                                                                                                  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-



                                             2
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



                                           3
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.




                                           4
      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.

      The above cases demonstrate that the community-caretaking exception applies to

the seizure of a person who the officer reasonably believes needs assistance. However,

the memorandum opinion in this case broadens the scope of the doctrine in a manner

that would allow officers to detain individuals who are not exhibiting any signs of

distress. According to this Court’s opinion, Appellant was validly detained merely

because the deputy was primarily motivated by his desire to assist a completely



                                          5
separate person (Scott Williamson), who was intoxicated in a parking lot. However,

this Court cites no law, and undersigned counsel has found none, that creates a

precedent for detaining anyone other than the person who exhibits signs of distress.

Considering that this Court did not designate its opinion for publication, it likely did

not intend to create new law by broadening the scope of the community-caretaking

exception.

      Of course, if the distressed individual is vomiting out of the passenger window

of a moving vehicle, as in Wright, the police can employ the community-caretaking

exception to stop that vehicle. This seizure is a necessary predicate to seizing the

distressed individual. If the officer observes signs of intoxication from the driver

during this seizure of the vehicle, the officer may be able to validly seize the driver, as

well. However, that scenario stands in stark contrast to the case at bar. Here, seizing

Appellant’s vehicle was not necessary in order to effect the seizure of a distressed

individual. Rather, the distressed individual (Williamson) had already been seized.

      In conclusion, this Court improperly employed the community-caretaking

exception to validate the seizure of Appellant, who was not exhibiting any signs of

distress. As a result, this Court should grant this motion for en banc reconsideration.

Because reasonable suspicion did not support Appellant’s detention, this Court should

reverse the trial court’s judgment denying the motion to suppress evidence.



                                            6
      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the foregoing

motion be GRANTED.

                                              Respectfully submitted,

                                              /s/ Christopher M. Perri__________
                                              Christopher M. Perri
                                              1504 West Ave.
                                              Austin, Texas 78701
                                              (512) 917-4378
                                              Fax No. (512) 474-8252
                                              State Bar Number: 24047769
                                              chris@chrisperrilaw.com

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Motion for En Banc

Reconsideration was electronically transmitted to Giselle Horton, Assistant Travis

County Attorney, via the electronic filing manager, on this the 3rd day of June, 2015.


                                                     /s/ Christopher M. Perri______
                                                     Christopher M. Perri

                        CERTIFICATE OF COMPLIANCE

      This is to certify that the above Appellant’s Motion for En Banc Reconsideration

complies with the length requirements of TEX. R. APP. PROC. 9(i)(2)(D) because it

contains 1,545 words.

                                                     /s/ Christopher M. Perri______
                                                     Christopher M. Perri



                                          7
