Jacqueline v. Harper v. State ( 2007 )

NO. 07-06-0129-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 9, 2007
______________________________
JACQUELINE V. HARPER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-409263; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
CONCURRING OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
I concur in the judgment of the Court. I agree with the majority’s analysis as to
whether or not Officer Hayes had a reasonable basis to suspect that Appellant was or
would soon be engaged in criminal activity. However, I respectfully disagree with the
majority’s conclusion that the Officer’s interaction with Appellant amounted to no more than
an encounter. I am of the opinion that facts and circumstances of this case amounted to
an investigative detention.
An investigative detention occurs when a reasonable person would believe he or
she was not free to leave and has yielded to a show of authority or has been physically
forced to yield. California v. Hodari, D., 499 U.S. 621, 627-28, 111 S. Ct. 1547, 1551-52,
113 L. Ed. 2d 690 (1991). Therefore, an investigative detention may occur when a person
in a parked car complies with a police officer’s order to roll down the window or open the
door. Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App. 1980); Ebarb v. State, 598
S.W.2d 842, 850 (Tex.Crim.App. 1979); State v. Bryant, 161 S.W.3d 758 (Tex.App.–Fort
Worth 2005, no pet.). Under the facts of this case, I am of the opinion that a reasonable
person in Appellant’s position would not have felt free to drive away from Officer Hayes at
any time during the incident. Therefore, I believe that the Officer’s request that Appellant
step out of her vehicle constituted an investigative detention.
Patrick A. Pirtle
Justice
Publish.
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