Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 11:42:38 AM JEFFREY D. KYLE Clerk No. 03-15-00553-CR THIRD COURT OF APPEALS 12/17/2015 11:42:38 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00553-CR *1 ACCEPTED CLERK In the Third Court of Appeals Austin, Texas

T HE S TATE OF T EXAS , Appellant, v.

P HILIP D UBORD , Appellee.

On appeal from the County Court-at-Law Number Three, Travis County, Texas

Trial Cause No. C-1-CR-12-204755 S TATE ’ S R EPLY B RIEF D AVID A. E SCAMILLA T RAVIS C OUNTY A TTORNEY G ISELLE H ORTON A SSISTANT T RAVIS OUNTY A TTORNEY State Bar Number 10018000 Post Office Box 1748 Austin, Texas 78767 Telephone: (512)854-9415 TCAppellate@traviscountytx.gov December 17, 2015 A TTORNEYS FOR THE TATE OF T EXAS

O RAL RGUMENT I S N OT R EQUESTED TATEMENT R EGARDING O RAL RGUMENT

Resolution of the reasonableness-of-the-detention issue that this enhanced DWI case presents depends on what the Third Court determines

from the trial court’s findings. Either the trial court misapplied the law, or

its findings are insufficient and ambiguous. Either way, the issues may be

fully and fairly argued on briefs.

i *3 T ABLE OF C ONTENTS S TATEMENT R EGARDING O RAL A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

I NDEX OF A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

S TATEMENT OF THE C ASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B ACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I SSUE P RESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

S UMMARY OF THE S TATE ’ S A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 RGUMENT

Reply Point : Alternatively, the State asks the Third Court to abate and remand for supplemental findings... . . . . . . . . . . . . . . . . . . . 4 P RAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C ERTIFICATE OF C OMPLIANCE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ERTIFICATE OF ERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ii *4 I NDEX OF UTHORITIES Cases Page

State v. Elias , 339 S.W.3d 667

(Tex. Crim. App. 2011) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 State v. Mendoza , 365 S.W.3d 666

(Tex. Crim. App. 2012) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State v. Saenz, 411 S.W.3d 488

(Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 iii TATEMENT OF THE ASE

The State appeals an order suppressing its evidence in an enhanced 1 CR 15. The trial court entered the suppression order on August DWI case.

5, 2015. CR 81. The State gave notice of appeal on August 25, 2015. CR

90–91. The State’s original brief was filed on November 10, 2015. Dubord

tendered a brief for filing on December 11, 2015.

B ACKGROUND Although Dubord insists on page 3 of his brief that the pre-trial issue was “objective probable cause for the arrest,” the suppression hearing’s

only issue was the initial detention’s legality. RR 21–71. Only Sergeant

Johnson, the detaining officer testified at the pre-trial hearing; the arresting

officer did not testify.

The trial court found:

1. In the early morning hours of 3-23-12 Officer Johnson observed the

Defendant traveling west in the 1600 block of West Sixth Street. *6 2. The Defendant moved across two lanes of traffic and headed onto

MoPac Boulevard, and Officer Johnson followed.

3. Officer Johnson testified he followed the Defendant for

approximately six more miles before stopping him, testifying that the defendant crossed from his lane of travel on more than one occasion.

CR 89.

The court concluded:

Defendant argues his stop and arrest were without probable cause. The fact the officer waited six miles to stop the defendant diminishes the credibility of his claim that he stopped the defendant for lane change violations on Sixth Street.

CR 89.

I SSUE P RESENTED Dubord contends that the findings do not state that Judge McCormick actually believed that Johnson saw Dubord commit lane-

change violations on Sixth Street. He further contends that the trial court

made no credibility finding as to any of the erratic or offensive driving that

Johnson witnessed while he followed Dubord for about six miles. What

facts did the trial court find? UMMARY OF THE RGUMENT

As the State’s original brief argued, if the Third Court determines from the findings that the trial court (1) believed that Sergeant Johnson saw

Dubord commit traffic violations on Sixth Street, but (2) disbelieved his

claim that he stopped Dubord for those violations, then the suppression

order was an abuse of the trial court’s discretion.

In reply to Dubord’s contentions, the State argues that, if the Third Court determines from the findings that the trial court did not believe that

Sergeant Johnson saw Sixth Street violations, the findings are insufficient to

resolve the issue of the initial detention’s legality. Johnson testified to a

great many other facts in support of the detention, and the current findings

do not address that testimony.

Moreover, the Third Court could reasonably determine that the “diminished credibility” finding is ambiguous.

When the trial court’s findings are ambiguous and insufficient to resolve the legal issue, the reviewing court may not imply findings but

must remand to the trial court to make findings with greater clarity and

specificity. The State therefore alternatively renews a former request to

abate and remand for supplemental findings. RGUMENT

Reply Point : Alternatively, the State asks the Third Court to abate and remand for supplemental findings.

What does the finding of “diminished” credibility mean? Credible, but only somewhat? Not credible? Whatever it means, what does it apply

to? Does it apply to Johnson’s observation of traffic violations on Sixth

Street, or only to the claim to have stopped Dubord for those violations?

Even if the trial court did not believe that Sergeant Johnson saw Sixth Street violations, what of the great many other facts that made up the

totality of circumstances upon which Johnson relied before initiating a 2

detention? The current findings are silent on this matter. Indeed, it could *9 reasonably be argued that the findings are ambiguous in that they do not

permit us to say with certainty that the trial court either believed or

disbelieved Johnson’s testimony as to any of what he saw before detaining

Dubord.

Appellate courts are not permitted to imply findings from a trial court’s explicit findings. Instead, they must abate the appeal and remand

for supplemental findings. State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim.

App. 2013); State v. Elias , 339 S.W.3d 667, 674 (Tex. Crim. App. 2011)

(reversing and remanding for additional fact findings because dispositive

historical fact of whether the defendant timely activated his turn signal

was absent from findings made by trial court); State v. Mendoza , 365 S.W.3d

666, 673 (Tex. Crim. App. 2012) (reversing and remanding for additional

fact findings because dispositive credibility determination of testifying

officer was absent from trial court’s findings).

P RAYER Because the trial court abused its discretion in suppressing the evidence on these facts, the Travis County Attorney, on behalf of the State

of Texas, renews his prayer to sustain his first point, reverse the trial

court's suppression order, and remand this case to the trial court for

proceedings consistent with its opinion.

Alternatively, the Travis County Attorney asks the Court to sustain his reply point and remand the case to the trial court for more specific

findings.

Respectfully submitted, D AVID A. E SCAMILLA T RAVIS OUNTY A TTORNEY Giselle Horton Assistant Travis County Attorney State Bar Number 10018000 Post Office Box 1748 Austin, Texas 78767 Telephone: (512) 854-9415 TCAppellate@traviscountytx.gov TTORNEYS FOR THE TATE OF T EXAS *11 C ERTIFICATE OF C OMPLIANCE Relying on Corel WordPerfect’s word-count function, I certify that this document complies with the word-count limitations of T EX . R. PP . P.

9.4. The document contains 1,271 words. Giselle Horton ERTIFICATE OF ERVICE I certify that I have sent a complete and legible copy of this State's reply brief via electronic transmission, to Mr. Dubord’s attorney of record,

Mr. Wayne Meissner, at waynemeissner@fitzgeraldmeissner.com on or

before December 17, 2015. Giselle Horton Assistant Travis County Attorney

[1] The enhancement paragraph alleged that Dubord had a blood-alcohol concentration greater than .15. CR 15.

[2] For instance, Sergeant Johnson testified that he had sixteen years’ experience and was the supervising officer on the DWI enforcement unit. RR 5. While following Dubord on MoPac, he saw him traveling 72 miles per hour in a 65-mile-per-hour zone. RR 21. Dubord’s car drifted out of its lane five to six times on MoPac. RR 24. Johnson decided to initiate a detention when Dubord nearly hit another car. RR 28, 60. After Johnson activated his overhead lights, Dubord ran a red light. RR 40.