                                                                           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).

                                                   /s/ Christopher M. Perri______
                                                   Christopher M. Perri




                                        12
