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,
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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
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suppression proceedings). The State therefore requested supplemental
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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
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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.
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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
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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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