                                  NO. 12-14-00287-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

BRANDEE MICHELLE NICHOLS,                       §      APPEAL FROM THE 114TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
        Brandee Michelle Nichols appeals her conviction for possession of less than one gram of
methamphetamine. In two issues, Appellant argues that the trial court erred in denying her
motion to suppress evidence. We modify the judgment and affirm as modified.


                                         BACKGROUND
        Texas Department of Public Safety (DPS) Trooper Cody Shepherd was on patrol when he
encountered a vehicle traveling on the roadway in the opposite direction with its high beam
lights illuminated.   Because the driver did not change to her low beam headlights as she
approached, Shepherd determined that she had committed a traffic violation and initiated a traffic
stop.
        Appellant was the driver of the vehicle. She claimed that her low beam headlights were,
in fact, illuminated, but were brighter than most vehicles’ lights. Shepherd allowed her to
demonstrate the difference between headlight settings and, nonetheless, determined that
Appellant passed him with her high beam headlights illuminated.
        When Appellant first lowered her window, Shepherd smelled the strong odor of an
alcoholic beverage. He also noticed that Appellant was slurring her words. Shepherd asked
Appellant to exit the vehicle. As she did so, Shepherd noticed that Appellant was a bit unsteady
on her feet and asked her if she had been drinking. Appellant responded that she had consumed
two beers. As a result, Shepherd initiated field sobriety tests. In two of the three tests, Appellant
showed signs that she was intoxicated.
        Shepherd next asked Appellant to blow into a portable breathalyzer. Appellant asked if
she could have an attorney present. Shepherd responded that she did not have to blow into the
portable breathalyzer if she preferred to wait for an attorney. Appellant elected not to provide a
breath sample.
        Shepherd asked Appellant if she felt intoxicated. She indicated that she did not, but
rather, that she felt tipsy. She also indicated that on an intoxication scale of one to ten, she rated
her level as a four or five. Ultimately, Shepherd determined that Appellant was intoxicated and
arrested her for driving under the influence.
        There were two passengers in Appellant’s vehicle. Shepherd inquired whether either of
them were capable of driving the vehicle. Each passenger declined. Shepherd further inquired
whether Appellant could have someone else drive the vehicle. But it was determined that there
was not anyone who could retrieve the vehicle in a timely manner. As a result, Shepherd
contacted a wrecker to impound it.
        Pursuant to DPS policy, Shepherd commenced an inventory search of Appellant’s
vehicle. During his search, Shepherd retrieved Appellant’s purse, inside of which he discovered
a pipe typically used to ingest or smoke illegal narcotics.
        Shepherd confronted Appellant about his discovery and asked if he was going to find
anything else in the vehicle. Shepherd told Appellant that if she was honest with him, they could
“work something out.” But he warned her that if she tried to hide something and he later found
it, her situation would “be worse” and she would “have big problems.” In response, Appellant
told Shepherd she had methamphetamine in the vehicle. Shepherd continued his search and
eventually found the methamphetamine.
        Appellant was charged by indictment with possession of less than one gram of
methamphetamine. The State further alleged that Appellant previously had been convicted of
two state jail felony convictions, thereby enhancing the punishment range to that of a third
degree felony.1


        1
          See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(b) (West 2010); TEX. PENAL CODE ANN.
§ 12.425(a) (West Supp. 2014).


                                                   2
           Appellant filed a motion to suppress, arguing that (1) the traffic stop was improper
because Shepherd did not have reasonable suspicion that Appellant had committed a traffic
offense, (2) her arrest for driving under the influence was improper because Shepherd lacked
probable cause, and (3) the methamphetamine was discovered only after Shepherd improperly
coerced or induced Appellant to disclose its presence in the vehicle. Following a hearing on
Appellant’s motion, the trial court overruled it. Pursuant to Appellant’s request, the trial court
subsequently made written findings of fact and conclusions of law.
           Thereafter, Appellant pleaded “guilty” as charged. The matter proceeded to a bench trial
on punishment, at which Appellant pleaded “true” to the enhancement allegations in the
indictment. Ultimately, the trial court sentenced Appellant to imprisonment for five years, and
this appeal followed.


                                        MOTION TO SUPPRESS
           In its findings of fact and conclusions of law, the trial court determined that Shepherd’s
discovery of Appellant’s methamphetamine was the result of a proper search by virtue of (1) his
taking an inventory of the vehicle’s contents, (2) the automobile exception to the warrant
requirement, or (3) probable cause based on the discovery of the pipe used for smoking illegal
narcotics. In her first and second issues, Appellant argues that the trial court erred in denying her
motion because (1) the traffic stop was illegal because Shepherd lacked probable cause to stop
her and (2) the discovery of the methamphetamine was induced by Shepherd’s promises and
threats.
Standard of Review
           We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When ruling on a motion to suppress evidence, the trial court is the exclusive trier of fact



                                                   3
and judge of the witnesses’ credibility. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Moreover,
if, as here, the trial judge makes express findings of fact, we view the evidence in the light most
favorable to the trial judge’s ruling and determine whether the evidence supports those factual
findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When there is not an
express finding on an issue, we infer implicit findings of fact that support the trial court’s ruling
as long as those findings are supported by the record. See id.
         The prevailing party is entitled to “the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence.” State v. Castleberry, 332 S.W.3d
460, 465 (Tex. Crim. App. 2011). We review the trial court’s legal conclusions de novo and
uphold the ruling so long as it is supported by the record and correct under any legal theory
applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda v.
State, 317 S.W.3d 907, 907–08 (Tex. App.–Houston [14th Dist.] 2010, no pet.).
Legality of the Traffic Stop
         A police officer may stop and detain a motorist who commits a traffic violation within
the officer’s view. See Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135
L. Ed. 2d 89 (1996); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In addition,
an officer may conduct a temporary detention if the officer has reasonable suspicion to believe
that a person is violating the law. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005). Reasonable suspicion is dependent upon both the content of the information possessed by
the police and its degree of reliability. See Alabama v. White, 496 U.S. 325, 330, 110 S. Ct.
2412, 2416–17, 110 L. Ed. 2d 301 (1990); Walter v. State, 28S.W.3d 538, 542 (Tex. Crim. App.
2000).
         A driver approaching another vehicle must utilize the lowermost distribution of light or
composite beam. See TEX. TRANSP. CODE ANN. § 547.333(c)(1) (West 2011). Appellant argues
that Shepherd’s traffic stop was invalid because her headlights were not set to high beam, and
thus, she did not commit a traffic offense. A video recording of the traffic stop was introduced
into evidence. In the video, Appellant asserted that her low beams, not high beams, were
illuminated. Shepherd can be heard agreeing with Appellant’s assertion. But at the hearing on
the motion to suppress, Shepherd testified that he was one hundred percent certain that



                                                 4
Appellant’s high beam lights were illuminated when she passed him. Shepherd further explained
that he agreed with Appellant as a method of diffusing a potential argument and he believed that
Appellant thought she had her low beams illuminated even though, in fact, she did not.
        The question of whether Appellant’s lights were set to high beam can be resolved by an
assessment of whether Shepherd’s testimony was credible.               We defer to the trial court’s
assessment of the facts before it. We further note that the trial court’s determination that
Appellant committed a traffic violation is reasonable in light of the evidence before it.
Accordingly, we hold that the trial court did not abuse its discretion in concluding that the traffic
stop was legal. Appellant’s first issue is overruled.
Discovery of Contraband Induced by Promises and Threats
        We next consider Appellant’s contention that the search was improper because
Shepherd’s promises coerced or induced Appellant to disclose that methamphetamine was
present in the vehicle. The trial court construed Appellant’s argument to be that Appellant’s
“statement as to the location of the methamphetamine was coerced or induced and that her desire
to remain silent was overcome by [Shepherd’s] promise.” The trial court noted that, as a result,
Appellant sought to suppress both her statement concerning the presence of contraband as well
as the contraband discovered because of her statement. On appeal, Appellant defines the crux of
her argument to be that any implied consent to search for the methamphetamine was involuntary
because Shepherd obtained Appellant’s consent through promises and threats.
Preservation of Error
        Where a motion to suppress makes broad arguments and otherwise fails to bring the
specific matter to the trial court's attention that an appellant later seeks to raise on appeal, error is
not preserved. See Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). Moreover,
when considering an argument on a motion to suppress, a complaint that could, in isolation, be
read to express more than one legal argument generally will not preserve all potentially relevant
arguments for appeal. See id. Only when there are clear contextual clues indicating that the
party was, in fact, making a particular argument will that argument be preserved. Id. Thus,
because appellate contentions must comport with specific assertions made in a motion to
suppress, an appellant fails to preserve error when she files a motion to suppress arguing one
legal theory at trial and then asserts a different legal theory on appeal. Rothstein v. State, 267




                                                   5
S.W.3d 366, 373 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); see also TEX. R. APP. P.
33.1.
        In her second issue, Appellant argues that Shepherd’s search was not a valid inventory
search or a search incident to arrest. Appellant failed to preserve these arguments because she
did not raise them in her motion to suppress or during the hearing thereon. See Resendez, 306
S.W.3d at 313. Therefore, we limit our analysis of Appellant’s second issue to whether her
statement to Shepherd was induced by improper promises or threats.
        Governing Law and Application
        The State cannot use a statement that was induced by a promise “of such an influential
nature that it could cause a defendant to speak untruthfully.” Henson v. State, 440 S.W.3d 732,
743 (Tex. App.–Austin 2013, no pet.) (quoting Henderson v. State, 962 S.W.2d 544, 564 (Tex.
Crim. App. 1997)). For a promise to render a statement inadmissible, the promise must be
positive for the defendant, made or sanctioned by someone in authority, and of such an
influential nature that the defendant would speak untruthfully in response. See Muniz v. State,
851 S.W.3d 238, 254 (Tex. Crim. App. 1993). Statements made by a law enforcement officer
that a confession sometimes results in leniency is a general statement that does not render a
confession involuntary. See Coleman v. State, 440 S.W.3d 218, 223 (Tex. App.–Houston [14th
Dist.] 2013, no pet.). Statements by a law enforcement officer that it will “go better” if a
defendant cooperates with police is a prediction about a future event and not a promise. Mason
v. State, 116 S.W.3d 248, 260 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d).
        Similarly, the State cannot use a statement that was the result of a defendant’s will being
overcome by law enforcement coercion. See Miller v. State, 312 S.W.3d 162, 167 (Tex. App.–
Fort Worth 2010, no pet.). The State improperly overcomes a defendant’s will when a law
enforcement officer’s coercive conduct was of such a nature that a statement from a defendant
was “unlikely to have been the product of an essentially free and unconstrained choice[.]” Id.
(quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)).
        Here, Shepherd never made a specific promise to Appellant.          He never stated that
Appellant would get a specific sentence if she was honest with him. Rather, he stated that it
would “be worse” for Appellant to conceal things from him rather than to cooperate with him.
Based on our review of the record, it is apparent that Appellant’s statement to Shepherd
regarding the presence of methamphetamine was not induced by a promise of such an influential



                                                 6
nature that it could cause Appellant to speak untruthfully. See Henson, 440 S.W.3d at 743.
Further, there is no indication that Appellant’s statement was the result of her will’s being
overcome by law enforcement coercion. See Miller, 312 S.W.3d at 167. Thus, we conclude that
the evidence supports the trial court’s finding that Shepherd properly relied upon Appellant’s
statement that methamphetamine was present in the vehicle and the search of Appellant’s vehicle
was proper. Therefore, with due deference given to the trial court’s ruling, we hold that the trial
court did not abuse its discretion in denying Appellant’s motion to suppress in this regard.
Appellant’s second issue is overruled.


                                             JUDGMENT
       When it has the necessary information before it, an appellate court may correct a trial
court’s written judgment to reflect its oral pronouncement. Thompson v. State, 108 S.W.3d 287,
290 (Tex. Crim. App. 2003); Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.–Tyler 2008, no
pet.). The Texas Rules of Appellate Procedure expressly authorize us to modify the judgment of
the trial court. See TEX. R. APP. P. 43.2.
       The written judgment in this case sets forth that there was no first or second enhancement
paragraph. Instead, it states that Appellant pleaded “true” to a jurisdictional paragraph and that
the trial court found the jurisdictional paragraph to be “true.”
       The record before us demonstrates that Appellant pleaded “true” to the two enhancement
paragraphs in the indictment. The trial court accepted Appellant’s pleas of “true.” There was no
jurisdictional paragraph such as the one referenced in the judgment. Consequently, the judgment
must be modified.


                                                DISPOSITION
       We have the necessary information to modify the judgment so that it speaks the truth.
See id. We, therefore, modify the trial court’s judgment to reflect that (1) Appellant pleaded
“true” to enhancement paragraphs one and two, (2) the trial court found enhancement paragraphs
one and two to be “true,” and (3) there was no plea made with regard to the jurisdictional
paragraph. Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment as modified.




                                                  7
                                                                BRIAN HOYLE
                                                                   Justice

Opinion delivered September 2, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         SEPTEMBER 2, 2015


                                          NO. 12-14-00287-CR


                                BRANDEE MICHELLE NICHOLS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 114th District Court
                          of Smith County, Texas (Tr.Ct.No. 114-0561-14)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that Appellant pleaded “true” to enhancement
paragraphs one and two, the trial court found enhancement paragraphs one and two “true,” and the
plea on the jurisdictional paragraph was “none” and as modified, the trial court’s judgment is
affirmed; and that this decision be certified to the trial court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
