# Ebarb v. State

> Court of Criminal Appeals of Texas · May 28, 1980 · 598 S.W.2d 842

URL: https://www.frixlaw.com/law-library/cases/9773124

## Case

- **Full name:** Winnie R. EBARB, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 28, 1980
- **Citations:** 598 S.W.2d 842; 1980 Tex. Crim. App. LEXIS 1223
- **Precedential status:** Published
- **Opinion:** Dissent by Dally
- **Judges:** Clinton, Dally, Douglas, Roberts, Odom, Davis
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773124

## How later opinions describe it (automated extraction)

- holding that a detention occurs when a citizen in a parked car complies with a police officer’s request to roll down the window, open the door, or get out of the car
- holding that “when a person is sitting in a parked car and a police officer orders him to roll down the window or to open the door,” detention has occurred
- holding that no further objection at trial is necessary to preserve a complaint of a denial to a motion to suppress
- holding an investigative detention occurs when a police officer orders a person who is sitting in a parked car to roll down his window or to open his door
- holding that a gun seen in plain view should have been suppressed because of the unlawful detention

## Opinion text

DALLY, Judge,
dissenting.
I quote the facts as stated in the panel opinion of the majority:
“Sheriff Maddox of Austin County was at the annual Sealy Firemen’s Frolic when someone told him that Winnie Ebarb was carrying in her car some illegal pills and a handgun. He and several of his deputies, Sealy policemen, and the local District Attorney, who were also attending the Frolic, departed in two cars in search of Mrs. Ebarb. After driving around Sealy for awhile the car was spotted by the Sheriff and followed until it pulled into a driveway and stopped. The driveway was that of Mrs. Ebarb’s son where she was staying. The car con *854 tained Mrs. Ebarb, her son and daughter-in-law. The Sheriff and his companions in the search stopped their cars and went to Mrs. Ebarb’s car. The Sheriff approached the passenger side where Mrs. Ebarb was sitting, identified himself and asked if he could search the car. She replied ‘Well, certainly’ and exited the car. As she was doing so the dome light came on and revealed a pistol on the front seat of the car. The car was searched and no drugs were found. The pistol was used in the instant prosecution.”
None of the officers stopped nor detained the appellant — “. . . the car was spotted by the Sheriff and followed until it pulled into the driveway and stopped.” The record simply does not support a finding that the Sheriff or any of the officers stopped or detained the appellant or her son. The car was stopped voluntarily by the appellant’s son near his apartment. The Sheriff and the other officers, as would any other citizen, had a right to be where they were; what law were they violating in being where they were? When the car door was opened either by the appellant or her son and the dome light came on the Sheriff and another officer saw the pistol in open view on the seat. The pistol was observed and recovered without a search. After observing the pistol in open view the officers had a perfect right to arrest the appellant and other occupants of the car.
The officers did not stop the automobile in which the appellant was a passenger. They used good judgment and waited until the automobile was stopped voluntarily; then the Sheriff asked a question as any citizen could have asked a question. If the appellant and her son had remained seated in the automobile and if the appellant had refused the Sheriff’s request to search the automobile, which they had a perfect right to do, many different questions may have been raised depending on the action then taken by the officers. However, this appeal should be decided on the facts in the record and not questions that might have been raised in different circumstances.
I cannot agree that the majority are properly applying the well-known law stated to the facts of this case; therefore, I must dissent.
TOM G. DAVIS, and W. C. DAVIS, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773124. Public record. Not legal advice.