation. However, [officer]
        Simmons testified, and the trial court found, that Blanks was
        immediately given the statutory warnings before any other
        statements were made. The inculpatory statements contained in
        the “Statement of a Person in Custody” were taken after Blanks
        had received the appropriate warnings and waived his rights.
        Although Blanks was in custody, he was properly warned
        before giving the statement which was admitted at trial. The

                                         -21-
          trial court did not abuse its discretion in admitting the
          statement.

See id.

          As in Blanks, at the time Rodney Boyett made the oral statements in

State’s Exhibit 1 which implicated himself, Foreman’s inquiry had turned

into a custodial interrogation. See id. As in Blanks, this is because at that

point and time, there probable cause to arrest Rodney Boyett.            See id.

However, Foreman testified that Rodney Boyett was given the statutory

warnings3 before any other statement was made. See id. See also RR, pg.

51; State’s Exhibit 1. As in Blanks, the inculpatory statements contained in

State’s Exhibit 1 were taken after Rodney Boyett had received the

appropriate warnings and waived his rights. See Blanks, 968 S.W.2d at 420.

Although Rodney Boyett was in custody, he was properly warned before

giving the statement, see id, which was admitted during the suppression

hearing. See RR, pg. 57.

          As in Blanks, the trial court did not abuse its discretion in admitting

the statement in State’s Exhibit 1. See Blanks, 968 S.W.2d at 420. This

Court should hold accordingly.



3
    See State’s Exhibit 1, beginning at 00:47.

                                                 -22-
     2.     The Appellant’s Arrest Was Supported by Probable Cause,
And Not Illegal.

      a.     Applicable Law: Probable Cause.

      With the second sub-part of his second issue/point of error, Rodney

Boyett contended in his brief that his recorded statement/confession was

obtained, and was tainted, by his illegal/unlawful arrest because “there was a

lack of probable cause to support the warrantless arrest.” See Appellant’s

Brief, pg. 44. But, article 14.01 of the Texas Code of Criminal Procedure

provided that “[a] peace officer may arrest an offender without a warrant for

any offense committed in his presence or within his view.” See Tex. Code

Crim. Proc. Ann. art. 14.01(b) (West 2014); Guzman v. State, 955 S.W.2d

85, 90 (Tex. Crim. App. 1997).

      In Guzman, the Texas Court of Criminal Appeals held that the test for

probable cause for a warrantless arrest is:

      “Whether at that moment the facts and circumstances within the
      officer’s knowledge and of which [he] had reasonably
      trustworthy information were sufficient to warrant a prudent
      man in believing the arrested person had committed or was
      committing an offense.”

See Guzman, 955 S.W.2d at 90. See also Beck v. Ohio, 379 U.S. 89, 91; 85

S.Ct. 223; 13 L.Ed.2d 142 (1964) (“whether at that moment the facts and

circumstances within their knowledge and of which they had reasonably

                                      -23-
trustworthy information were sufficient to warrant a prudent man in

believing that the petitioner had committed or was committing an offense.”).

      In determining whether probable cause existed, this Court’s

evaluation of the facts surrounding the event is completely objective. See

Rhodes v. State, 84 S.W.3d 10, 14 (Tex. App.--Texarkana 2002, no pet.)

(citing Garcia v. State, 827 S.W.2d 937, 942 (Tex. Crim. App. 1992)).

When several officers are involved in investigating a crime, the sum of

information known to cooperating officers at the time of arrest is to be

considered in determining whether probable cause to arrest existed. See

Butler v. State, 990 S.W.2d 298, 302 (Tex. App.--Texarkana 1999, no pet.).

      b.    Sufficient Probable Cause Existed in the Present Case.

      In applying the law to the present case, several officers (Foreman,

Amis, Moore) in Lamar County were involved in investigating a crime that

began when Amis contacted Foreman and stated that Jessica Boyett had just

purchased pseudoephedrine at CVS located at 507 Clarksville in downtown

Paris. See RR, pgs. 9, 13. Amis had located a vehicle, a white pickup, that

was registered to Rodney Boyett. See RR, pg. 14. The officers began

surveillance in unmarked vehicles at 3710 Lamar. See RR, pg. 16. When

the white pickup left, the officers began following the vehicle. See RR, pg.


                                    -24-
17. The vehicle went to Home Depot, where it stayed for “a short while.”

See RR, pg. 17. When the vehicle went back towards Wal-Mart (RR, pg.

19), the officers continued their surveillance and followed them as they

traveled back to Wal-Mart. See RR, pg. 19. They were in Wal-Mart, again

for a short time, before “exiting Wal-Mart, getting in their vehicle and

leaving.” See RR, pg. 19. See also RR, pg. 21.

      The officers followed them to see if they would make any other stops

before leaving to go back towards Oklahoma. See RR, pg. 21. “They did

not.” See RR, pg. 21. When they did not, Foreman, who already had

sufficient reasonable suspicion for a “pill run” (RR, pg. 15), initiated a

lawful traffic stop on Highway 271, which was the highway that leads back

to Oklahoma. See RR, pg. 22.

      During the traffic stop, Foreman and Rodney Boyett conversed at the

rear of the vehicle (RR, pg. 29). According to Foreman, this conversation

was “approximately five, no longer than ten” minutes, a reasonable time.

See RR, pg. 31. During their conversation, Rodney Boyett said that they had

purchased pseudoephedrine at Wal-Mart. See RR, pg. 26. Rodney Boyett

also said that he had liquid heat in the vehicle. See RR, pgs. 26, 29.

      With that information, Foreman had sufficient probable cause to


                                      -25-
search the vehicle. See RR, pgs. 30, 32. According to Foreman’s testimony,

he believed that he had probable cause to believe that there was evidence of

a crime in the vehicle. See RR, pg. 32.

      The probable cause search revealed two boxes of ephedrine,

pseudoephedrine tablets that were consistent with the purchases that Amis

had “flagged.” See RR, pg. 33. The search also revealed two bottles of

liquid heat, rubber tubing and three bottles of hydrogen peroxide. See RR,

pg. 33. Foreman then took possession of these items and placed Rodney

Boyett under arrest for possession of certain chemicals. See RR, pgs. 33-34.

      When the facts surrounding the investigation and traffic stop of

September 24, 2013 were viewed objectively, see Rhodes, 84 S.W.3d at 14,

sufficient probable cause existed for Foreman to place Rodney Boyett under

arrest without a warrant. See generally Tex. Code Crim. Proc. Ann. art.

14.01(b) (West 2014).      Foreman’s surveillance of the vehicle, which

included stops at other pharmacies (other than the CVS at 507 Clarksville),

provided Foreman with sufficient probable cause to believe that

pseudoephedrine had been purchased and was within the vehicle at the time

of the lawful traffic stop. Foreman’s probable cause search of the vehicle,

which included pseudoephedrine tablets from pharmacies that Amis had


                                    -26-
“flagged,” established that Rodney Boyett had committed an offense in

Foreman’s presence or within his view on September 24, 2013 in Paris,

Lamar County, Texas. Therefore, Foreman was authorized to arrest Rodney

Boyett without a warrant. See Tex. Code Crim. Proc. Ann. art. 14.01(b)

(West 2014); Guzman, 955 S.W.2d at 90.

      That arrest without a warrant was lawful, and supported by sufficient

probable cause. Therefore, the appellant’s second issue/point of error should

be overruled.

      3.     The Statement/Confession Was Voluntarily Given.

      With the third and final sub-part of his second issue/point of error,

Rodney Boyett contended that the trial court erred when it denied his motion

to suppress because it was not shown to be freely and voluntarily made

without compulsion or persuasion as required by Article 38.21 of the Texas

Code of Criminal Procedure. See Appellant’s Brief, pg. 44. In this regard,

Rodney Boyett alleged that (1) he 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. See Appellant’s Brief, pg. 45. See also

Appellant’s Brief, pg. 49 [“Appellant clearly described a threat (loss of

pickup) that would make his decision to give up his right to remain silent”].


                                     -27-
         (a)   Allegedly Denied Access to Counsel.

         In the present case, Foreman testified that he did not hear from any of

the police officers that Rodney Boyett had asked for a lawyer overnight. See

RR, pgs. 70-71. Also, Foreman testified to the following:

               Q.     Okay. Now, did Mr. Boyett ever ask for a lawyer?

               A.     No.

              Q.     Did he ever ask you, like Mrs. Boyett did, about
         what might happen down the road?

               A.     I don’t believe he did.

See RR, pg. 52.

         As the “sole and exclusive trier of fact and judge of the credibility of

the witnesses,” the trial court was in the best position to judge Foreman’s

credibility and that of Rodney Boyett who allegedly said, “I want a lawyer”

to some unidentified person. See RR, pgs. 77-79. Even if true, Rodney

Boyett did not ask for a lawyer when he was given his statutory and

Miranda warnings by Foreman. See State’s Exhibit 1, beginning at 00:47.

Obviously, the trial resolved that Rodney Boyett was not denied access to

counsel, and that implicit/implied finding should be given deference by this

Court.



                                        -28-
      (b)   Allegedly Threatened With the Loss of a Vehicle.

      In order for a confession to be rendered involuntary by promises by

law enforcement, the appellant must show that the promise (1) was positive;

(2) of some benefit to the defendant; (3) made or sanctioned by someone in

authority; and (4) of such an influential nature that a defendant would speak

untruthfully in response thereto. See Blanks, 968 S.W.2d at 421 (citing

Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991)); Renfro v.

State, 958 S.W.2d 880, 884 (Tex. App.--Texarkana 1997, pet. ref’d).

      Here, Rodney Boyett alleged that he was threatened with the loss of

his vehicle, and that he clearly described a threat (loss of his pickup). See

Appellant’s Brief, pgs. 45, 49. According to Rodney Boyett, “[t]hat was

before we got in the interrogation room. It was in the hallway.” See RR, pg.

81. However, Foreman testified to the following question and answer:

             Q.    BY MS. POLLARD: Okay. So I’m just going to
      ask you a wrap-up question. In your talking or Detective
      Moore talking to Jessica and Rodney Boyett, at any point in
      time outside the CID -- and I’m talking about on the scene on
      the road side, in the PD in the book-in room, on the way to the
      book-in room. At any point in time did you threaten or promise
      Jessica or Rodney Boyett anything if they would talk?

            A.     No.

See RR, pg. 58.


                                    -29-
      Again, the trial court was the “sole and exclusive trier of fact and

judge of the credibility of the witnesses.” See Colvin, 467 S.W.3d at 647.

As such, the trial court was in the best position to judge the credibility of the

witnesses, and the trial court could have believed Foreman’s testimony, in

whole or in part, over that of Rodney Boyett. Further, it could have resolved

that any promise over the loss of a pickup did not rise to the level of an

“unequivocal conditional agreement” whereby in exchange for a confession

Foreman would see to it that the pickup was returned to Rodney Boyett. See

Renfro, 958 S.W.2d at 884.

      In the end, the trial resolved that the statement/confession was given

voluntarily, and that implicit/implied finding should be given deference by

this Court. Accordingly, the appellant’s second issue/point of error should

be overruled.

ISSUE PRESENTED IN REPLY NO. 3: THE EVIDENCE WAS
SUFFICIENT TO SUBSTANTIATE THE APPELLANT’S, RODNEY
BOYETT’S, GUILT OF CRIMINAL CONSPIRACY UNDER
ARTICLE 1.15 OF THE TEXAS CODE OF CRIMINAL
PROCEDURE.

     A.    Standard of Review:          Article 1.15 of the Texas Code of
Criminal Procedure.

      It is well settled that a judicial confession, standing alone, is sufficient

to sustain a conviction upon a guilty plea, and to satisfy the requirements of

                                      -30-
article 1.15 of the Texas Code of Criminal Procedure. See Dinnery v. State,

592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh’g);

Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. [Panel Op.] 1978).

See also Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005).

        B.    Application of Law to the Judicial Confession in the Present
Case.

        Among the written plea admonishments (CR, pgs. 170-181), Rodney

Boyett signed a judicial confession, which reflected in pertinent part the

following:

               Upon my oath I swear my true name is RODNEY
        BOYETT and I request the papers in this cause reflect my true
        name. I am 35 years of age. I have read (or have had read to
        me) the indictment or information filed in this case and same
        has been reviewed with me by my attorney and I understand all
        matters contained therein; and I committed and am guilty of
        each and every act as alleged therein, except those acts
        expressly waived by the State.4 All of the facts alleged in the
        indictment or information are true and correct. I am guilty of
        the offense(s) charged as well as all lesser included offenses.

                                  *    *     *

See CR, pg. 180 (bold type added for emphasis).



4
 The State abandoned Count 2 (RR, pgs. 173, 176) in the indictment, which charged in
pertinent part that Rodney Boyett “in Lamar County, Texas on or about September 24,
2013, did then and there, with intent to unlawfully manufacture a controlled substance,
namely, Methamphetamine, possess or transport a chemical precursor, to-wit:
pseudoephedrine, Against the peace and dignity of the State.” See CR, pg. 5.

                                           -31-
         At the plea hearing, the following exchange then occurred in open

court:

                THE COURT: In the written plea admonishment, each
         of you executed what’s called a judicial confession. This is the
         evidence the State of Texas will introduce in each case in order
         to prove your guilt. By executing that document, each of you
         are giving up and waiving your right against self-incrimination.
         Do you understand?

               MS. BOYETT: Yes.

               MR. BOYETT: Yes.

                THE COURT: Okay. Mr. Haslam, have you explained
         these documents to your clients?

               MR. HASLAM: I have.

               THE COURT: In your opinion do you believe each of
         them understand their admonishments, their rights, and
         consequences of their pleas?

               MR. HASLAM: I do.

                THE COURT: It’s the Court’s understanding in -- and
         the plea agreement is identical, isn’t it?

               MS. POLLARD: Yes, Your Honor.

                THE COURT:         It’s the Court’s understanding in
         exchange for your plea of guilty, Mr. and Ms. Boyett, as to
         Count One the State is going to abandon Count Two in each
         case. The State’s recommendation for punishment is five years
         confinement in the Texas Department of Criminal Justice
         Institutional Division; however, that will be probated for a
         period of three years and a $500 fine. In addition, the State and

                                       -32-
      -- the State’s and your attorney -- part of the plea agreemetn is
      that you have the right to appeal any pre-trial matters in each of
      the cases, including the Motion to Suppress that was heard this
      morning that the Court denied. Is that your understanding as
      well?

            MS. BOYETT: Yes.

            MR. BOYETT: Yes.

            THE COURT: Is that your understanding, Mr. Haslam?

            MR. HASLAM: Yes, Your Honor.

            THE COURT: Does either side have any reason to
      believe the Defendants are incompetent?

            MS. POLLARD: No, Your Honor.

            MR. HASLAM: No.

             THE COURT: Okay. Ms. Boyett, to the allegations
      contained in the indictment, how do you plead -- as to the
      allegations contained in the indictment as to Count One, how do
      you plead, guilty or not guilty?

            MS. BOYETT: Guilty.

             THE COURT: And, Mr. Boyett, as to the allegations
      contained in your indictment as to Count One, how do you
      plead, guilty or not guilty?

            MR. BOYETT: Guilty.

                              *    *     *

See RR, pgs. 175-177.


                                       -33-
       In addition to the open plea of guilty, the trial court admitted into

evidence “the plea papers,” which included the admonishments and judicial

confession (marked as State’s Exhibit No. 1). See RR, pg. 178. The “plea

papers” were also filed with the District Clerk of Lamar County and made a

part of the Clerk’s record in this appellate proceeding. See CR, pgs. 170-

181. Because the written judicial confession, as evidence, was sufficient to

substantiate Rodney Boyett’s guilt of criminal conspiracy, the appellant’s

third issue/point of error should be overruled.

                                  PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered cause without

oral argument, this Court affirm the trial court’s final judgment of conviction

in all respects; adjudge court costs against the appellant; and for such other

and further relief, both at law and in equity, to which it may be justly and

legally entitled.




                                     -34-
                         Respectfully submitted,

                         Gary D. Young
                         Lamar County & District Attorney
                         Lamar County Courthouse
                         119 North Main
                         Paris, Texas 75460
                         (903) 737-2470
                         (903) 737-2455 (fax)

                         By:________________________________
                              Gary D. Young, County Attorney
                              SBN# 00785298
                              gyoung@co.lamar.tx.us

                         ATTORNEYS FOR THE STATE OF TEXAS

                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 8423 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -35-
                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the Appellee’s (State’s) Brief has been served on the 9th day of

November, 2015 upon the following:

            Michael Mowla
            445 E. FM 1382, No. 3-718
            Cedar Hill, TX 75104
            michael@mowlalaw.com


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -36-
