                                                                                            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.




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                                             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.

CR 89.

                                  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.

                                   ARGUMENT

      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,

                                     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. 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




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