PD-1639-15 PD-1639-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/17/2015 3:03:14 PM Accepted 12/19/2015 9:24:22 AM ABEL ACOSTA NO. _____________________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
JOSEPH TIMOTHY SHIMKO § PETITIONER-APPELLANT
v. §
THE STATE OF TEXAS § RESPONDENT-APPELLEE
FROM THE THIRD COURT OF APPEALS, AUSTIN, TEXAS CASE NO. 03-13-00403-CR
ON APPEAL FROM THE COUNTY COURT AT LAW #5 TRAVIS COUNTY, TEXAS CAUSE NUMBER C-1-CR-12-215308
PETITION FOR DISCRETIONARY REVIEW
CHRISTOPHER M. PERRI Law Office of Christopher M. Perri 1504 West Ave. Austin, Texas 78701 (512) 917-4378 Fax No. (512) 474-8252 chris@chrisperrilaw.com State Bar No. 24047769 COUNSEL FOR PETITIONER December 18, 2015
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
PETITIONER-APPELLANT Joseph Timothy Shimko (Defendant in the Trial Court)
COUNSEL FOR PETITIONER Christopher M. Perri IN THE APPELLATE COURTS 1504 West Ave. Austin, Texas 78701
COUNSEL FOR PETITIONER Channing C. Neary IN THE TRIAL COURT 1220 Colorado St., #700 Austin, Texas 78701
RESPONDENT-APPELLEE The State of Texas
COUNSEL FOR RESPONDENT George Thomas IN THE TRIAL COURT Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767
COUNSEL FOR RESPONDENT Giselle Horton IN THE APPELLATE COURTS Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ...............................................v
STATEMENT OF THE CASE ................................................................................ vi
STATEMENT OF PROCEDURAL HISTORY..................................................... vii
GROUND FOR REVIEW ..................................................................................... viii
RELEVANT FACTS .................................................................................................1
ARGUMENT AND AUTHORITIES ........................................................................3
PRAYER ..................................................................................................................10
CERTIFICATE OF SERVICE ................................................................................11
CERTIFICATE OF COMPLIANCE .......................................................................12
APPENDIX……………………………………………………………………….13
ii INDEX OF AUTHORITIES
Cases
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)........................... 3-4
Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010) .............................. 4-5, 9
Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005) ...............................4
Florida v. Bostick, 501 U.S. 429, 439 (1991) ............................................................6
Guinn v. State, 1998 WL 418034, at *1 (Tex. App.—Houston[1st Dist.] 1998, no pet.) .........................................................................................................................8
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ..................................3
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) ..........................4
Kaupp v. Texas, 538 U.S. 626, 629 (2003) ................................................................5
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.2006).......................4
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990) ................................3
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ............. 4-6, 8
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006) .............. 3-4
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) .................................................................5
United States v. Steele, 782 F.Supp. 1301, 1309 (S.D.Ind.1992) ..............................5
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007) ...............................3
iii Statutes
TEX. CODE CRIM. PROC. ART. 14.01 ..........................................................................8
TEX. R. APP. PROC. 66.3 .......................................................................................1, 10
TEX. TRANS. CODE §543.001 .....................................................................................8
TEX. TRANS. CODE §543.004 .....................................................................................8
TEX. TRANS. CODE §542.501 ................................................................................. 8-9
TEX.CONST. ART. I, §9 ........................................................................................... 4-5
U.S.CONST.AMEND. 4 .................................................................................................5
iv STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument because he believes that it would aid in this
Court’s decisional process. The resolution of the issue on appeal turns on whether
a reasonable person would have felt free to leave when a police officer flagged
down that person’s vehicle. Oral argument would assist in drawing the line
between a consensual encounter and an investigative detention.
v STATEMENT OF THE CASE
On October 25, 2012, the Travis County Attorney filed an information alleging
that Petitioner committed the offense of Driving While Intoxicated on or about
September 12, 2012. CR 15. Petitioner filed a motion to suppress evidence on
January 22, 2013. CR 56. A hearing on this motion was held on April 9, 2013. RR
I 1. The trial court denied Petitioner’s motion to suppress on April 15, 2013. CR
59. The court issued Findings of Fact and Conclusions of Law explaining its
decision. CR 64. Following the denial of his motion to suppress evidence,
Petitioner pleaded “no contest.” CR 69. The trial court found Petitioner guilty of
this offense and sentenced him to three days in the Travis County Jail. CR 70. The
trial court certified that Petitioner had the right to appeal its ruling on the motion to
suppress. CR 67. Petitioner timely filed his notice of appeal on June 3, 2013. CR
75, 81.
vi STATEMENT OF PROCEDURAL HISTORY
(1) The Third Court of Appeals affirmed the trial court’s judgment on May 21,
2015. Justice Field wrote the memorandum opinion, joined by Justices
Pemberton and Bourland. App. A. On November 25, 2015, following the
filing of a motion for en banc reconsideration, this same panel of justices
reheard the case, withdrew its original opinion, and substituted a second
opinion affirming the trial court’s judgment. Justice Field also wrote the
second opinion. App. B.
(2) Petitioner filed a motion for en banc reconsideration on June 3, 2015.
(3) Petitioner’s motion for en banc reconsideration was denied on November 25,
2015.
vii GROUND FOR REVIEW
When a police officer signals for a person to stop and that person would commit a
crime by failing to obey the officer’s command, would a reasonable person believe
that he is free to leave? RR II 6-8.
viii TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW Petitioner Joseph Timothy Shimko, by and through his
undersigned counsel, and offers this Petition for Discretionary Review. In this
case, a police officer used hand motions and his voice to order Petitioner to stop
his vehicle. In holding that a reasonable person would have felt free to ignore the
officer’s show of authority, the court of appeals has decided an important question
of state and federal law in a way that conflicts with the applicable decisions of this
Court. See TEX. R. APP. PROC. 66.3(a),(b),&(e).
RELEVANT FACTS
On September 12, 2012, Deputy Jeff Ford of the Travis County Sheriff’s
Office arrived at the parking lot of Little Woodrow’s in North Austin, where he
came into contact with Scott Williamson, who appeared very intoxicated. RR II 5-
6. Deputy Ford decided not to arrest Williamson for public intoxication because
Williamson stated that he had a sober ride coming to pick him up. RR II 6. Deputy
Ford asked Williamson to sit on the curb while he waited for his ride. RR II 6.
Next, Deputy Ford noticed Petitioner’s vehicle circle the parking lot a
couple of times. RR II 6. Williamson indicated this vehicle as his ride. RR II 6.
Deputy Ford then proceeded to flag Petitioner down by waving towards Petitioner
and asking him to stop. RR II 6-7. At the moment when Deputy Ford began
1 flagging Petitioner down, Petitioner’s vehicle had already passed the deputy, and it
was about fifty feet away. RR II 7. However, upon observing the uniformed
officer’s hand signals, Petitioner complied by stopping his vehicle. RR II 8.
Deputy Ford proceeded to make contact with Petitioner in order to ascertain
whether he was there to pick up Williamson. RR II 8. Ford testified that he
subsequently detected the odor of an alcoholic beverage emanating from
Petitioner’s breath. RR II 8. Ford then signaled his trainee, Deputy Jeremy Turner,
to come over to conduct an intoxication investigation. RR II 8. Based on Turner’s
investigation, Petitioner was arrested for DWI. RR II 9.
Regarding the law enforcement presence at Little Woodrow’s at the time of
Petitioner’s stop, Deputy Ford testified that three deputies and one sergeant were at
the scene. RR II 11. There were at least two marked police vehicles, along with a
“slick top,” which is a type of stealth police vehicle. RR II 11. The headlights of
the police vehicles were turned on. RR II 11.
Deputy Turner testified that he was being trained at the time of this incident,
and Deputy Ford was his field training officer. RR II 19-20. Turner testified that
three police vehicles were on scene, and hardly anyone else was in the parking lot
because the time was around 2:30 a.m. RR II 23. After Deputy Ford stopped
Petitioner, Ford signaled for Deputy Turner to assist in the investigation. RR II 24.
Turner testified that Ford informed him that he had flagged Petitioner down in the 2 parking lot. RR II 26. Furthermore, Turner testified that Ford likely had his
flashlight in his hand when he stopped Petitioner. RR II 27. Deputy Turner could
not recall whether the police vehicles’ overhead lights were turned on. RR II 28.
The trial court filed written findings of fact and conclusions of law. CR 64.
Regarding Deputy Turner’s conduct in allegedly “flagging down” Petitioner, the
trial court found that “Deputy Ford either flagged down or called for the driver of
the vehicle to stop after the vehicle passed both Mr. Williamson and Deputy Ford.”
CR 64 (at Finding of Fact #8).
ARGUMENT AND AUTHORITIES
Because a reasonable person would not have felt free to leave after the officer signaled for him to stop, the court of appeals erred in finding that the initial interaction between Petitioner and Deputy Ford constituted a consensual encounter, as opposed to an investigative detention.
An appellate court reviews a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666,
673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). In reviewing the trial court’s decision, the reviewing court does not
engage in its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.
Crim. App.1990). As the sole trier of fact, the trial judge is in the best position to
assess the credibility of the witnesses and the weight to be given their testimony.
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32
3 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v.
Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, a reviewing court
gives almost total deference to the trial court’s rulings on (1) questions of historical
fact, even if the trial court’s determination of those facts was not based on an
evaluation of credibility and demeanor, and (2) application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor. Amador, 221
S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim.
App.2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
However, when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, the appellate court reviews the trial court’s rulings
on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53. The
question of whether the historical facts amount to an investigative detention under
the Fourth Amendment is an issue of law that is subject to de novo review. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
There are three distinct categories of interactions between citizens and police
officers: (1) consensual encounters, (2) investigative detentions, and (3) arrests.
Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). While a consensual
encounter is not subject to constitutional scrutiny, a detention constitutes a
“seizure” under both the United States and Texas constitutions. See TEX.CONST. 4 ART. I, §9; see also U.S.CONST.AMEND. 4; see also Crain, 315 S.W.3d at 49; see
also Garcia-Cantu, 253 S.W.3d at 242. Because an encounter is consensual by
nature, a citizen is free to terminate it at any time. Crain, 315 S.W.3d at 49. “An
encounter takes place when an officer approaches a citizen in a public place to ask
questions, and the citizen is willing to listen and voluntarily answers.” Id.
Meanwhile, “an investigative detention occurs when a person yields to the police
officer’s show of authority under a reasonable belief that he is not free to leave.”
Id.; see also Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (a seizure occurs when an
officer, “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen”).
In analyzing the question of whether a seizure has occurred, courts consider
all of the circumstances surrounding the encounter. Garcia-Cantu, 253 S.W.3d at
242; see also Kaupp v. Texas, 538 U.S. 626, 629 (2003). While the officer’s
conduct is the primary focus of the inquiry, the time, place, and attendant
circumstances are also important considerations. Id., at 244. “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.” Id., at 244
(quoting United States v. Steele, 782 F.Supp. 1301, 1309 (S.D.Ind.1992)). This
reasonable-person test is both objective and fact specific; moreover, it presupposes
an innocent person. Id., at 243. 5 A seizure has occurred if “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.” Garcia-Cantu, 253 S.W.3d at 242 (citing
Florida v. Bostick, 501 U.S. 429, 439 (1991)). This Court succinctly describes the
core issue in this type of case:
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.”
Id., at 243
Turning to the case at bar, both the court of appeals and the trial court
incorrectly concluded that Deputy Ford’s conduct was consistent with a consensual
encounter rather than a detention. CR 65. Contrary to the courts’ legal conclusions,
the undisputed facts demonstrate that a reasonable person would have yielded to
the officer’s display of authority.
The attendant circumstances are critical in analyzing how a reasonable
person would have responded to Deputy Ford’s show of authority. The time was
2:30 a.m., and Petitioner was driving in a parking lot that was empty except for
three police vehicles and four uniformed officers. RR II 11, 22-23. The police
vehicles’ headlights were on, which made the police presence obvious to any
6 reasonable person. RR II 11. Moreover, Deputy Ford probably had his flashlight in
his hand when he signaled and called for Petitioner to stop his vehicle. RR II 27.
The court of appeals failed to consider the significance of the fact that
Petitioner had already driven fifty feet past Deputy Ford when the deputy signaled
for him to stop. CR 64 (Finding of Fact #9). If Petitioner had been driving towards
the deputies, who were attending to the intoxicated Mr. Williamson, then perhaps
an argument could be made that Petitioner was consenting to an encounter with the
police so that he could pick up Mr. Williamson. However, Petitioner had already
signaled his intent to not engage in a consensual encounter with the police, as he
drove past them. The only reason Petitioner stopped was to obey Deputy Ford’s
commands (both verbal and non-verbal).
At the hearing, Deputy Ford disingenuously suggested that Petitioner was
free to leave prior to his contact with him, despite the fact that he had admittedly
exercised police authority by flagging Petitioner down. RR II 16. Regardless of
Deputy Ford’s stated beliefs, they are irrelevant because the analysis proceeds
from the perspective of a reasonable person in Petitioner’s shoes. Surrounded by
three police officers and four police vehicles in the middle of the night, no
reasonable person would have felt free to leave after Deputy Ford exercised his
authority.
7 In fact, Petitioner would have committed a criminal offense if he had not
obeyed Deputy Ford’s show of authority. See TEX. TRANS. CODE §542.501
(“Obedience Required to Police Officers and to School Crossing Guards”).
According to this statute, “a person may not willfully fail or refuse to comply with
a lawful order or direction of a police officer.” Id. Violating this statute gives
officers authority to stop, investigate, and arrest. See TEX. TRANS. CODE
§§543.001, 543.004 (authorizing custodial arrest for traffic offenses other than
speeding or open container); see also TEX. CODE CRIM. PROC. ART. 14.01
(authorizing arrest for offense within an officer’s presence); see also Guinn v.
State, 1998 WL 418034, at *1 (Tex. App.—Houston[1st Dist.] 1998, no pet.)
(holding that a violation of TEX. TRANS. CODE §542.501 gives officers authority to
detain or arrest the violator).
Significantly, the test proceeds from the perspective of a reasonable,
innocent person, yet the court of appeals failed to consider the potential
consequences of non-obedience in determining that a reasonable person would
have felt free to leave. See State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.
Crim. App. 2008); see also App. B (memorandum opinion on rehearing). No
innocent person would have felt free to leave in this situation, as that action would
provide the police with probable cause to arrest that person pursuant to TEX.
8 TRANS. CODE §542.501. Thus, a reasonable, innocent person had but one choice:
obey the officer’s order.
Crain v. State is squarely on point. See 315 S.W.3d 43 (Tex. Crim. App.
2010). In that case, the officer testified that upon observing the defendant, he
activated his headlights and called out to him: “Come over here and talk to me.”
Id., at 51. The defendant complied by taking a few steps and then stopping. Id. The
officer further testified that he would have let the defendant go if he had not
complied with his command, as he had not observed anything that could be
construed as illegal activity. Id., at 47. Upon approaching the defendant, the officer
smelled marijuana and an investigative detention ensued. Id. Emphasizing the
mandatory nature of the officer’s command, this Court held that an investigative
detention, as opposed to a consensual encounter, had occurred. Id., at 51-52.
Judge Cochran’s analysis of the difference between a “request” and an
“order” is particularly applicable here:
Under the Fourth Amendment, there is a world of difference between an officer’s request and his order. A request signifies a consensual encounter beyond the purview of the Fourth Amendment; a command, if heeded, usually denotes a Fourth Amendment detention. A request is a question that asks for an answer; an order is a command which requires obedience.
Crain, 315 S.W.3d at 54-55 (Tex. Crim. App. 2010) (Cochran, J., concurring) (citations omitted)
9 Like the officer in Crain, Deputy Ford issued an order when he used his hands and
voice to command Petitioner to stop his vehicle. The fact that Petitioner may have
only observed the officer’s non-verbal hand motion does not distinguish the two
fact patterns, as the issue remains whether a reasonable person would have felt free
to leave. Furthermore, as in Crain, the officer’s headlights were activated at night.
In this climate, Deputy Ford’s conduct cannot be construed as a mere request
that a reasonable person would have felt free to ignore. Instead, it constituted an
order requiring obedience. Despite Petitioner’s obvious reluctance to interact with
the police, he did what any reasonable person would have done when the police
ordered him to stop: he stopped.
In holding that Petitioner failed to demonstrate that the interaction between
himself and Deputy Ford was anything other than a consensual encounter, the court
of appeals failed to explain how this case is distinguishable from Crain. Because
the court of appeals decided an important question of state and federal law in a
manner that conflicts with the applicable decisions of this Court, this Petition for
Discretionary Review should be granted. See TEX.R.APP.PROC. 66.3(c).
PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court
grant his Petition for Discretionary Review in order to determine whether the
10 police officer’s conduct in signaling for Petitioner to stop constituted a seizure, as
opposed to a consensual encounter.
Respectfully submitted,
/s/ Christopher M. Perri_________ CHRISTOPHER M. PERRI Law Office of Christopher M. Perri 1504 West Ave. Austin, Texas 78701 Tel. (512) 917-4378 Fax (512) 474-8252 chris@chrisperrilaw.com State Bar No. 24047769 COUNSEL FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition for
Discretionary Review was electronically transmitted to the following counsel of
record for Respondent-Appellee, via the electronic filing manager, on this the 17th
day of December, 2015.
Giselle Horton Assistant Travis County Attorney P.O. Box 1748 Austin, Texas 78767 giselle.horton@traviscountytx.gov
Lisa McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station
11 Austin, Texas 78711 information@spa.texas.gov
/s/ Christopher M. Perri______ Christopher M. Perri
CERTIFICATE OF COMPLIANCE
This is to certify that the above Petition for Discretionary Review complies
with the length requirements of TEX. R. APP. PROC. 9.4(i)(2)(D) because it contains
2,422 words, not including the parts of the Petition that are excepted under TEX. R.
APP. PROC. 9.4(i)(1).