STATE v. GARCIA

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

In this case, we examine the distinction between a citizen-police "encounter" and a citizen-police "detention." A "detention" implicates the Fourth Amendment's search and seizure restrictions and requires articulable suspicion to support even a temporary seizure, while an "encounter" is not subject to any Fourth Amendment requirements or restrictions. We conclude that, under the totality of the circumstances test set out in Florida v. Bostick, the trial judge did not err in finding that the officer's conduct in this case resulted in a Fourth Amendment detention. We therefore reverse the judgment of the court of appeals, which had held that the trial court improperly granted appellee's motion to suppress.

We granted appellee's three grounds for review:

(1) Whether the court of appeals eviscerated decades of well established U.S. and Texas Constitutional, statutory, and case law when it ruled that police officers were not required to have, much less articulate, a "reasonable suspicion" in order to initiate an investigation of an occupied, legally parked, non moving automobile, located in a narrow cul-de-sac.

(2) Whether the court of appeals . . . violated its own stated standard of review articulated in Ross, 32 S.W.3d at 856 (citing Romero v. State, 800 S.W.2d at 543) to uphold the trial court's decision if it is correct on any theory of law applicable to the case.

(3) Whether the actions of the police herein constituted a detention requiring reasonable suspicion.

501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991).

State v. Garcia-Cantu, 225 S.W.3d 820 (Tex.App.-Beaumont 2007).

I.

Appellee was charged with the misdemeanor offenses of possession of marijuana and carrying a weapon. At the hearing on the motion to suppress, the State and appellee agreed that the only issue to be litigated was whether the facts supported the finding of a Fourth Amendment detention or a consensual citizen-police encounter.

See State's Brief at 5 ("As the only issue addressed in the motion to suppress was whether Off. Okland had lawfully approached the truck, there was no testimony regarding either what evidence was discovered after Off. Okland approached Appellee or how it was discovered.") (citation omitted); id. at 8 n. 3 ("The State agrees with Appellee that the evidence within the record tending to support reasonable suspicion was highly contested, and, as such, the trial court would not have abused its discretion in granting Appellee's motion to suppress if Appellee was, in fact, detained.").

Officer Okland testified that he had been with the Conroe Police Department for eighteen months. He was on routine patrol in the 300 block of South Pacific at about 4:00 a.m. on December 26th, when he saw a green Ford truck parked at the end of the block. Officer Okland stated that the 300 block of South Pacific is a dead-end street, with two houses on the right, railroad tracks on the left, and high grass and woods at the end of the street. Officer Okland testified that this was a "highcrime" area for drugs and prostitution, but when he was shown a written police call sheet, he did not dispute that there had been only two drug arrests in the prior six months and no prostitution arrests in that area. The officer saw that the truck's dome light was on and two people were inside the truck. He decided to investigate.

In his offense report, Officer Okland wrote that the Ford was parked illegally on the left-hand side of the street. During the hearing, Office Okland agreed that this was incorrect; he testified that the truck was parked illegally in the middle of the street. But Officer Okland's dashboard-mounted video recorder shows that the truck was parked on the right-hand side of the street. Officer McCreary, the back-up officer who arrived at the scene within five minutes, testified at first that the truck was parked "legally" on the right hand side of the road, but then he said that it was parked more than eighteen inches from the side of the road, so it was illegally parked.

Photographs and the video recording confirm this physical description of the area.

He defined a "high crime" area as one involving ten to fifteen arrests a month.

It was at this point that the trial judge began questioning the witness in an increasingly skeptical manner. He stated:

I want to find out what the police have in numbers of incidents on this 300 block of South Pacific, within the past year, prior to this. . . . if he's going to say that he's here because this is a high crime area, then I want to see the facts that support a high crime area. The facts that would support a high crime area would be the incident reports for at least a year prior to this incident date, and it would show whether we have a high crime area here or not . . . I don't have any evidence that convinces me this is a high crime area. I'm trying to give the State an opportunity to come in and let's prove up what is being said.

The prosecutor, however, declined that invitation: "Your Honor, the State is not going to take advantage of that. We appreciate that." Officer McCreary also testified that, had he been the first officer to drive by, he, too, would have investigated "[b]ecause that vehicle has never been there. It doesn't belong there." The trial judge then began questioning Officer McCreary: "[I]s there any rule in Conroe that says a person can't park there between say midnight and 6:00 a.m.? Is there a rule about that?" "Not that I'm aware of," responded Officer McCreary. When the trial judge asked him what he saw about the truck or scene when he arrived that caused him to think that appellee's truck was a "suspicious vehicle," Officer McCreary said, "At the time that I arrived there, there was nothing suspicious."

Officer Okland turned on his patrol car spotlight "to make sure that they weren't doing harm to me." He was "letting them know it was a police officer behind them." But then he said, "If I had wanted them to know it was a police officer I would have turned my overhead lights on, to indicate I was detaining them. But I just wanted to see what they were doing in there." He was still driving up behind the truck at the time he put on his spotlight. Officer Okland parked his patrol car about ten feet behind the truck and to its left, and he turned on his dashboard-mounted camera to record the investigation. He then saw movement on the driver's side area of the truck. He got out of his patrol car and began advancing toward the truck, holding a long flashlight in both hands at shoulder level as he walked forward. When Officer Okland played his flashlight across the driver's side of the truck, appellee got out of that side and met the officer in the middle of the road.

In his offense report, Officer Okland mentioned only that the front seat passenger appeared to be making movements toward the back of the truck.

The trial judge questioned Officer Okland further: "[A]nd you got your spotlight on and you want me to believe that with a spotlight on, they could drive away?" Officer Okland said, "Yes," although he agreed that he had "[n]ever had anybody who has had his spotlight turned on them drive away." The trial judge continued to question the officer about the location of his patrol car which appeared to block appellee's truck at the end of the street:

Court: They were stopped. You just came up upon them.

Officer: They would have to back up and I would have to move for them to —

Court: Then you had them blocked in where they couldn't move?

Officer: They could have backed up.

Court: They could have backed up? Officer: I would have moved. I wouldn't have let them hit me.

Court: Oh, could they have backed up and gotten out of the parked area they were in with you not having to move your vehicle?

Officer: No sir.

Court: So you were so close to them that they couldn't do anything but stay there, is that right?

Officer: Well, I was a good ten — or about a car length away from their vehicle when I stopped.

Officer Okland then suggested that appellee could have backed up and driven on the wrong side of the roadway and around his patrol car, but the video indicates that the officer's car was parked well to the left side of the road. The trial judge asked a final question:

A photograph of the narrow, dead-end street shows that it was unlikely that two cars could fit side-by-side on the road.

Court: And what we have here is, you're telling me that if this person would have simply backed up, even though your overhead or your spotlight was on, or whatever was on, and you're pulled up within ten feet of this other vehicle, they were free to leave? That's what you want me to believe?

Officer: Yes, sir.

Mr. Garcia-Cantu, appellee, also testified. He said that he saw Officer Okland pulling up behind him, but he couldn't see anything more except a big spotlight, "a big white light." The officer didn't tell him that he could leave, and he didn't believe that he was free to leave. Mr. Garcia-Cantu said that he lives about two blocks away, on the other side of the railroad tracks, and this is his neighborhood. He has friends who live on that block, and he was just waiting for his friend who was inside the house.

Officer Okland agreed that appellee's friend came out of the house as soon as the officer got out of his patrol car. The video recording confirms this.

After hearing all of the testimony, the trial judge granted Mr. Garcia-Cantu's motion to suppress without making explicit factual findings, and the State appealed that ruling.

The court of appeals stated that "the record reveals the trial court required that Okland articulate a reasonable suspicion of criminal activity to justify his approach to Garcia-Cantu's truck and that Okland's use of the spotlight was sufficient to amount to a detention." The court of appeals noted that this Court has previously held that a police officer's use of a spotlight was insufficient to amount to a Fourth Amendment detention. The Court of Appeals concluded,

225 S.W.3d at 822.

Id. at 823 (citing Stewart v. State, 603 S.W.2d 861, 862 (Tex.Crim.App. 1980) (police officer had spotlighted parked van in residential area at night and then approached it; court noted that the "mere approach of the police officer to the van interfered with no one's freedom of movement and caused minimal inconvenience and loss of time. There was no unconstitutional search or seizure.")).

We also find the trial court abused its discretion in determining under these circumstances that spotlighting Garcia-Cantu's truck resulted in Garcia-Cantu's detention.

We granted appellee's petition to determine, inter alia, whether Officer Okland's actions constituted a detention requiring reasonable suspicion under Bostick's "totality of the circumstances" test.

II.

A. Standard of Review

In reviewing a trial court's ruling on a motion to suppress, appellate courts must view all of the evidence in the light most favorable to the trial court's ruling. When the trial court does not make explicit findings of fact, the appellate court infers the necessary factual findings that support the trial court's ruling if the record evidence (viewed in the light most favorable to the ruling) supports these implied fact findings. Thus, we afford almost total deference to a trial judge's determination of the historical facts that the record supports, especially when his implicit factfinding is based on an evaluation of credibility and demeanor. This same highly deferential standard applies regardless of whether the trial court has granted or denied a motion to suppress evidence. Thus, the party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. But the question of whether a given set of historical facts amount to a consensual police-citizen encounter or a detention under the Fourth Amendment is subject to de novo review because that is an issue of law-the application of legal principles to a specific set of facts.

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).

Kelly, 204 S.W.3d at 819.

Ross, 32 S.W.3d at 856.

Id. (applying "almost total deference" to trial court's implied factual findings and assessment of credibility and demeanor when it granted motion to suppress).

United States v. Tyler, 512 F.3d 405, 409-12 (7th Cir. 2008) (given the totality of the circumstances established, question of whether officers "detained" defendant as a seizure under the Fourth Amendment reviewed de novo as a question of law); United States v. Vera, 457 F.3d 831, 834 (8th Cir. 2006) ("We review de novo whether there was a seizure, and we review the district court's factual determinations for clear error."); United States v. Smith, 423 F.3d 25, 31 n. 4 (1st Cir. 2005) ("The conclusion, reached after review of all the facts of the encounter, that a seizure triggering the protections of the Fourth Amendment has occurred is a constitutional interpretation" and subject to de novo review); see generally, Omelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ("we hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo "); Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App. 2004) ("questions involving legal principles and the application of law to established facts are properly reviewed de novo in deciding the question of the "reasonableness" of a detention for purposes of the Fourth Amendment).

B. Citizen-Police Encounters and Fourth Amendment Detentions

As the Supreme Court has aptly noted, "encounters between citizens and police officers are incredibly rich in diversity." They run the gamut from "wholly friendly exchanges of pleasantries" to "hostile confrontations of armed men, involving arrests, injuries, or loss of life." Given this wide diversity of police-citizen interaction, not every encounter between the two is subject to Fourth Amendment scrutiny. It is only when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen," will courts conclude that a Fourth Amendment "seizure" has occurred. Such a seizure occurs when, "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.'"

Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Id.

Id. at 19 n. 16, 88 S.Ct. 1868.

Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

In Florida v. Bostick, the Supreme Court reiterated that an encounter between a police officer and a citizen "will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." In Bostick, the United States Supreme Court granted certiorari to determine whether the Florida Supreme Court's per se rule that police officers who boarded buses at scheduled stops and questioned passengers without articulable reasons for doing so necessarily "seized" those passengers within the meaning of the Fourth Amendment. The Supreme Court rejected the lower court's per se rule because it "rested its decision on a single fact — that the encounter took place on a bus — rather than on the totality of the circumstances." Thus, Bostick mandates that

501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991).

Id. at 434, 111 S.Ct. 2382.

Id. at 433, 111 S.Ct. 2382 ("We granted certiorari . . . to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence. . . . The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a `seizure' within the meaning of the Fourth Amendment.").

Id. at 437, 111 S.Ct. 2382.

a court must consider all of the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

While the "cramped confines" of a bus was certainly one relevant factor for the Florida courts to consider in evaluating whether a particular interaction between an officer and a citizen was a consensual encounter or a Fourth Amendment detention, that single factor will not "be dispositive in every case." The test is both objective and fact specific; "the `reasonable person' test presupposes an innocent person."

Id. at 438-39, 111 S.Ct. 2382 (noting that "`[c]onsent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage.")

Id. at 439, 111 S.Ct. 2382.

Id. at 438, 111 S.Ct. 2382.

Police officers are as free as any other citizen to knock on someone's door and ask to talk with them, to approach citizens on the street or in their cars and to ask for information or their cooperation. Police officers may be as aggressive as the pushy Fuller-brush man at the front door, the insistent panhandler on the street, or the grimacing street-corner car-window squeegee man. All of these social interactions may involve embarrassment and inconvenience, but they do not involve official coercion. It is only when the police officer "engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen," does such an encounter become a seizure. It is the display of official authority and the implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure. At bottom, the issue is whether the surroundings and the words or actions of the officer and his associates communicate the message of "We Who Must Be Obeyed."

4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.4(a), at 427 (4th ed. 2004).

As Professor LaFave has noted, this approach is useful when examining police contacts with citizens seated in parked cars.

The mere approach and questioning of such persons does not constitute a seizure. The result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation. The officer may tap on the window and perhaps even open the door if the occupant is asleep. A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so. Likewise, the encounter becomes a seizure if the officer orders the suspect to "freeze" or to get out of the car. So too, other police action which one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure.

Id. at 433.

Each citizen-police encounter must be factually evaluated on its own terms; there are no per se rules. "The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to `leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." The officer's conduct is the primary focus, but time, place, and attendant circumstances matter as well. "A court must step into the shoes of the defendant and determine from a common, objective perspective whether the defendant would have felt free to leave."

Bostick, 501 U.S. at 440, 111 S.Ct. 2382 ("The Florida Supreme Court erred in adopting a per se rule."); see also People v. Paynter, 955 P.2d 68, 73 (Colo. 1998) ("rather than rely upon a single factor and announce a per se rule, a court must consider the totality of the circumstances to determine whether the police exercised force or authority to effect a stop, or whether the police merely sought the voluntary cooperation of a citizen through a consensual encounter.").
In Paynter, the Colorado Supreme Court mentioned numerous factors which might contribute to a finding, based on the totality of the circumstances, that a particular police encounter with a person in a parked car would constitute a Fourth Amendment seizure. These included: (1) whether there was a display of authority or control over the defendant by activating the siren or any patrol car overhead lights; (2) the number of officers present; (3) whether the officer approached in a non-threatening manner; (4) whether he displayed a weapon; (5) whether he requested or demanded information; (6) whether the officer's tone of voice was conversational or whether it indicated that compliance with the request for information might be compelled; (7) whether the officer physically touched the person; (8) whether an officer's show of authority or exercise of control over a person impeded that person's ability to terminate the encounter; (9) the duration of the encounter; and (10) whether the officer retained the citizen's identification or travel documents. Paynter, 955 P.2d at 73-75.

Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

United States v. Steele, 782 F.Supp. 1301, 1309 (S.D.Ind. 1992).

III.

With that general background, we turn to the present case. Here, the court of appeals relied upon one single fact and found it dispositive. It concluded that Officer Okland's use of his spotlight did not effect a Fourth Amendment seizure. It quoted from an Idaho Supreme Court decision: "A rule that an officer's use of a spotlight creates a per se detention would discourage office[r]s from using such lights when necessary for their safety or the safety of others." Indeed, that is correct: Bostick stands for the proposition that per se rules generally do not determine whether any specific citizen-police encounter amounted to a Fourth Amendment detention. Instead, trial and appellate courts must view "the totality of the circumstances" of the encounter in the light most favorable to the trial judge's implicit (or explicit) factual findings. The question of when an encounter between police officers and a person in a car constitutes a "seizure" depends on specific facts as to the manner of the encounter, the degree of authority displayed, and all other circumstances surrounding the incident. Just as with the determination of probable cause, a piecemeal or "divide and conquer" approach is prohibited.

Garcia-Cantu, 225 S.W.3d at 823 ("We also find the trial court abused its discretion in determining under these circumstances that spotlighting Garcia-Cantu's truck resulted in Garcia-Cantu's detention.").

Id. (quoting State v. Baker, 141 Idaho 163, 107 P.3d 1214, 1218(2004)).

Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App. 2007) ("When determining probable cause, an appellate court considers the totality of the circumstances. This means that a `divide-and-conquer' or piecemeal approach is prohibited.") (footnote omitted).

In this case, the totality of the circumstances, viewed in the light most favorable to the trial judge's ruling, show:

1. Officer Okland decided to "investigate" the presence of appellee's truck parked at the dead-end portion of the 300 block of South Pacific. The video recording supports the trial judge's implicit finding that Officer Okland used an authoritative, commanding voice and demeanor that brooked no disagreement into his official investigation. Although reasonable fact finders could disagree, we must give great deference to the trial judge's assessment of the facts.

2. It was 4:00 a.m. on December 26th, Christmas night.

3. Officer Okland turned on his patrol-car spotlight to light up appellee's truck even before he stopped his car, and he activated his dashboard camera to record the encounter.

4. He parked his patrol car about ten feet behind and to the left of appellee's truck. The testimony, photographs, and video recording all support the trial judge's implicit factual finding that Officer Okland "boxed in" appellee's parked truck, preventing him from voluntarily leaving.

5. Officer Okland got out of his patrol car, holding his large flashlight in

both hands at shoulder-level, and started to approach the driver's side of appellee's truck in a manner that could fairly be described as authoritative.

6. Appellee then got out of his truck and started to walk toward Officer Okland, who immediately asked, "What are you doing here?"

Although these words are not, by themselves, sufficient to convert an otherwise consensual encounter into a detention, much depends upon the tone and level of voice, as well as the questioner's demeanor. The trial judge could have concluded that, based upon Officer Okland's tone and demeanor on the witness stand, as well as his tone and demeanor as seen and heard on the video recording, that the officer's questioning was more in the nature of an official command rather than a friendly or neutral inquiry.

7. Officer Okland then played his flash-light across the female passenger's side of the truck to track the passenger's exit from the truck. She came around to where the officer and appellee were standing at the rear of the truck.

8. Officer Okland then played his flash-light into and across appellee's eyes as if he were looking for signs of intoxication. He did the same to appellee's friend who came out of the house.

9. Officer Okland then asked appellee, "You got any I.D. on you?" Apparently appellee said that it was in the truck because Officer Okland immediately went back to the driver's side and looked inside the truck. He then came back to the rear of the truck and told appellee to go get his I.D. out of the truck. Appellee did so.

10. Appellee testified that he did not subjectively feel free to leave or terminate the encounter.

That fact is not particularly relevant because the test is whether a reasonable person in the citizen's position would have felt free to leave. However, given the facts that Officer Okland initiated the incident by blocking appellee's exit with his patrol car, turning on his spotlight, approaching appellee's truck with a long flashlight playing over the driver's side, immediately saying, "What are you doing here?", using his flashlight to wave the passenger back to the rear of the truck, and, standing toe-to-toe with appellee, shining his flashlight into appellee's eyes, it is hard to conclude that any reasonable person would feel free to drive or walk away or to terminate the questioning.

Viewing the totality of these particular circumstances in the light most favorable to the trial court's ruling, we hold that the trial court did not err in concluding that a reasonable person in appellee's position would not have felt free to leave or terminate this encounter with Officer Okland.

The State argues that the evidence was "undisputed" in many respects in which the trial court obviously did find it disputed. For example, the State argues: "It is also undisputed that the location of Off. Okland's patrol car approximately one car length behind Appellee's truck did not prevent Appellee's egress." "[T]he incontrovertible evidence shows that Appellee was free to leave in his vehicle if he so chose. . . . Off. Okland testified only that Appellee could not back straight out of his parking place without hitting the patrol car." The trial judge, however, was not required to believe this particular testimony, and his skeptical questioning of Officer Okland supports the inference that he did not. The State also argues that "the record unequivocally shows that Appellee had two other available means of driving away from the scene." He could have turned around in a driveway that is partway down the street or he could have made a U-turn over the railroad right-of-way. Had the trial court ruled against appellee, we would have to defer to the trial judge's implicit factual finding that these methods of egress were possibilities (although the photographs and videotape do not necessarily support them), but the trial court implicitly found that appellee was blocked in by Officer Okland and the patrol car, and that appellee could not move his car.

State's Brief at 6.

Id. at 11-12.

Id. at 12.

Id.

In sum, the State does not quarrel with the law or its application; it simply has a different view of the evidence and of the inferences to be drawn from that evidence. Had the trial court agreed with the State's view of the evidence and ruled against appellee because "the incontrovertible evidence show[ed] that Appellee was free to leave in his vehicle if he so chose," we could uphold such a fact finding based upon the totality of the circumstances and the credibility of the witnesses.

See Bostick, 501 U.S. at 439, 111 S.Ct. 2382; Brower, 489 U.S. at 596-97, 109 S.Ct. 1378; Chestemut, 486 U.S. at 573-74, 108 S.Ct. 1975; Steele, 782 F.Supp. at 1309; Mulholland, 794 A.2d at 401-02; see also supra note 44.

The court of appeals erred in focusing upon one single fact-Officer Okland's use of a spotlight-instead of the totality of the circumstances. We conclude that, viewed in the light most favorable to the trial judge's ruling, the totality of the circumstances support his conclusion that appellee was detained by Officer Okland for purposes of the Fourth Amendment. We therefore reverse the judgment of the court of appeals, uphold the trial court's suppression ruling, and remand the case for further proceedings in the trial court.

KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.