NO . _____________________________ IN THE COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

JOSEPH TIMOTHY SHIMKO § PETITIONER

- APPELLANT

v . § THE STATE OF TEXAS § RESPONDENT

- APPELL EE

FROM THE THIRD COURT OF APPEALS , AUSTIN, TEXAS

CA SE 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

C HRISTOPHER M. P ERRI Law Office of Christopher M. Perri 1504 West Ave. Austin, Texas 78701 (5 12) 917-4378 Fax No. (512) 474-8252 chris@chrisperrilaw.com State Bar No. 24047769 C OUNSEL FOR P ETITIONER
ORAL ARGUMENT REQUESTED 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 CLERKi IDENTITY OF PARTIES AND COUNSEL

P ETITIONER

- A PPELLANT Joseph Timothy Shimko ( Defendant in the Trial Court)
C OUNSEL FOR P ETITIONER Christopher M. Perri I N THE A PPELLATE C OURTS 1504 West Ave. Austin, Texas 78701
C OUNSEL FOR P ETITIONER Channing C. Neary IN THE T RIAL C OURT 1220 Colorado St., #700 Austin, Texas 78701
R ESPONDENT

- A PPELLEE The State of Texas
C OUNSEL FOR R ESPONDENT George Thomas IN THE T RIAL C OURT Assistant Tr avis County Attorney P.O. Box 1748 Austin, Texas 78767
C OUNSEL FOR R ESPONDENT Giselle Horton IN THE A PPELLATE C OURTS Assistant Travis County Att orney P.O. Box 1748 Austin, Texas 78767ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL

................................ ............................ i

INDEX OF AUTHORITIES

................................ ................................ .................... iii

STATEMENT REGARDING ORAL ARGUMENT

................................ ............... v
STATEMENT OF THE CASE

................................ ................................ ................ vi

STATEME NT 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.................................................................................

. 13iii INDEX OF AUTHORITIES Cases Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)

........................... 3

- 4
Cra in 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[1 st 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. Stat e, 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)

............................... 3iv

Statutes
T EX
. C ODE C RIM
. P ROC
. A RT
. 14.01

................................ ................................ .......... 8
T EX
. R. A PP
. P ROC
. 66.3

................................ ................................ ....................... 1 , 10
T EX
. T RANS
. C ODE §543.001

................................ ................................ ..................... 8
T EX
. T RANS
. C ODE §543.004

................................ ................................ ..................... 8
T EX
. T RANS
. C ODE §542.501

................................ ................................ ................. 8

- 9
T EX .C ONST
. A RT
. I, §9

................................ ................................ ........................... 4

- 5
U.S.C ONST .A MEND
. 4

................................ ................................ ................................ . 5v STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument because he beli eves 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 draw ing the line between a consensual encounter and an investigative detention.vi 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 is sued 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.vii 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 Justice s Pemberton and Bourland. App. A

. On November 25, 2015, following the filing of a motion for en banc reconsiderati on, 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 reconsiderati on on June 3, 2015

. (3) Petitioner’s motion for en banc reconsideration was denied on November 25, 2015.viii GROUND FOR REVIEW
When a police officer signals for a person to stop and that person would commit a crime by fai ling to obey the officer’s co mmand , would a reasonable person believe that he i s free to leave? RR II 6

- 8.1

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 Discretio nary 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 questio n of state and federal law in a way that conflicts with the applicable decisions of this
Court. See T EX
. R. A PP
. P ROC
. 66.3 (a),(b),&(e).

RELEVANT FACTS
On September 12, 2012, Deputy Jef f 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 began2

flagging Petitioner d own, 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 wa s 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 Je remy 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, Deput y Ford testified that three deputies and o ne sergeant were at the scene. RR II 11. There were at least two marked police vehicles, along with a “slick top,” which is a t ype of stealth police vehicle. RR II 11. The headlights of the police vehicles were tur ned on. RR II 11. Deputy Turner testified that he was being trained at the time of this incident, and Deputy Ford w as his field training officer. RR II 19

- 20. T urner testified that three police vehicles were on scene, and hardly anyone else was in the p arking lot becaus e 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 the3

pa rking lot. RR II 26. Furthermore, Turner testified that Ford likely had his flashlight in his hand when he s topped Petitioner . RR II 27. Deputy Turner could not recall whether the police vehicles’ o verhead 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 v ehicle 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 tha t 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. Ro mero 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 p osition 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, 324

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 quest ions 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 t o 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 dete ntion constitutes a “seizure” under both the United States and Texas constitutions. See T EX
. C ONST
.5

A RT
. I, §9 ; see also U.S.C ONST .A MEND
. 4 ; s ee 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 pers on 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 o f authority, has in some way
rest rained the liberty of a citizen”). In analyzing the question of whether a seizure has occurred, courts consider all of the circumsta nces surrounding the encounter. Garcia

- Cantu , 253 S.W.3d at 242; see also Kaupp v. Texa s , 538 U.S. 626, 629 (2003)

. While t he offic er’ s

c onduct is the primary focus of the inquiry, the time, place, and attendant circumstances are also impor tant 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, 13 09 (S.D.Ind.1992) )

. This reasonable

- person test is both objective and fact specific; moreover, it presupposes an innocent person. Id

. , at 243.6

A seizure has occurred if “ the police conduct would have communicated to a reasonable person that the person was n ot free to decline the officers’ requests or otherwise terminate the encounter .” Garcia

- Cantu , 253 S.W.3d a t 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 displ ay 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 associa tes 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 wi th a consensual encounter rather than a dete ntion . 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 wo uld have responded to De puty 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 obv ious to any7

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 veh icle. RR II 27. The court of appeals failed to consider th e 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. W illiamson, 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 p olice, 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, despit e 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 sh oes. 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.8

In fact, Petitioner would have committed a criminal offense if he h ad not obeyed Deputy Ford’s show of authority. See T EX
. T RANS
. C ODE §542.501 (“Obedience Required to Police Officers and to School Crossing Guards”). According to this statute, “a pe rson 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 T EX
. T RANS
. C ODE §§543.001 , 543.004 (authorizing custodial arrest for traffic offenses other than speeding or open container); see also T EX
. C ODE C RIM
. P ROC
. A RT
. 14.01 (authorizing arrest for offense within an officer’s presence); see also Guinn v.
State , 1998 WL 418034, at *1 (Tex. App.

— Houston[1 st Dist.] 1998, no pet.) (holding that a violation of T EX
. T RANS
. C ODE §542.501 gives officers authority to detain or arrest the violator). Sign ificantly, 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 S tate 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 pers on pursuant to T EX
.9

T RANS
. C ODE §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 observ ing 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 mandator y natur e 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 applicab le here: Under the Fourth Amendment, there is a world o f 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)10

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 per son 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 w ould have felt free to ignore

. Instead, it constituted an order r equiring 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 fai led 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 qu estion 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 T EX .R.A PP .P ROC . 66.3 (c).

PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court grant his Petition for Discretio nary Review in order to determine whether the11

police officer’s conduct in signaling for Petitioner to stop con stituted a seizure, as opposed to a consensual encounter

. Respectfully submitted, /s/ Christopher M. Perri

_________ C HRISTOPHER M. P ERRI Law Office of Christopher M. Perri 1504 West Ave. Austin, Texas 78701 Tel. (512) 917

- 4378 Fax (512) 474

- 825 2 chris@chrisperrilaw.com State Bar No. 24047769 C OUNSEL FOR P ETITIONER

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition for
D iscretionary Review was electr onically transmitted to the following counsel of record for Respondent

- Appellee, via the electronic filing manager, on this the 17 th day of December, 2015

. Giselle Horton Assistant Travis County Attorney P.O. Box 1748 Austin , Texas 78 767 giselle.horton@ traviscountytx.gov Lisa McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station12

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 T EX
. R. A PP
. P ROC
. 9 .4 (i)(2)(D) because it contains 2,42 2 words, not including the parts of the Petition that are excepted under T EX
. R.
A PP
. P ROC
. 9.4(i)(1). /s/ Christopher M. Perri

______ Christopher M. Perri