State v. Philip Dubord

• Court: Court of Appeals of Texas
• Decided: September 24, 2015
• Docket: 03-15-00553-CR
• Status: Published

Opinion

ACCEPTED 03-15-00553-CR 7083095 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/24/2015 1:44:44 PM JEFFREY D. KYLE No. 03-15-00553-CR CLERK

In the Third Court of Appeals FILED IN 3rd COURT OF APPEALS Austin, Texas AUSTIN, TEXAS 9/24/2015 1:44:44 PM JEFFREY D. KYLE Clerk

THE STATE OF TEXAS, Appellant,

v.

PHILIP DUBORD, Appellee.

On appeal from the County Court-at-Law Number Three, Travis County, Texas Trial Cause No. C-1-CR-12-204755

STATE’S MOTION TO ABATE THE APPEAL FOR SUPPLEMENTAL FINDINGS

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

This is a State’s appeal from an order suppressing evidence in an

enhanced DWI case. CR 81. Judge Michael McCormick, sitting by

assignment, made written findings on August 7, 2015. CR 82. A copy of the

court’s original findings is attached to this motion. The only issue in this case—at the pre-trial hearing and on appeal—

is the legality of the initial detention. The trial court’s August 7th findings

and conclusions do not provide an adequate basis upon which to review

the court’s application of the law to the facts. Specifically, the findings as

they now stand say nothing about the officer’s credibility, except to note

that the court did not believe the officer’s claim that he stopped Dubord for

lane-change violations on Sixth Street. But the reporter’s record does not

support this finding, because it shows that Sergeant Johnson did not claim

to have stopped Dubord for traffic infractions on Sixth Street. Instead, the

testimony was that he stopped Dubord on suspicion of DWI

[b]ased on the time of day, which was 1:44 a.m. in the morning; the location at which [he] observed the vehicle coming from, which would have been downtown Austin, which is occupied by many nightclubs and drinking establishments; the minor traffic violations of failing to signal intent, failing to maintain a single marked lane, and speeding, and then eventually running the red light[.]

2 RR 41. After the initial detention, Johnson approached the car and saw a

female slumped over in the front passenger seat, passed out from

intoxication. 2 RR 42, 44. The driver, who was later identified as Dubord, 2 had glassy eyes and an odor of alcohol about him. 2 RR 44. Sergeant

Johnson was the supervising officer of the Austin Police Department’s

DWI enforcement team on the night in question, and has 16 years of law

enforcement experience. 2 RR 5, 43.

The trial court’s August 7th findings do not constitute the “essential

findings” that the Cullen opinion contemplates. State v. Cullen, 195 S.W.3d

696, 699 (Tex. Crim. App. 2006) (upon timely request, trial court must give

findings and conclusions adequate to provide an appellate court with a

basis upon which to review the trial court’s application of the law to the

facts); see also State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013)

(appellate court will not presume factual findings that may be dispositive

in a case when a trial court’s findings are an inadequate basis upon which

to make a legal conclusion); State v. Mendoza, 365 S.W.3d 666, 670 (Tex.

Crim. App. 2012) (same); State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim.

App. 2011) (trial court has an obligation to make findings and conclusions

that are adequate and complete, covering every potentially dispositive

issue that might reasonably be said to have arisen in the course of the 3 suppression proceedings). The State therefore requested supplemental

1 findings on August 20th. CR 87.

Now that the appellate record has been filed, the trial court no longer

has jurisdiction to make supplemental findings. TEX. R. APP. P. 25.2(g);

Farris v. State, 712 S.W.2d 512, 514 (Tex. Crim. App. 1986) (holding trial

court’s power to act in a given case ends when the appellate record is filed

in appellate court, except for matters concerning bond, and trial court’s

attempt to supplement record after appellate record was filed was invalid).

The State therefore moves to abate. Rather than imply findings in support

of the ruling, appellate courts must abate and remand the case to the trial

judge to make findings of fact with greater specificity when the original

findings are insufficient to resolve the legal question. The trial judge is in

the best position to clarify ambiguous factual findings and to make explicit

1 Because Judge McCormick does not have an e-mail address, the State sent the request for supplemental findings to his Lockhart address via Federal Express. The State included a transcription of the reporter’s record with its request for supplemental findings. Judge McCormick signed for the package when it was delivered to him on August 21st. The Lockhart address is 703 West San Antonio, Lockhart, Texas 78644. 4 credibility determinations. Mendoza, 365 S.W.3d at 673; see also TEX. R. APP.

P. 44.4.

PRAYER

For these reasons, the State asks the Court to abate this appeal and

remand to the trial court, with instructions to supplement the findings

sufficiently to satisfy Cullen’s requirement of “essential findings,” i.e.,

findings and conclusions adequate to provide the Third Court with a basis

upon which to review the trial court’s application of the law to the facts.

Respectfully submitted,

DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY

Giselle Horton Assistant Travis County Attorney State Bar Number 10018000 Post Office Box 1748 Austin, Texas 78767 Telephone: (512)854-9415 TCAppellate@traviscountytx.gov

ATTORNEYS FOR THE STATE OF TEXAS

5 CERTIFICATE OF COMPLIANCE

Relying on Corel WordPerfect’s word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. Not counting the attachment, the document contains 932 words.

Giselle Horton

CERTIFICATE OF SERVICE

I certify that I have sent a complete and legible copy of this State's

motion via electronic transmission, to Mr. Dubord’s attorney of record, Mr.

Wayne Meissner, at wmeissner@fitzgeraldmeissner.com, on September 24,

2015.

Giselle Horton Assistant Travis County Attorney

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