dissenting.
This Court granted the petition for discretionary review that was filed on behalf of Floyd Ray Gearing, appellant, in order to review the published opinion of the court of appeals, in which that court held that the detention of appellant by a police officer, that led to the recovery of the pistol for which appellant was prosecuted, was lawful.
On original submission, a majority of this Court reversed the judgment of the court of appeals. It held that the police officer who arrested appellant acted unlawfully. Relying upon the facts of the case, as stated in the opinion by the court of appeals, I dissented without opinion.
A majority of this Court on rehearing now informs us that the opinion of the court of appeals is factually incorrect.
It is now axiomatic that an appellate court judge should never misstate the facts of a case in an opinion he authors for his particular court. Just recently, in Laday v. State, 685 S.W.2d 651 (Tex.Cr.App.1985), this Court implicitly pointed out that if a case is assigned to a particular appellate court judge, he, and no other person, including any member of his staff, has the responsibility to read the entire record on appeal, from the first to the last page, in order that the opinion he authors for his court will be factually correct. Otherwise, if an opinion erroneously states the facts of a case, this might not only cause the author of the opinion to be embarrassed, such can also cause his fellow judges to be embarrassed. Of course, it can cause other appellate court judges who rely on the opinion to also be embarrassed. I confess. I am embarrassed, because had the opinion of the court of appeals correctly stated the facts of the *332case, I would not have voted to dissent to the majority opinion on original submission.
Judge Odom, the author of the majority opinion on original submission, in ordering appellant’s conviction reversed, adopted the following factual statement that is in the opinion of the Houston [14th] Court of Appeals. See Gearing v. State, 685 S.W.2d 326 (Tex.App.—Houston [14th] 1983): “Appellant was ‘slouched over’ the steering wheel ...”
However, but as Presiding Judge Onion, the author of the majority opinion on rehearing, now informs us, when confronted by the arresting police officer, appellant was not “ ‘slouched’ over the steering wheel” of the motor vehicle in which he was sitting.
It is my legal belief that there is a world of difference as to what a police officer in the field might do when he sees an individual "slouched over a steering wheel” versus if he sees an individual “slouched down in the driver’s seat [of the motor vehicle in which he is sitting] wearing a cowboy hat.”
I believe that when an officer in the field sees a civilian “ ‘slouched’ over the wheel of an automobile,” at an early morning hour, with the windows of the vehicle rolled up, the lights of the vehicle off, and the motor of the vehicle running, he should investigate to make the determination whether the individual might be suffering from anything ranging from a heart attack to being passed out because he had consumed too much intoxicating liquor or other substances, or is attempting to commit suicide. In that instance, this Court’s decision of Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976), and like decisions, control whether the investigating officer has the right to investigate. Under the above circumstances, I believe he does have the right to make a thorough investigation of the situation.
In this instance, however, other than to ascertain who appellant was and why he was where he was situated, the arresting officer had no other lawful authority to act. There is no evidence in the record on appeal that appellant was either “ ‘slouched over the steering wheel’ ” of the vehicle in which he was sitting or that his “head was bobbing and weaving” when he was sitting in his vehicle.
On original submission, a majority of this Court correctly stated the following: “The facts of this case do not indicate that any activity out of the ordinary was occurring or had occurred, nor that appellant was connected to any such activity, nor any such activity was related to a crime. Indeed, the circumstances observed by the officer were as consistent with innocent activity as with criminal activity, and in fact there was no suggestion of criminal activity afoot whatsoever.” In light of the correct version of the facts, I agree with what a majority of this Court stated on original submission. Under the facts and circumstances of this case, once the arresting officer had obtained identification and reasonable explanation from appellant, as to who he was and why he was where he was situated, without more, the officer did not have the right to order appellant from his vehicle, much less handcuff him. See Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984). Appellant’s conviction should be reversed, if the error was perfected.
But, did appellant waive his error? The record on appeal reflects that when the pistol that was seized by the arresting officer was offered into evidence by the prosecuting attorney, appellant’s counsel stated that he had “no objection” to its admission into evidence. It was after this statement and event that the trial court overruled the appellant’s motion to suppress the evidence. Because of the sequence of events, I do not believe that appellant preserved his ground of error for review. Thus, whatever the majority of this Court states in its opinion on rehearing, regarding appellant’s unlawful detention, as well as the search and seizure that thereafter occurred, is pure dictum.
Notwithstanding that I find that the majority is correct in holding that appellant failed to preserve his error, I must dissent to its holding that appellant’s detention and *333the ensuing search and seizure were lawful. Such is pure dictum.