                                  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



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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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