Joseph Timothy Shimko v. State ( 2015 )

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-
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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
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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.
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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
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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.
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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
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