           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1262-09



                        SHELDON KEITH CRAIN, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SEVENTH COURT OF APPEALS
                         POTTER COUNTY

      K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY, J.,
joined.

                               DISSENTING OPINION

       The interaction under scrutiny in this case is properly classified as a consensual

encounter, requiring no reasonable suspicion or probable cause. Words carry various shades

of meaning when the tone and inflection of the speaker is considered. Examining only a cold

record, the majority wrongfully discounts the credibility findings made by the trial judge,

who witnessed testimony provided by Officer Dewayne Griffin firsthand.

       Officer Griffin testified that he observed Crain walking alone across a yard in a
                                                                        CRAIN DISSENT—2

residential neighborhood half past midnight. In his marked patrol car, Officer Griffin pulled

up and shined a spotlight on Crain to get at look at Crain and the surrounding area. Officer

Griffin then “told” or “asked” Crain to “come over here and talk to me.”           On cross-

examination, Officer Griffin stated that his statement may have sounded like an “order.”

Crain turned toward Officer Griffin, took a few more steps, and stopped. Officer Griffin got

out of his patrol car and approached Crain. Crain asked Officer Griffin what he was doing

wrong, and Officer Griffin said that he just wanted to talk to him. During this exchange,

Officer Griffin smelled a strong odor of marijuana emanating from Crain’s mouth and

clothing.

       The trial judge found Officer Griffin’s testimony to be credible and denied Crain’s

motion to suppress.

       As the majority observes, and then improperly disregards, appellate courts are required

to defer to a trial judge’s resolution of mixed fact and law issues when that determination is

based on an evaluation of credibility and demeanor.1 The credibility determinations made

by the trial judge about Officer Griffin’s testimony are entitled to almost total deference.2

Of upmost importance here is that the trial judge heard and witnessed Officer Griffin’s

characterization of the statement he made to Crain. We should therefore presume, as the trial




       1
            State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       2
            Id. at 856.
                                                                       CRAIN DISSENT—3

judge undoubtedly found and the record supports,3 that Officer Griffin’s statement was a

request,4 not an order or directive with a display of authority that would lead a reasonable

person to conclude that a seizure has occurred. Affording nearly total deference to the

factfinding, when the totality of the circumstances—including Officer Griffin’s use of the

spotlight and his request to Crain—are viewed objectively, Crain was free to ignore Officer

Griffin and continue walking.5

       Finally, the majority posits a hypothetical situation in which an officer draws a gun,

points it at an individual, and requests that the individual talk for a minute.6 This situation

is in no way analogous to the facts here and is therefore irrelevant. The totality of the

circumstances of this case and the trial judge’s credibility determination are dispositive


       3
         Id. at 855 (“we view the evidence in the light most favorable to the trial court’s
ruling and assume that the trial court made implicit findings of fact that support its ruling
as long as those findings are supported by the record.”).
       4
           Id. at 856.
       5
          See United States v. Mendenhall, 446 U.S. 544, 555 (1980) (holding that the
respondent was not seized within meaning of Fourth Amendment when law enforcement
agents “approached her in a public place, asked if she would show them her ticket and
identification, and posed to her a few questions.”); see also Florida v. Royer, 460 U.S.
491, 497 (1983) (plurality op.) (“law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another public place,
by asking him if he is willing to answer some questions, by putting questions to him if the
person is willing to listen . . . .”); Florida v. Bostick, 501 U.S. 429, 436-37 (1991) “the
crucial test is whether, taking into account all of the circumstances surrounding the
encounter, the police conduct would ‘have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about his business.’”) (quoting
Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).
       6
           Ante, at 14 n.39.
                                                                       CRAIN DISSENT—4

though: An officer’s request to talk an individual coupled with the use of a spotlight to

identify the individual and surrounding area at night by the officer does not rise to the level

of a detention within the meaning of the Fourth Amendment.

       I would affirm the court of appeals’s judgment.




DATE FILED: June 30, 2010
PUBLISH
