                                                                                      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




                                         6
