dissenting.
The court of appeals probably did an incorrect sufficiency analysis. The court should have used Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) and considered the sufficiency of the evidence measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Id. at 240. However, the State’s petition for discretionary review asks only:
(1)Must a defendant who is stopped for speeding be prosecuted only for speeding where her actions during detention constitute both refusal of citation and interfering with a peace officer under section 38.15 of the Texas Penal Code?
(2) Is speech which causes another person to act included within the “speech only” exception to section 38.15?
(3) May a defendant be prosecuted under section 38.15 for actions that occur during detention, as well as for actions that occur when she is first detained or when she is later arrested?
The State doesn’t say that the court of appeals did an incorrect sufficiency analysis.
Even though the court of appeals did not use the correct analysis in this published opinion and the State brought the wrong grounds for review, since this is an extremely fact-bound case involving a state statute, the improper analysis does not affect our jurisprudence and we should dismiss this case as improvidently granted. Therefore, I respectfully dissent.