NO. _____________________________ 

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

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

CLERK
i

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
ii

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
iii

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
iv

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
v

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.
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 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.
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 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.
viii

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.
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 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 
2

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 
3

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 
4

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.
5

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.
6

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 
7

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.
8

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.
9

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)
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 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 
11

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
12

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