Joseph Timothy Shimko v. State
Opinion
ACCEPTED
03-13-00403-CR
5537647
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/3/2015 8:30:53 PM
JEFFREY D. KYLE
CLERK
03-13-00403-CR
JOSEPH TIMOTHY SHIMKO § IN THE THIRD FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
v. § COURT OF APPEALS 6/3/2015 8:30:53 PM
JEFFREY D. KYLE
Clerk
THE STATE OF TEXAS § AUSTIN, TEXAS
MOTION FOR EN BANC RECONSIDERATION TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
COMES NOW Joseph Timothy Shimko, Appellant in the above-styled and numbered cause, by and through his undersigned counsel, and respectfully moves this Court for en banc reconsideration. In support thereof, and pursuant to TEX. R. APP. PROC. 49.7, Appellant would show as follows:
I.
The memorandum opinion provides an accurate rendition of the factual background of this case:
On September 12, 2012, at 2:30 a.m., Deputy Ford was outside a pub assisting other officers on an unrelated call. Deputy Ford saw Scott Williamson staggering in the parking lot and determined that he was intoxicated. Williamson said he had a ride home, so the officers decided not to arrest him for public intoxication and had him sit on the curb to wait for his ride. Deputy Ford saw a vehicle circling the parking lot once or twice and pointed it out to Williamson, who indicated that the vehicle was his ride home.
The vehicle passed Deputy Ford and Williamson, so Deputy Ford flagged it down. Deputy Ford could not remember whether he yelled at the driver or made some type of gesture. According to Deputy Ford, he signaled to the vehicle to ascertain whether the driver was Williamson's
ride, and if the driver had ignored his signal and driven off, Deputy Ford would not have pursued the vehicle. However, the driver did stop, and when Deputy Ford approached the vehicle to inform the driver, [Appellant], that Williamson was sitting on the curb, he smelled the odor of alcohol. Deputy Ford then asked [Appellant] to exit the vehicle and began an investigation for driving while intoxicated.
Shimko v. State, No. 03-13-00403-CR, slip op. at 2 (Tex. App.—
Austin, delivered August 29, 2014) (mem. op., not designated for publication).
On appeal, Appellant argued that he was unlawfully detained by Deputy Ford, who lacked reasonable suspicion. See Appellant’s Br., at 8-12. Meanwhile, the State argued that Appellant’s initial interaction with Deputy Ford constituted a mere encounter. See State’s Br., at 5-11. Despite the trial court’s legal conclusion that the community-caretaking exception validated the detention of Appellant, the State did not rely upon this exception at all in its briefing, while Appellant only mentioned its inapplicability in a footnote. See State’s Br., at 5-11; see also Appellant’s Br., at 8 n. 1 Ultimately, this Court held that the community-caretaking exception validated Appellant’s detention because Deputy Ford was primarily motivated by a community- caretaking purpose. Shimko, slip op., at 6-7.
II.
This Court should grant this motion for en banc reconsideration because the memorandum opinion broadens the community-caretaking exception beyond the scope that it has previously been applied in case-law precedent. While the community-
caretaking exception has been employed to validate the detention of a person who the officer reasonably believes is in need of assistance, the exception has never before been applied to validate the seizure of a person who is completely separated from the one who is in need of such assistance.
The leading case on the community-caretaking exception is Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002). In Corbin, the police officer observed the defendant’s vehicle drive on the shoulder of the road for approximately twenty feet before returning to its lane of traffic. 85 S.W.3d at 274-75. The officer subsequently followed the defendant for about a mile, but he did not observe any traffic violations or indications that the defendant was intoxicated or fatigued. Id., at 275. Even so, the officer testified that he was concerned that the defendant might be in need of assistance due to intoxication or fatigue. Id. On appeal, the Court of Criminal Appeals considered whether the community-caretaking exception validated the detention of the defendant.
According to the Court of Criminal Appeals, “[a]s part of an officer’s duty to ‘serve and protect,’ an officer ‘may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.’” Id., at 276 (emphasis in original). “Once it is determined that an officer is primarily motivated by the community-caretaking function, it must then be determined whether the officer’s belief that the defendant needs help is reasonable.” Id., at 277. In
evaluating the reasonableness of the officer’s belief, courts look to the following non- exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone and/or had access to assistance other than the officer; and (4) to what extent the individual presented a danger to himself or others if left unassisted. Id.
Notably, the above factors are considered with respect to the individual who allegedly needs assistance. The reviewing court ultimately determines whether these factors justify the detention of the individual whom the officer believes needs such assistance: “…the purpose of the community caretaking exception is to allow an officer to ‘seize’ and assist an individual whom he reasonably believes is in need of help…” Id. Ultimately, the Court held that the above factors did not validate the detention of the defendant in Corbin. Id., at 278.
Likewise, in Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999), the community-caretaking exception was considered with respect to the detention of the person who exhibited signs of distress. In that case, the officer observed the defendant vomiting out of an open rear window of a moving vehicle. Wright, 7 S.W.3d at 149-50. The officer stopped the vehicle in order to investigate whether the defendant needed assistance. Id., at 150.
In support of its holding in the case at bar, this Court cited Gonzales v. State, 369 S.W.3d 851 (Tex. Crim. App. 2012). In that case, the defendant stopped his vehicle in a remote area, and the officer believed he might need assistance. Gonzales, 369 S.W.3d at 853. The Court of Criminal Appeals held that the seizure of the defendant was valid under the community-caretaking exception because it was reasonable to believe that he needed assistance. Id., at 855-57.
Similarly, in King v. State, which was cited by this Court in its memorandum opinion, the Dallas court of appeals found that the community-caretaking exception validated the seizure of the individual who exhibited signs of distress. See King v. State, No. 05-13-00178-CR, 2014 WL 2807993, at *5 (Tex. App.—Dallas June 18, 2014, no pet.) (mem. op., not designated for publication). Neither King nor any of the above-cited cases supports the legal proposition that an officer may employ the community-caretaking exception to seize a non-distressed person.
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