
NO. 07-08-0224-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 31, 2009

______________________________


SHELDON KEITH CRAIN,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 54073-A; HON. HAL MINER, PRESIDING

_______________________________

DISSENT
_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          I respectfully dissent from the majority’s opinion.
          Per the record, Officer Griffin testified that appellant 
was walking in the roadway and originally caught my eye.  And when I
observed him walking and after seeing me, he - - he looked back and what
I could remember was grabbing at his waist.
He further acknowledged that appellant was doing nothing that could be construed as
criminal at the time.  When the officer eventually returned to the location, appellant was
found near or in the front yard of a house.  And, though he admittedly saw nothing that he
could categorize as criminal activity, the officer stopped his patrol car, “spotlighted”
appellant, and told him to “come over here and talk to me.”  In response, appellant
purportedly looked back and stopped after taking several more steps.  And, as that
occurred, the officer exited his patrol car and approached appellant.  
          Missing from the phrase “come over here and talk to me” are words of contingency
or option.  That is, they are not a mere solicitation of cooperation.  Nor do they extend any
choice, explicit or implicit.  Rather, they are mandatory:  “come over here and talk to me.” 
I would dare say that any parent who uttered those words only to have his or her child walk
away would not reasonably construe the child’s response as acceptable.  And, we do not
have a mere parent here but rather a police officer in his marked car shining his spotlight
on his quarry in the middle of the night.  Together, those indicia fall short of suggesting that
a reasonable person under the same circumstances would find it permissible to ignore the
officer and leave.  
          Moreover, I see no difference between an officer shining his spotlight upon
someone and directing him to “come over here” and an officer engaging his emergency
lights when attempting to stop a vehicle.  Both serve to announce the officer’s presence
and carry with them an implicit command.  And, for that reason our opinion in Hudson v.
State, 247 S.W.3d 780 (Tex. App.–Amarillo 2008, no pet.), is especially informative. 
There, we held that “when a person stops in response to a patrol car's emergency lights
rather than of his own accord, an investigatory detention has occurred,” which stop
required the presence of “reasonable suspicion.”  Id. at 784.    
          Thus, the uncontested evidence of record depicting the stop evinced no mere
encounter but rather a detention.  And, because walking down a residential street at night,
though the area may be one wherein burglaries may have occurred at one time or another
in the past, fails to give rise to a reasonable belief that crime is afoot, Davis v. State, 61
S.W.3d 94, 98 (Tex. App.–Amarillo 2001, no pet.), even if the individual tugs on his
waistband.  I would hold, as a matter of law, not only that the detention was illegal but also
that the motion to suppress should have been granted.
 
                                                                           Brian Quinn
                                                                          Chief Justice

Publish.

           

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NO. 07-10-0005-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL C
 
APRIL 28, 2010
 
______________________________
 
 
ALLAN W. SHEPHERD, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
 
_________________________________
 
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
 
NO. 2009-424,407; HONORABLE JIM BOB DARNELL, JUDGE
 
_______________________________
 
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
            Following
an open plea of guilty to aggravated assault on a family member with a deadly
weapon, Appellant, Allan Shepherd, was convicted and a
jury sentenced him to ten years confinement. 
Appellant timely filed a notice of appeal challenging his conviction.
            Pending
before this Court is Appellant's Motion to Dismiss Appeal in which he requests
that his notice of appeal be withdrawn and the appeal be dismissed.  As required by Rule 42.2(a) of the Texas
Rules of Appellate Procedure, the motion is signed by Appellant and his
attorney.  No decision of this Court
having been delivered, the motion is granted and the appeal is dismissed.  No motion for rehearing will be entertained
and our mandate will issue forthwith.
Accordingly, the appeal is
dismissed.
                                                                                    Patrick A. Pirtle
                                                                                          Justice
 
 
Do not publish.

