ACCEPTED 03-15-00553-CR 8282088 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 11:42:38 AM JEFFREY D. KYLE No. 03-15-00553-CR CLERK
FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 12/17/2015 11:42:38 AM 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 REPLY BRIEF
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
December 17, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED STATEMENT REGARDING ORAL ARGUMENT
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 TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT
Reply Point: Alternatively, the State asks the Third Court to abate and remand for supplemental findings... . . . . . . . . . . . . . . . . . . . 4
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii INDEX OF AUTHORITIES
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).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iii STATEMENT OF THE CASE
The State appeals an order suppressing its evidence in an enhanced
1 DWI case. CR 15. The trial court entered the suppression order on August
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.
BACKGROUND
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.
1 The enhancement paragraph alleged that Dubord had a blood-alcohol concentration greater than .15. CR 15. 1 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.
ISSUE PRESENTED
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?
2 SUMMARY OF THE ARGUMENT
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 3 specificity. The State therefore alternatively renews a former request to
abate and remand for supplemental findings.
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
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. 4 reasonably be argued that the findings are ambiguous in that they do not
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ACCEPTED 03-15-00553-CR 8282088 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/17/2015 11:42:38 AM JEFFREY D. KYLE No. 03-15-00553-CR CLERK
FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 12/17/2015 11:42:38 AM 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 REPLY BRIEF
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
December 17, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED STATEMENT REGARDING ORAL ARGUMENT
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 TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT
Reply Point: Alternatively, the State asks the Third Court to abate and remand for supplemental findings... . . . . . . . . . . . . . . . . . . . 4
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii INDEX OF AUTHORITIES
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).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iii STATEMENT OF THE CASE
The State appeals an order suppressing its evidence in an enhanced
1 DWI case. CR 15. The trial court entered the suppression order on August
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.
BACKGROUND
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.
1 The enhancement paragraph alleged that Dubord had a blood-alcohol concentration greater than .15. CR 15. 1 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.
ISSUE PRESENTED
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?
2 SUMMARY OF THE ARGUMENT
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 3 specificity. The State therefore alternatively renews a former request to
abate and remand for supplemental findings.
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
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. 4 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).
PRAYER
Because the trial court abused its discretion in suppressing the
evidence on these facts, the Travis County Attorney, on behalf of the State 5 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,
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
6 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. The document contains 1,271 words.
Giselle Horton
CERTIFICATE OF SERVICE
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