ACCEPTED
03-15-00553-CR
13004400
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2016 3:00:18 PM
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 10/4/2016 10:51:18 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 POST-SUBMISSION BRIEF
AFTER REMAND TO THE TRIAL COURT
FOR FURTHER FINDINGS AND CONCLUSIONS
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
September 30, 2016 ATTORNEYS FOR THE STATE OF TEXAS
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT
Point of Error: The supplemental findings are still inadequate to
resolve the issue presented, namely, reasonable suspicion that
criminal activity was afoot... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. The trial court has yet to make an unambiguous credibility
finding... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Actual traffic violations are unnecessary before reasonable
suspicion may be found.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. The supplemental findings and conclusions fail to address
reasonable suspicion of intoxication.. . . . . . . . . . . . . . . . . . . . . . . 7
4. The supplemental findings are still ambiguous, and are
inconsistent with the original findings.. . . . . . . . . . . . . . . . . . . . . 7
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i
INDEX OF AUTHORITIES
Cases Page
Annis v. State, 578 S.W.2d 406
(Tex. Crim. App. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Curtis v. State, 238 S.W.3d 376
(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Derichsweiler v. State, 348 S.W.3d 906
(Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Ex parte Reed, 271 S.W.3d 698
(Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fierro v. State, 969 S.W.2d 51
(Tex. App.—Austin 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Dubord, No. 03-15-00553-CR, 2016 Tex. App. LEXIS 2163
(Tex. App.—Austin Mar. 2, 2016, no pet.)
(mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . . 4
Villareal v. State, 935 S.W.2d 134
(Tex. Crim. App. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ii
STATEMENT OF THE CASE
The State has appealed an order suppressing its evidence in an
1
enhanced 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.
On March 2, 2016, the Third Court concluded that the trial court’s
findings did not allow the Court to properly assess the reasonable-
suspicion issue presented. Consequently, the Court abated the appeal and
remanded to the trial court for supplemental findings.
The trial court made further findings on September 15, 2016. The
trial-court clerk filed a supplemental record containing the trial court’s
findings and conclusions on September 23, 2016. That same day, the Third
Court set the case for submission on briefs. The State learned on September
29th that the case had been submitted.
1
The enhancement paragraph alleged that Dubord had a blood-alcohol
concentration greater than .15. CR 15.
1
BACKGROUND
To briefly re-introduce the facts of this case, Judge Michael
McCormick, sitting by assignment, heard pre-trial evidence and entered an
order granting the defense motion to suppress, which alleged only that the
arrest was unlawful. CR 56–58 [motion], 81 [order]. The pretrial hearing’s
only issue, however, was the initial detention’s legality; the defense never
litigated the arrest’s reasonableness. Only Sergeant Johnson, the detaining
officer, testified; the defense did not call the arresting officer. The defense
theory at the pre-trial hearing was that Johnson acted illegally because he
observed Dubord commit traffic violations on Sixth Street, but, instead of
detaining him immediately, followed and observed him for six miles
before initiating a stop. RR 21–71. Sergeant Johnson testified that he
observed a great deal more erratic driving during those brief six miles and
suspected intoxication, RR 20–41, but the trial court’s initial findings barely
touched upon that testimony.
The initial findings and conclusions
The trial court initially found as follows:
2
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.
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 trial 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.
The Third Court of Appeals abated and ordered supplemental
findings
In an unpublished per curiam opinion, the Third Court concluded
that these initial findings and conclusions did not address
• the officer’s testimony that several events in addition to the lane
changes on Sixth Street formed the basis of the stop;
• the credibility of his testimony.
3
The Third Court therefore abated the appeal and remanded the case,
ordering the trial court to make the necessary supplemental findings of fact
and conclusions of law. State v. Dubord, No. 03-15-00553-CR, 2016 Tex.
App. LEXIS 2163 (Tex. App.—Austin Mar. 2, 2016, no pet.) (mem. op., not
designated for publication).
The trial court’s supplemental findings
On remand, the trial court found and concluded as follows:
• ‟Officer Johnson’s testimony, absent the missing video tape, is
insufficiently credible for the Court to believe that any traffic
violations occurred.”
• ‟The stop and arrest of Mr. Dubord was without objective probable
cause.”
Supp CR 4 (emphasis in original).
ISSUE PRESENTED
Did Sergeant Johnson have reasonable suspicion to initiate a traffic
stop?
4
SUMMARY OF THE ARGUMENT
The trial-court’s findings, even though now supplemented, are still
inadequate to decide the issue presented.
ARGUMENT
Point of Error: The supplemental findings and conclusions
are still inadequate to resolve the issue presented, namely,
reasonable suspicion that criminal activity was afoot.
1. The trial court has yet to make an unambiguous credibility
finding.
On remand, the trial court found that, without the missing videotape,
Sergeant Johnson’s testimony is insufficiently credible to believe that any
traffic violations occurred. Supp CR 4. The reasonable inference here is
that, without first seeing whether the DWI videotape corroborates the
officer’s testimony, the trial court cannot find the officer ‟sufficiently”
credible.
The trial court is the sole and exclusive trier of fact and judge of the
credibility of witnesses at a hearing on a motion to suppress. Villareal v.
State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). As the fact finder, the
5
trial court has not only the right but the duty to watch the attitude and
demeanor of a testifying witness and evaluate whether the testimony has
the ring of truth to it. Indeed, due process requires this.
This duty is not dependent on comparing the testimony to
videographic evidence; it is well settled that a witness’s testimony need
not be corroborated by physical evidence, even at trial. See Annis v. State,
578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (officer’s opinion testimony
alone was sufficient to prove intoxication); Fierro v. State, 969 S.W.2d 51, 59
(Tex. App.—Austin 1998, no pet.) (same). Dashboard-mounted video
cameras did not even exist some years ago. And, fact finders can and do
assess the credibility of testimony all the time, without other evidence to
corroborate it.
2. Actual traffic violations are unnecessary before reasonable
suspicion may be found.
A reasonable-suspicion determination is based on the totality of the
circumstances. Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App.
2011); Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007). Thus, there is
6
no requirement that a suspect violate any particular statute to give rise to
reasonable suspicion that criminal activity is occurring, has occurred, or is
about to occur, as the trial court’s supplemental findings imply.
Derichsweiler, 348 S.W.3d at 916–17.
3. The supplemental findings and conclusions fail to address
reasonable suspicion of intoxication.
Sergeant Johnson had sixteen years’ experience as a police officer
when he testified and was the supervising officer on the DWI enforcement
unit when he stopped Dubord on the night in question. If the sergeant’s
testimony is to be believed, then the totality of circumstances give rise to
reasonable suspicion of intoxication. But neither set of findings, taken
together, permits the Third Court to address this legal theory.
4. The supplemental findings are still ambiguous, and are
inconsistent with the original findings.
Initially, the trial court found that Sergeant Johnson had
‟diminished” credibility because he followed Dubord for approximately
six miles to observe his driving behavior. On remand, the trial court found
that the sergeant’s testimony, ‟absent the missing video tape, is
7
insufficiently credible for the Court to believe that any traffic violations
occurred.” Supp CR 4. The findings are suspect because of these
ambiguities and inconsistencies. Cf. Ex parte Reed, 271 S.W.3d 698, 727–28
(Tex. Crim. App. 2008) (discussing in the habeas context how the Court
treats findings when it has become skeptical as to their reliability).
PRAYER
On behalf of the people of the State of Texas, the County Attorney
asks the Court to again abate the appeal and remand to the trial court for
further findings that will permit the Third Court to resolve the reasonable-
suspicion issue presented in this case.
Moreover, because this State’s appeal in this 2012 enhanced DWI
case is accelerated, the County Attorney also asks the Court to order the
trial court to make and file these further findings within a two-week
period. The State sent a courtesy copy of the record via Federal Express to
the Judge McCormick in August of 2015.
8
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
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, counting all of its parts, contains 1,686 words.
Giselle Horton
9
CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this State's
brief via electronic transmission, to Mr. Dubord’s attorney of record, Mr.
Wayne Meissner, at waynemeissner@fitzgeraldmeissner.com on or before
September 30, 2016.
Giselle Horton
Assistant Travis County Attorney
10
State v. Philip Dubord
Combined Opinion