
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00765-CR


Kym Ray Perrucci, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 65,453, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


	A jury convicted Kym Ray Perrucci of the felony offense of possession of cocaine
in an amount of less than one gram.  After Perrucci pled true to enhancement paragraphs alleging
two prior felony offenses, the jury assessed punishment at six years in prison.  Perrucci challenges
his conviction, contending that the trial court erred by ordering him to pay court appointed attorney's
fees without first determining his ability to pay, allowing the prosecution to discuss the application
of parole law to him during his sentencing, denying his motion to suppress evidence, and denying
his requested jury instructions.  We will modify the judgment on the payment of the court appointed
attorney's fees and affirm the judgment as modified.


BACKGROUND

	At a pretrial suppression hearing, the trial court heard evidence that Officer
Josh Moore of the Temple Police Department stopped Perrucci's car in Temple at night for failing
to have a functioning light over the rear license plate and for inching into an intersection on a
red light.  The court also reviewed a patrol-car video recording of the traffic stop that broadcast some
audio from Moore's body microphone.  Moore recalled some unusual circumstances about his
interaction with Perrucci:  he was unable to produce his driver's license when it was requested, he
asserted that he was going to a gas station (having just passed one), he appeared nervous, and he
seemed to be concealing his right hand.  Because of Perrucci's actions, Moore requested consent to
search Perrucci's car.  Perrucci refused.  Moore attempted to summon a canine unit to the scene, but
none were available.
	In accordance with police department policy, Moore called his supervisor seeking
permission to make an arrest for failure to display a driver's license.  He received that permission
and arrested Perrucci.  Moore estimated that the length of time from the stop to the arrest was
"roughly twenty minutes."  Before beginning a pat-down search, Moore asked Perrucci whether he
had anything in his pocket that might poke, stick, or hurt Moore.  Perrucci stated truthfully that
he did not.  As Moore was placing Perrucci in the patrol car, Perrucci admitted that he had some
needles (1) containing cocaine underneath some clothes on the passenger seat of his car.  Moore
cautioned the other responding officers not to go into Perrucci's car because of the needles.  Moore
donned gloves and proceeded to search the car, where he found a syringe containing clear liquid, a
spoon with white residue, and a baggie that was later determined to contain 0.31 grams of cocaine.
After finding the evidence in Perrucci's car, Moore talked to Perrucci about possibly becoming a
confidential informant.  Perrucci agreed to speak with the narcotics division and was transported to
the Temple Police Department where he met with narcotics agent Amanda Locklear. 
	Perrucci also testified at the pretrial suppression hearing.  He acknowledged that he
told Moore about the drugs in the front seat of the car without any prompting from the officer:  "I
knew what the officer was after, whenever he came up to my car initially and asked to search it, they
know what they're looking for, when we're--so, yeah I volunteered that."  Perrucci asserted that he
made his statement out of concern for the officers' safety because he had hepatitis C.
	The trial court denied Perrucci's motion to suppress his statement to Moore and
the evidence of cocaine, and the case proceeded to trial.  The jury heard testimony from three State's
witnesses:  Officer Moore; Mona Herring, a property and evidence intake tech with the
Temple Police Department; and Brian Kivlighn, a forsensic scientist with the Texas Department of
Public Safety's crime lab.  Herring testified about the chain-of-custody of the evidence that the
police department received and sent to the lab, including the baggie, spoon, and syringe.  Kivlighn
confirmed that the substance in the syringe was cocaine.
	Perrucci testified in his own defense at trial, admitting that he knowingly and
intentionally possessed the cocaine, that it was on the front passenger seat of his car, and that he
had shot up cocaine earlier on the day of his arrest.  He further testified that he did not know whether
his car's license-plate light was out, that he had not produced his driver's license from the time of
his stop until the time of his arrest, and that his statement about the cocaine-containing syringe in
his car was not made in response to a question from Moore.  Perrucci agreed that his statement
was voluntary and denied that his statement was the result of coercion, threat, or force.  Perrucci
also informed the jury that he had been convicted in 2004 for the felony offenses of possession
of less than one gram of heroin and possession of Oxycodone and that he had been sentenced to
fifteen months in jail.
	The jury found Perrucci guilty of the state jail felony offense of possessing less
than one gram of cocaine, see Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .115(a), (b)
(West 2010), Perrucci pled true to enhancement paragraphs alleging two prior state jail felony
offenses that made his current offense eligible for punishment as a third-degree felony, see
Tex. Penal Code Ann. § 12.42(a)(1) (West Supp. 2010), and the jury assessed a six-year prison term
as punishment.  Following the jury's verdict of guilt and assessment of punishment, the trial court
signed a judgment sentencing Perrucci to six years in prison and ordering him to pay court costs and
attorney's fees, if he were able.  Perrucci now appeals.

ANALYSIS

Payment of attorney's fees
	The trial court's order states "DEFENDANT TO PAY COURT COSTS AND
ATTORNEYS FEES, IF ABLE, UPON RELEASE FROM INCARCERATION."  In his first
issue, Perrucci contends that the trial court erred by ordering him to pay $2,253.00 for his court-appointed attorney's fees without sufficient evidence to demonstrate that he had the ability
to pay those fees.  The State agrees that the record is silent on any material change in Perrucci's
circumstances since determination of his indigency and that the proper remedy is to reform the
judgment by removing the order for payment of court-appointed attorney's fees.
	A trial court may order a defendant to pay for his court-appointed legal counsel only
if the court determines that the defendant has financial resources enabling him to pay.  Tex. Code
Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010).  Because financial resources and ability to pay
are "critical elements" under article 26.05(g) that must be supported by the record, we review a
trial court's order that a defendant pay court-appointed attorney's fees for sufficiency of the
evidence.  Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).  We measure sufficiency
of the evidence by viewing all of the record evidence in the light most favorable to the verdict.  Id.
at 557. If the evidence does not support the order to pay attorney's fees, the proper remedy is to
delete the payment order from the judgment.  See id.
	This record does not reflect that the trial court determined whether Perrucci had
financial resources enabling him to pay the costs of his legal services.  Instead, the record shows that
Perrucci was afforded court-appointed counsel for trial and again on appeal because of his indigence. 
When a court determines that a defendant is indigent, there is a presumption that the defendant
remains indigent for the remainder of the proceedings in the case "unless a material change in the
defendant's financial circumstances occurs."  Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp.
2010).  No material change in Perrucci's financial circumstances is referenced in this record.  Thus,
we conclude that the portion of the judgment ordering Perrucci to pay attorney's fees was improper.
See Mayer, 309 S.W.3d at 555-56.  We sustain Perrucci's first issue.

Discussion of parole law
	In his second issue, Perrucci contends that the trial court erred by allowing the
prosecution to discuss the application of parole law to him in closing argument during sentencing.
While it is common knowledge that inmates are often paroled before serving their full sentences,
juries in felony cases are prohibited from considering or applying parole law in assessing
punishment.  Clark v. State, 643 S.W.2d 723, 724-25 (Tex. Crim. App. [Panel Op.] 1982) (noting
that prosecutor's argument went beyond general urging for lengthy penalty and focused on fact
that defendant previously received 20-year sentence for conviction but was paroled after only
three years); see also Tex. Code Crim. Proc. Ann. art. 37.07 § (4)(c) (West Supp. 2010) (providing
instruction that jury assessing punishment for offense punishable as third-degree felony is "not to
consider the manner in which the parole law may be applied to this particular defendant.").
	In support of this issue, Perrucci notes that during his sentencing-phase questioning
before the jury, the prosecutor discussed Perrucci's previous fifteen-month incarceration in state
jail--noting that it was served "day-for-day . . . you don't parole from state jail. . . . just do the
straight time.  Fifteen months means 15 calend[a]r months to the day"--and contrasted that with
parole-eligible offenses by noting that a full sentence may not be served in prison.  The prosecutor
then began to discuss the charge and explained the concept of "quarter time":

It says under law applicable in this case, if the defendant is sentenced to a term of
imprisonment he will not become eligible for parole until the actual time served
plus any good conduct time earned equals one-fourth of the sentence imposed.  Of
course eligibility for parole does not guarantee parole will be granted and you can't
consider parole for this defendant, but you're allowed to be made aware of the
existence of parole and how it applies in general to defendants.  What does that just
mean, one-quarter of the sentence?  I get a lot of questions.  I talk to some jurors after
trials, and they always have the same questions.  What does that mean one-quarter? 

[Defense counsel]:  Objection, Your Honor.  I'd ask him not to make any comments
other than what the legislature has asked us to say about parole.

THE COURT:  Sustained.

[Prosecutor]:  Judge, I'm allowed to explain the law.

THE COURT:  Okay.

[Prosecutor]:  Parole eligibility, one-quarter time, that's what this says under the law
applicable in this case, if the defendant is sentenced to a term of imprisonment he
will not become eligible for parole until the actual time served plus good conduct
time is one-fourth of the sentence imposed.  Like I said, eligibility for parole does
not guarantee that parole will be granted.  Now you have heard here that the range is,
two to ten years in prison, but we're dealing with potential quarter time for parole.
So what does that mean by way of quarter time?  That means if you sentence him to
two years well, if a defendant, not this defendant, but if a defendant is sentenced to
two years in prison, parole could look at him after he serves half a year, six months.
If a defendant is sentenced to say four years in prison, a quarter of that is a year.  And
not this defendant, but a defendant in a case that parole is looking at could look
at him in that time.  Ten years turns into two and a half years for parole could
conceivably grant parole for an individual. That's what quarter time means.  All right.
That's basically what they're saying in that language about the time he won't
become eligible for parole until the actual time served plus good conduct time is
one-fourth of the sentence imposed.  That's what you have in front of you.  Ladies
and gentlemen, he did 15 months last time.  The way I look at that, that should serve
as the floor because he should have learned from that.  He had the opportunity the
first time he was caught on probation to learn not to do this stuff, to avoid it, to get
the help he needs.  He had the opportunity when he was--

[Defense counsel]:  Objection, Your Honor.  He's arguing how the parole law is
going to be applied to this defendant.

THE COURT:  Overruled.


(Emphasis added.)  Perrucci contends that the prosecutor's argument asked the jury to consider
the application of parole law to him, particularly when the prosecutor asked the jury to consider
fifteen months as the "floor" of his sentencing range.
	The State argues that the defense's second objection was untimely and not sufficiently
specific and any error in the argument after the trial court sustained the first objection was waived.
Failure to preserve error through contemporaneous objection waives an improper parole-eligibility
argument.  Kelley v. State, 968 S.W.2d 395, 402 (Tex. App.--Tyler 1998, no pet.) (ruling that error
was waived for failure to request instruction to disregard and to object at all when argument
renewed); see Tex. R. App. P. 33.1(a).  Concluding that the defense's objection preserved error on
the parole-eligibility argument, we turn to Perrucci's second issue.
	Not every mention of parole laws necessitates reversal.  Clark, 643 S.W.2d at 725.
The code of criminal procedure requires that the jury be given certain instructions that include
information about parole eligibility.  Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007)
(citing Tex. Code Crim. Proc. Ann. art. 37.07 § (4)(a)).  Prosecutors may discuss parole-eligibility
formulas and give concrete examples of their application.  Id. (reversing appellate court ruling
because prosecutor's explanation of how parole-eligibility rules in jury charge worked with forty,
sixty, and seventy-five year sentences merely ensured that jury understood their instructions);
see also Taylor v. State, 911 S.W.2d 906, 910-12 (Tex. App.--Fort Worth 1995, pet. ref'd)
(affirming conviction where prosecutor used poster to show jury how parole-eligibility formula
worked but did not apply formula specifically to case being tried).  Although the prosecutor made
brief use of the word "him," the prosecutor clarified the generality of his reference by stating, "not
this defendant, but a defendant."  See Taylor, 233 S.W.3d at 359 (concluding that "prosecutor's
passing use of the words 'defendant' and 'he' in the course of giving his explanation" about
jury charge was insignificant, noting that statutory instruction itself uses words "defendant" and "he"
when describing rules of parole eligibility).  We conclude that the prosecutor's argument was an
attempt to explain generally the meaning of the jury instructions rather than to specifically apply
them to Perrucci.  See id.
	The prosecutor's argument that a fifteen-month sentence should be the "floor" of
Perrucci's punishment range was not part of the examples about quarter time for parole eligibility.
Even if we were to consider that argument as an improper application of parole law to Perrucci, it
was harmless because fifteen months is less than two years, the lowest level of Perrucci's available
punishment range.  See id.; see also Tex. Penal Code Ann. § 12.34 (West Supp. 2010); Tex. R. App.
P. 44.2(b).  We overrule Perrucci's second issue.



Motion to suppress
	In his third issue--briefed within his complaints about requested
jury instructions--Perrucci contends that the trial court erred by denying his motion to suppress
his statement to police about the needle and the evidence of cocaine because they were the
products of an unreasonably long detention.  The trial court made a finding that "[t]he approximate
eighteen minute delay between the stop of the defendant and his arrest for failure to produce a
driver's license was not unreasonable based on the surrounding circumstances."
	When reviewing the denial of a motion to suppress, we apply a bifurcated standard,
affording almost total deference to the trial court's determination of historical facts but reviewing
de novo a trial court's application of the law of search and seizure to the facts.  State v. Valtierra,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010).  When, as here, the trial judge makes express findings
of fact, we view the evidence in the light most favorable to the judge's ruling and determine whether
the evidence supports the factual findings.  Id.  If the ruling on the motion to suppress is "reasonably
supported by the record and is correct under any theory of law applicable to the case," it will be
sustained.  Id. at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
	The Fourth Amendment's protection against unreasonable searches and seizures
extends to all seizures of the person, including those that involve only a brief detention.  United
States v. Mendenhall, 446 U.S. 544, 551 (1980); see Leach v. State, 35 S.W.3d 232, 235
(Tex. App.--Austin 2000, no pet.); see also U.S. Const. amend. IV.  An officer conducts a lawful
temporary detention when he has reasonable suspicion to believe that a person is violating the law.
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  Investigative detentions such as
traffic stops must be temporary and last no longer than necessary to effectuate the purpose of
the stop.  Florida v. Royer, 460 U.S. 491, 500 (1983); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.
App. 2004).  The Supreme Court has rejected rigid time limitations on investigative detentions,
instead asking "whether the police diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it was necessary to detain the
defendant."  Kothe, 152 S.W.3d at 64-65 & n.41 (quoting United States v. Sharpe, 470 U.S. 675,
685-86 (1985) (refusing to "establish a per se rule that a 20-minute detention is too long")).  An
officer who has concluded an investigation of the conduct that initiated the stop may continue to
detain a person only if there is reasonable suspicion to believe that another offense has been or is
being committed.  Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).
	Whether reasonable suspicion exists is determined by considering the facts known
to the officer at the time of the detention.  See Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Davis,
947 S.W.2d at 243.  Reasonable suspicion exists if the officer has specific, articulable facts that,
when combined with rational inferences from those facts, would lead him to reasonably conclude
that the person detained is, has been, or soon will be engaged in criminal activity.  Derichsweiler
v. State, No. PD-0176-10, 2011 Tex. Crim. App. LEXIS 112, at *16 (Tex. Crim. App. Jan. 26,
2011); Ford, 158 S.W.3d at 492; see also Terry, 392 U.S. at 21-22.  This is an objective standard,
applied by considering the totality of the circumstances.  Derichsweiler, 2011 Tex. Crim. App.
LEXIS at *16.
	Perrucci contends that he was led to state that he had a needle containing cocaine in
his car because of his unreasonably long detention.  However, police officers on a routine traffic stop
may conduct information-gathering tasks such as asking about the driver's destination and purpose
for the trip, Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.--Austin 2000, pet. ref'd), requesting
a driver's license and car registration, and conducting a computer check on that information.  Kothe,
152 S.W.3d at 63.  These lawful information-gathering tasks were among the activities conducted
by Moore during the traffic stop, as reflected in the trial court's findings:

During the eighteen minutes, Officer Moore spoke with defendant, considered a
story defendant told about his activities that did not make sense, made observations
regarding defendant's behavior, attempted to identify defendant without defendant
producing a driver's license or identification card, ran defendant's name to confirm
his identity, ran defendant's name to check for outstanding warrants, ran defendant's
name to make sure he had a valid driver's license, requested consent to search
defendant's vehicle, called for a K-9 Officer to respond, and briefed a superior
officer to make the determination whether defendant should be arrested.


Based on those findings, the court concluded: "The approximate eighteen minute time period is not
an unreasonable amount of time to detain defendant based upon the surrounding circumstances." 	Further, the record demonstrates that Perrucci chose to make the statement about the
needle containing cocaine while getting into the patrol car after his arrest, not during the temporary
investigative detention.  Moore's reasonable suspicion that Perrucci was or had been violating the
law--i.e., having a non-illuminated license-plate light, driving into an intersection on a red light,
and failing to produce a driver's license--justified the temporary detention, and Moore diligently
pursued a course of investigation to confirm or dispel that suspicion in a timely manner.  Nothing
in this record suggests that the duration of Perrucci's detention, given his failure to produce his
driver's license, was unreasonable.  The trial court's ruling on the motion to suppress is reasonably
supported by this record, and we conclude that the court did not err in denying Perrucci's motion to
suppress.  Perrucci's third issue is overruled.



Jury instructions
	In his fourth issue--briefed within his third issue on the motion to suppress--Perrucci
contends that the trial court erred by denying three instructions directing the jury to disregard
evidence resulting from: (1) Perrucci's unlawful detention for an excessive period of time,
(2) coercive police practices to obtain Perrucci's statement, and (3) Perrucci's involuntary statement.
See Tex. Code Crim. Proc. Ann. arts. 38.22 § 6, .23(a) (West 2005).  Perrucci's analysis does
not link these statutes to any particular instruction, but rather he cites globally to the range of
pages in the record containing all the requested instructions.  We discern that his first and second
requests--about unlawful detention and coercive police practices--sought a specific voluntariness
instruction for constitutional due process claims under article 38.23(a), and the third request--about
his involuntary statement--sought a general instruction on voluntariness under article 38.22,
section 6.  See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008) (noting that first
step in deciding upon appropriate jury instruction is identifying theory of involuntariness).

 1.  Unlawful detention instruction
	Perrucci claims that a fact issue was raised under article 38.23(a) because, although
Moore had probable cause to stop him for the traffic violation, he unlawfully detained him for an
excessive period of time.  The specific voluntariness instruction in article 38.23(a) states:

No evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be
instructed that if it believes, or has a reasonable doubt, that the evidence was obtained
in violation of the provisions of this Article, then and in such event, the jury shall
disregard any such evidence so obtained.


Tex. Code Crim. Proc. Ann. art. 38.23(a) (emphasis added).  Thus, juries may be instructed to
disregard statements of the accused under the exclusionary rule in article 38.23(a) if such statements
were obtained in violation of the law, but this instruction is allowed "only if there is a factual
dispute as to how the evidence was obtained."  Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim.
App. 2007) (quoting Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986)).  Evidence on
the disputed fact issue must be affirmatively contested, and the contested fact issue must be material
to the lawfulness of the challenged conduct in obtaining the statement alleged to be involuntary.
Oursbourn, 259 S.W.3d at 177 (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim.
App. 2007)).  In the absence of a fact issue about how evidence was obtained, there is nothing for the
jury to decide under article 38.23(a).  Vasquez, 225 S.W.3d at 545.
	Perrucci argues that fact issues existed about the reasonableness of his detention, such
as whether he ran a red light at the intersection and whether he had his driver's license with him. 
We disagree.  Perrucci acknowledges that Moore had probable cause to stop Perrucci.  The color of
the traffic light when Perrucci was at the intersection, before he was stopped by Moore, is irrelevant
to the length of the investigative detention that followed.  With regard to Perrucci's possession of
a driver's license, Moore testified that Perrucci was arrested for failure to display a driver's license,
see Tex. Transp. Code Ann. § 521.025(a)(2), (c) (West Supp. 2010), that Perrucci never produced
his driver's license to Moore, and that Moore did not find it.  Perrucci testified that he had his
driver's license on him but also admitted that he did not know where it was and that he had not
produced it through the time of his arrest. (2)  Perrucci's failure to produce his driver's license, as noted
in the trial court's findings, complicated Moore's routine tasks of identifying the driver and
processing a computer check for warrants.  Even with this complication, the elapsed time from stop
to arrest was approximately eighteen minutes.  We conclude that the testimony in this record does
not raise a fact issue on unlawful detention and does not support Perrucci's requested instruction
under article 38.23(a).

	2.  Coercive practices instruction
	Perrucci also asserts that he was entitled to an article 38.23(a) instruction because of
a disputed fact issue about whether the length of the detention was coercive in "causing" him to
warn the officers about the drugs and needle in his car.  Entitlement to this instruction requires an
issue of disputed fact about whether an officer used inherently coercive practices to obtain a
defendant's confession against his will.  Oursbourn, 259 S.W.3d at 178.  Such coercive practices
render a confession involuntary "if the defendant's 'will has been overborne and his capacity
for self-determination critically impaired.'"  Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim.
App. 2010), cert. denied, 2010 U.S. LEXIS 8169 (2010) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225-26 (1973)).  Without evidence of police coercion or overreaching, any
involuntariness of the confession is not attributable to illegal police conduct.  Oursbourn,
259 S.W.3d at 181-82.  The court of criminal appeals, citing the Supreme Court in Colorado
v. Connelly, noted that statements have been found involuntary because of police overreaching when:
(1)  the suspect was subjected to a four-hour interrogation while incapacitated and
sedated in an intensive-care unit; 

(2)  the suspect, while on medication, was interrogated for over eighteen hours
without food, medication, or sleep; 

(3)  the police officers held a gun to the head of the wounded suspect to extract a
confession; 

(4)  the police interrogated the suspect intermittently for sixteen days using coercive
tactics while he was held incommunicado in a closed cell without windows and was
given limited food; 

(5)  the suspect was held for four days with inadequate food and medical attention
until he confessed; 

(6)  the suspect was subjected to five days of repeated questioning during which
police employed coercive tactics; 

(7)  the suspect was held incommunicado for three days with little food, and the
confession was obtained when officers informed him that their chief was preparing
to admit a lynch mob into the jail; and 

(8)  the suspect was questioned by relays of officers for thirty-six hours without an
opportunity for sleep.

Id. at 170-71 (citing Colorado v. Connelly, 479 U.S. 157, 164 n.1 (1986) (collecting cases)). 
	Perrucci does not dispute the validity of Moore's initial stop.  While conducting
the investigation related to that stop, Moore discovered that Perrucci could not produce a
driver's license, a new offense.  Moore began the process of identifying the driver, looking up
driver's license records, and checking for warrants.  He consulted with his supervisor about whether
to arrest Perrucci for failure to display his license.  As Perrucci was being placed in the patrol car,
he offered the information that a needle containing cocaine was on the passenger seat of his car
because he did not want to expose the officers to his hepatitis C.
	An article 38.23(a) instruction concerning the legality of a statement obtained from
a defendant is inapplicable without some evidence of the type of police coercion or overreaching
envisioned in Connelly.  Id. at 178.  Nothing remotely similar to those practices is presented in
this record to demonstrate that Moore obtained a statement from Perrucci by coercion or
overreaching--much less by actions overcoming Perrucci's will and critically impairing his capacity
for self-determination.  See Contreras, 312 S.W.3d at 574.  We conclude that this record does not
raise a fact issue on whether the alleged coercive length of Perrucci's detention "caused" him to warn
the officers about the drugs and needle in his car and does not support his second requested
instruction under article 38.23(a). 

	3.  Involuntary statement instruction
	Perrucci further contends that he was entitled to a general voluntariness instruction
under article 38.22, section 6 of the code of criminal procedure, because there was evidence at trial
from which a reasonable jury could conclude that his statement to Moore about the needle and the
cocaine was not voluntary.  Article 38.22, section 6 of the code of criminal procedure, in pertinent
part, provides that:

In all cases where a question is raised as to the voluntariness of a statement of an accused,
the court must make an independent finding in the absence of the jury as to whether the
statement was made under voluntary conditions. . . .  Upon the finding by the judge as a
matter of law and fact that the statement was voluntarily made, evidence pertaining to such
matter may be submitted to the jury and it shall be instructed that unless the jury believes
beyond a reasonable doubt that the statement was voluntarily made, the jury shall not
consider such statement for any purpose nor any evidence obtained as a result thereof. 


Tex. Code Crim. Proc. Ann. art. 38.22 § 6.  But as the State notes, the initial inquiry is whether
article 38.22 is applicable to the statement.  Section 5 of article 38.22 clarifies that article 38 does
not preclude admission "of a statement that does not stem from custodial interrogation, or of a
voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the
credibility of the accused as a witness, or of any other statement that may be admissible under law."
Id. art. 38.22 § 5.
	Perrucci testified at the suppression hearing that his statement about the needle
containing cocaine in his car was made voluntarily:

		Q.  [Defense counsel]:	Why did you tell the officer that there were drugs in the
front seat?

		A.  [Perrucci]: 		To be perfectly honest I have hepatitis and I didn't want him
to get poked or anything.

 . . . .

		Q.  [Prosecutor]:		Mr. Perrucci, when you told that to the officer you were
concerned about his safety going into the front seat of your
car?

A.  [Perrucci]:			Yes, sir.

Q.  [Prosecutor]:  		Did you just say that to the officer without him asking you?

A.  [Perrucci]:			I knew what the officer was after, whenever he came up to
my car initially and asked to search it, they know what
they're looking for, when we're--so, yeah, I volunteered
that.


	At trial, as at the suppression hearing, Perrucci testified that he told Moore about the
needle and the cocaine--without any coercion, threat, or question prompting a response--because
he did not want the officers to get stuck with a needle and exposed to his hepatitis C:

		Q.  [Prosecutor]:	All right.  He didn't ask you to search your  car immediately
before you told him there was a syringe on your seat, did he?

A.  [Perrucci]:		No, sir.

		Q.  [Prosecutor]:	All right.  So that statement you made was not in response to a
question Josh Moore asked you right before you made the
statement?

A.  [Perrucci]: 	No, sir.

		Q.  [Prosecutor]: 	Okay.  And you made that statement like you told your attorney
because you were concerned that the officers would get stuck
with the needle and you knew you had hepatitis?

A.  [Perrucci]:		Yes, sir.

		Q.  [Prosecutor]:	Okay.  And as you testified before on a prior occasion that
statement you made was voluntary?

A.  [Perrucci]:		Yes, sir.

Q.  [Prosecutor]:  	No one forced you to make that statement?

A.  [Perrucci]:		No, sir.

		Q.  [Prosecutor]:  	All right.  No one coerced you or threatened you to make that
statement?

A.  [Perrucci]:		No, sir.

		Q.  [Prosecutor]:  	You just made that statement as a voluntary statement so that the
officers didn't get stuck with a needle?

A.  [Perrucci]:		Yes, sir.


	No error results from refusing to include a jury instruction about the voluntariness of
a statement under article 38.22 when the evidence does not raise a "voluntariness" issue. Oursbourn,
259 S.W.3d at 174.  Because the statute requires some evidence presented to the jury that the
statement was not voluntary, Perrucci has not met his burden of demonstrating his entitlement to
an instruction under article 38.22, section 6.  The trial court did not err in refusing Perrucci's
requested instructions under article 38.23(a) and article 38.22, section 6.  Accordingly, Perrucci's
fourth issue is overruled.

CONCLUSION
	We overruled all of Perrucci's issues except for his first issue, which we sustained.
Accordingly, we modify the trial court's judgment by deleting the portion of the order that
currently states:

Furthermore, the following special findings or orders apply:

DEFENDANT TO PAY COURT COSTS AND ATTORNEYS FEES, IF ABLE,
UPON RELEASE FROM INCARCERATION.


As modified, we affirm the trial court's judgment.


 					Jeff Rose, Justice
Before Justices Puryear, Pemberton and Rose
Modified and, as Modified, Affirmed
Filed:   August 31, 2011
Do Not Publish
1.   Although questions and testimony at the suppression hearing referenced "needles," the
evidence admitted at trial consisted of a single syringe.  The officers in the patrol car video refer to
additional "clean needles" in the car door.
2. 	Approximately forty-one minutes into the video recording --and after Perrucci's arrest--an
officer is heard in the patrol car returning $100 and a driver's license to Perrucci that were found
during a pre-towing inventory of Perrucci's car.
