                                                                                             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
