                                                                                     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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