ACCEPTED 03-15-00553-CR 8241708 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/15/2015 11:56:02 AM JEFFREY D. KYLE CLERK NO. 03-15-00553-CR In the Third Court of Appeals FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 12/16/2015 9:25:00 AM JEFFREY D. KYLE THE STATE OF TEXAS, Clerk
Appellant Vs. PHILIP DUBORD Appellee
On appeal from the County Court at Law Number Three, Travis County, Texas Trial Cause Number C-1-CR-12-204755
APPELLEE’S BRIEF
WAYNE MEISSNER State Bar Number 13912000 FITZGERALD & MEISSNER, P.C. 812 San Antonio, Suite 400 Austin, Texas 78701 (512) 474-4700 (512) 474-1606 (FAX) wmeissner@fitzgeraldmeissner.com
December 15, 2015 ATTORNEY FOR APPELLEE
ORAL ARGUMENT IS REQUESTED IDENTIFY OF PARTIES AND COUNSEL The parties to the trial court’s order suppressing the prosecution’s evidence
are the Travis County Attorney on behalf of the State of Texas, and Philip Dubord,
Appellee.
The State of Texas was represented by:
David A. Escamilla Travis County Attorney P. O. Box 1748 Austin, Texas 78767
Appellee was represented by:
Wayne D. Meissner 812 San Antonio, Suite 400 Austin, Texas 78701
STATEMENT REGARDING ORAL ARGUMENT
The threshold issue in the hearing on the Motion to Suppress before Honorable
Michael McCormick was whether the arresting Austin Police Officer presented a
credible claim of objective probable cause to finally effect an arrest based on a
purported sighting of lane change violations after continuing to follow Mr. Dubord
for another than (10) minutes and approximately six (6) more miles. Judge
McCormick concluded that the testimony was not sufficiently credible to establish
objective probable cause for the arrest and granted the Motion to Suppress. Because of the contrasting views of the Findings of Fact and Conclusion of
Law between the State and Defendant which may not be adequately addressed in our
briefs, Defendant requests the opportunity to present oral argument.
ii TABLE OF CONTENTS
IDENTIFY OF PARTIES AND COUNSEL………………………………………i
STATEMENT REGARDING ORAL ARGUMENT…………………….………..i
BACKGROUND…………………………………………………...……………...1
ISSUE PRESENTED………………………………………………………………1
SUMMARY OF APPELLEE’S ARGUMENT……………………………………2
STATEMENT OF THE CASE…………………………………………….………2
ARGUMENT
Response to Point of Error: The trial court did not abuse its discretion in granting Appellee’s Motion to Suppress Evidence for lack of adequate objective probable cause...…………………3
PRAYER…………………………………………………………………………..5
CERTIFICATE OF COMPLIANCE……………………...………………………5
CERTIFICATE OF SERVICE…………………………………...……………….6
iii BACKGROUND
1. Judge McCormick agreed that the State wholly failed to meet their burden
of proof that any claimed traffic violations occurred anywhere during the
six (6) mile extended experience.
It is apparent that, based on Officer’s Johnson failure to act, his apparent
confusion concerning locations, and inconsistent testimony, Judge McCormick
applied the law to these facts and concluded the State’s evidence was not credible
and therefore the arrest of Mr. Dubord was not made with objective adequate
probable cause.
Issue Presented
Shouldn’t this Appellate Court grant “almost total deference” to Hon. Michael
McCormick’ Findings of Fact and Conclusion of Law by agreeing that he did not
abuse the Court’s broad discretion in ruling that an extended six (6) mile and over
ten (10) minute follow failed to establish objective adequate probable cause for an
arrest of Appellee, because the Court did not accept the credibility of Officer
Johnson that any claimed traffic violation occurred?
1 Summary of Appellee’s Argument
Contrary to the State’s apparent misinterpretation of Judge McCormick’s
Conclusion of Law, his honor nowhere states that he actually believed Mr. Dubord
committed any traffic violation because his honor disbelieved the “…claim that he
stopped the defendant for lane change violations on Sixth Street.”
The Court’s ruling accepts that a follow for ten (10) minutes over six (6) miles
when there are no impediments to law enforcement functions, and no finding of
credible evidence of intervening violations does not support the State’s burden of
proving objective adequate probable cause for the arrest in this case.
STATEMENT OF THE CASE
Mr. Philip Dubord was arrested in Austin, Texas on March 23, 2012 and
charged by a complaint based on a Probable Cause Affidavit dictated by Austin
Police Officer Adam Johnson with the misdemeanor offense of Driving While
Intoxicated.
Hon. Michael McCormick Granted Defendant’s Motion to Suppress the
Arrest after entering Findings of Fact that did not support the State’s burden of proof,
and a Conclusion of Law that a claim of traffic violations was not credible, and the
arrest was without objective probable cause.
2 ARGUMENT
Response to Point of Error: The trial court did not abuse its discretion in granting Appellee’s Motion to Suppress Evidence for lack of adequate objective probable cause.
The State prosecutor really cannot have it both ways in attacking Judge
McCormick’s ruling: 1. On Page 1 of their Brief, in the Background section, the
State claims “…the pretrial hearing’s only issue was the initial detention’s legality;
the defense never litigated the arrest’s reasonableness.” Then on Page 4 of their
Brief, in the Argument section the State declares, “…the parties litigated only the
investigative detention’s reasonableness.”
Unlike the State’s effort to devine what Judge McCormick “…meant to
conclude…”, Appellee accepts and urges this Court to agree, that Judge
McCormick’s Order rejects the State’s evidence of objective probable cause for the
arrest as not being sufficiently credible, and to grant “almost total deference” to
Judge McCormick’ Findings and Conclusion.
Again, unlike the State’s wishful thinking on Page 6 of their Brief restating
Judge McCormick’s Conclusion of Law, Judge McCormick nowhere states that he
believed Officer Johnson’s claim, and clearly since Officer Johnson followed
Appellee for six (6) miles before taking any law enforcement action, it appears that
Judge McCormick did not believe any of the alleged intervening acts of misconduct
had occurred, and so he made no findings thereon.
3 It was particularly disingenuous of the State to try to apologize for, or explain,
its failure to comply with the Michael Morton Act in not producing Officer
Johnson’s dash cam video. It is very likely it does not exist! Officer Johnson
suggested complete surprise that the County Attorney’s Office did not have his
video, that he knows he activated it in following Appellee because he always
religiously engages his cam and it must have been misplaced in transition between
use of tapes and discs. The sad aspect of this charade was the plain fact that the State
had previously complied with discovery requests in producing the follow-up Officer
Anthony Martin’s dash cam digital video. There was no Officer Johnson
supplemental offense report reference to a numbered and filed for evidence video,
either video tape or digital disc, and to this day none has been produced.
Clearly, this revelation was of help in Judge McCormick’s Conclusion of
“diminished credibility,” applying the age old school teacher admonition that, if you
don’t show your work, it didn’t happen.
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ACCEPTED 03-15-00553-CR 8241708 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/15/2015 11:56:02 AM JEFFREY D. KYLE CLERK NO. 03-15-00553-CR In the Third Court of Appeals FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 12/16/2015 9:25:00 AM JEFFREY D. KYLE THE STATE OF TEXAS, Clerk
Appellant Vs. PHILIP DUBORD Appellee
On appeal from the County Court at Law Number Three, Travis County, Texas Trial Cause Number C-1-CR-12-204755
APPELLEE’S BRIEF
WAYNE MEISSNER State Bar Number 13912000 FITZGERALD & MEISSNER, P.C. 812 San Antonio, Suite 400 Austin, Texas 78701 (512) 474-4700 (512) 474-1606 (FAX) wmeissner@fitzgeraldmeissner.com
December 15, 2015 ATTORNEY FOR APPELLEE
ORAL ARGUMENT IS REQUESTED IDENTIFY OF PARTIES AND COUNSEL The parties to the trial court’s order suppressing the prosecution’s evidence
are the Travis County Attorney on behalf of the State of Texas, and Philip Dubord,
Appellee.
The State of Texas was represented by:
David A. Escamilla Travis County Attorney P. O. Box 1748 Austin, Texas 78767
Appellee was represented by:
Wayne D. Meissner 812 San Antonio, Suite 400 Austin, Texas 78701
STATEMENT REGARDING ORAL ARGUMENT
The threshold issue in the hearing on the Motion to Suppress before Honorable
Michael McCormick was whether the arresting Austin Police Officer presented a
credible claim of objective probable cause to finally effect an arrest based on a
purported sighting of lane change violations after continuing to follow Mr. Dubord
for another than (10) minutes and approximately six (6) more miles. Judge
McCormick concluded that the testimony was not sufficiently credible to establish
objective probable cause for the arrest and granted the Motion to Suppress. Because of the contrasting views of the Findings of Fact and Conclusion of
Law between the State and Defendant which may not be adequately addressed in our
briefs, Defendant requests the opportunity to present oral argument.
ii TABLE OF CONTENTS
IDENTIFY OF PARTIES AND COUNSEL………………………………………i
STATEMENT REGARDING ORAL ARGUMENT…………………….………..i
BACKGROUND…………………………………………………...……………...1
ISSUE PRESENTED………………………………………………………………1
SUMMARY OF APPELLEE’S ARGUMENT……………………………………2
STATEMENT OF THE CASE…………………………………………….………2
ARGUMENT
Response to Point of Error: The trial court did not abuse its discretion in granting Appellee’s Motion to Suppress Evidence for lack of adequate objective probable cause...…………………3
PRAYER…………………………………………………………………………..5
CERTIFICATE OF COMPLIANCE……………………...………………………5
CERTIFICATE OF SERVICE…………………………………...……………….6
iii BACKGROUND
1. Judge McCormick agreed that the State wholly failed to meet their burden
of proof that any claimed traffic violations occurred anywhere during the
six (6) mile extended experience.
It is apparent that, based on Officer’s Johnson failure to act, his apparent
confusion concerning locations, and inconsistent testimony, Judge McCormick
applied the law to these facts and concluded the State’s evidence was not credible
and therefore the arrest of Mr. Dubord was not made with objective adequate
probable cause.
Issue Presented
Shouldn’t this Appellate Court grant “almost total deference” to Hon. Michael
McCormick’ Findings of Fact and Conclusion of Law by agreeing that he did not
abuse the Court’s broad discretion in ruling that an extended six (6) mile and over
ten (10) minute follow failed to establish objective adequate probable cause for an
arrest of Appellee, because the Court did not accept the credibility of Officer
Johnson that any claimed traffic violation occurred?
1 Summary of Appellee’s Argument
Contrary to the State’s apparent misinterpretation of Judge McCormick’s
Conclusion of Law, his honor nowhere states that he actually believed Mr. Dubord
committed any traffic violation because his honor disbelieved the “…claim that he
stopped the defendant for lane change violations on Sixth Street.”
The Court’s ruling accepts that a follow for ten (10) minutes over six (6) miles
when there are no impediments to law enforcement functions, and no finding of
credible evidence of intervening violations does not support the State’s burden of
proving objective adequate probable cause for the arrest in this case.
STATEMENT OF THE CASE
Mr. Philip Dubord was arrested in Austin, Texas on March 23, 2012 and
charged by a complaint based on a Probable Cause Affidavit dictated by Austin
Police Officer Adam Johnson with the misdemeanor offense of Driving While
Intoxicated.
Hon. Michael McCormick Granted Defendant’s Motion to Suppress the
Arrest after entering Findings of Fact that did not support the State’s burden of proof,
and a Conclusion of Law that a claim of traffic violations was not credible, and the
arrest was without objective probable cause.
2 ARGUMENT
Response to Point of Error: The trial court did not abuse its discretion in granting Appellee’s Motion to Suppress Evidence for lack of adequate objective probable cause.
The State prosecutor really cannot have it both ways in attacking Judge
McCormick’s ruling: 1. On Page 1 of their Brief, in the Background section, the
State claims “…the pretrial hearing’s only issue was the initial detention’s legality;
the defense never litigated the arrest’s reasonableness.” Then on Page 4 of their
Brief, in the Argument section the State declares, “…the parties litigated only the
investigative detention’s reasonableness.”
Unlike the State’s effort to devine what Judge McCormick “…meant to
conclude…”, Appellee accepts and urges this Court to agree, that Judge
McCormick’s Order rejects the State’s evidence of objective probable cause for the
arrest as not being sufficiently credible, and to grant “almost total deference” to
Judge McCormick’ Findings and Conclusion.
Again, unlike the State’s wishful thinking on Page 6 of their Brief restating
Judge McCormick’s Conclusion of Law, Judge McCormick nowhere states that he
believed Officer Johnson’s claim, and clearly since Officer Johnson followed
Appellee for six (6) miles before taking any law enforcement action, it appears that
Judge McCormick did not believe any of the alleged intervening acts of misconduct
had occurred, and so he made no findings thereon.
3 It was particularly disingenuous of the State to try to apologize for, or explain,
its failure to comply with the Michael Morton Act in not producing Officer
Johnson’s dash cam video. It is very likely it does not exist! Officer Johnson
suggested complete surprise that the County Attorney’s Office did not have his
video, that he knows he activated it in following Appellee because he always
religiously engages his cam and it must have been misplaced in transition between
use of tapes and discs. The sad aspect of this charade was the plain fact that the State
had previously complied with discovery requests in producing the follow-up Officer
Anthony Martin’s dash cam digital video. There was no Officer Johnson
supplemental offense report reference to a numbered and filed for evidence video,
either video tape or digital disc, and to this day none has been produced.
Clearly, this revelation was of help in Judge McCormick’s Conclusion of
“diminished credibility,” applying the age old school teacher admonition that, if you
don’t show your work, it didn’t happen.
Although the State succeeded in having Officer Johnson testify that he took
law enforcement action based on the “totality of the circumstances” and not on
“reasonable suspicion”, because of Officer Johnson’s confusion concerning events,
locations, distances, missed opportunities to act, and the absence of any video, Judge
McCormick simply and rightly concluded that Officer Johnson’s claim of objective
probable cause was not credible.
4 PRAYER
Because the Hon. Michael McCormick’s Findings of Fact and Conclusion of
Law should be accorded “almost total deference”, Appellee begs this Court to agree
that Judge McCormick did not abuse his discretion and to Affirm the trial court’s
Order Granting the Motion to Suppress.
Respectfully submitted,
FITZGERALD & MEISSNER, P.C. 812 San Antonio, Suite 400 Austin, Texas 78701 (512) 474-4700 (512) 474-1606 (FAX)
By: ______________________________ Wayne Meissner State Bar No. 13912000 wmeissner@fitzgeraldmeissner.com
CERTIFICATE OF COMPLIANCE
Relying on Microsoft Word’s word-count function, I certify that this
document complies with the word-count limitations of Tex. R. App. P. 9.4. The
document, counting all of its parts, contains 679 words.
_________________________________ Wayne Meissner
5 CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this Appellee’s brief
via electronic transmission, to the Travis County Attorney’s Office, ATTN: Giselle
Horton at TCAppellate@traviscountytx.gov on 15th day of December, 2015.
__________________________________ Wayne Meissner