                                                                                            ACCEPTED
                                                                                        03-15-00553-CR
                                                                                                7757150
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  11/10/2015 9:37:30 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                   11/10/2015 9:37:30 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 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

November 10, 2015                     ATTORNEYS FOR THE STATE OF TEXAS



                        ORAL ARGUMENT IS NOT REQUESTED
                    IDENTITY 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
           Post Office Box 1748
           Austin, Texas 78767

     Appellee was represented by:

           Wayne D. Meissner
           812 San Antonio Street, Suite 400
           Austin, Texas 78701-2224



                STATEMENT REGARDING ORAL ARGUMENT

     This enhanced DWI case asks: Is reasonable suspicion defeated if a

DWI enforcement officer who sees traffic violations in the early-morning

hours on Sixth Street does not detain immediately, but instead follows for

six miles and observes more erratic driving before pulling the motorist

over? Because this question may be fully and fairly addressed in briefs, the

State does not request oral argument.
                                        i
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT

         Point of Error: The trial court abused its discretion in
         suppressing the State’s evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         1.1       The trial court’s ruling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
         1.2       The standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
         1.3       What are the facts of this case under the current findings?. . . . 6
                   1.3.1 The trial court found that Sergeant Johnson observed
                         traffic violations on Sixth Street.. . . . . . . . . . . . . . . . . . . . . . 8
                   1.3.2 Additionally, the trial court found that Johnson
                         claimed to have stopped Dubord for Sixth Street
                         traffic violations, but that this claim had
                         diminished credibility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
         1.4       The finding—that Johnson’s claim to have stopped Dubord
                   for Sixth Street violations had diminished credibility
                   because he followed for six miles—shows that the trial court
                   misapplied the law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
         1.5       Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
                                                             ii
                                          INDEX OF AUTHORITIES

Cases                                                                                                                Page
Armitage v. State, 637 S.W.2d 936
       (Tex. Crim. App. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Carmouche v. State, 10 S.W.3d 323
       (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Crittenden v. State, 899 S.W.2d 668
       (Tex. Crim. App. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Davis v. United States,              U.S.         , 131 S. Ct. 2419
       (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Garcia v. State, 827 S.W.2d 937
       (Tex. Crim. App. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Miles v. State, 241 S.W.3d 28
       (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Powell v. State, No. 03-10-00728-CR, 2011 Tex. App. LEXIS 7601
       (Tex. App.—Austin Sept. 14, 2011, no pet.)
       (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 11
State v. Dixon, 206 S.W.3d 587
       (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Johnson, 336 S.W.3d 649
       (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Wade v. State, 422 S.W.3d 661
       (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Walter v. State, 28 S.W.3d 538
       (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Whren v. United States, 517 U.S. 806
       (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Wilson v. State, 311 S.W.3d 452
       (Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
York v. State, 342 S.W.3d 528
       (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1093 (2012).. . . . . . . . . 10


                                                            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.

                                BACKGROUND

      After a pretrial evidentiary hearing, Judge Michael McCormick,

sitting by assignment, entered an order granting the motion to suppress,

which alleged only that the arrest was unlawful. CR 56–58 [motion], 81

[order]. But the pretrial hearing’s only issue 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 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



  1
     The enhancement paragraph alleged that Dubord had a blood-alcohol
concentration greater than .15. CR 15.
                                       1
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, RR

20–41, but the trial court’s findings barely touch upon that testimony.

      The trial court found as follows:

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 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.




                                      2
                               ISSUE PRESENTED

      Do the federal and state exclusionary rules mandate suppression if a

DWI enforcement officer does not pull a motorist over immediately for a

traffic violation, but follows him briefly for six miles?

                        SUMMARY OF THE ARGUMENT

      The findings show 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. The

record supports the finding that Johnson saw Sixth Street violations, but

not the finding that Johnson claimed to have stopped Dubord for this

reason. Johnson testified that he stopped Dubord on suspicion of DWI,

based on the totality of the circumstances.

      Furthermore, Johnson’s subjective motivation for detaining is

irrelevant. The reasonable-suspicion test is objective, and a traffic violation

committed in an officer’s presence authorizes an initial stop. The

suppression order was therefore an abuse of the court’s discretion.



                                       3
      The order stands for the astonishing proposition that reasonable

suspicion is defeated when an officer follows for less than six minutes to

observe more suspicious behavior. In short, the order suppresses all

evidence underlying the stop because that stop was the product of police

investigation. The order punishes commendable conduct, and therefore

misapplies the federal and state exclusionary rules, whose sole aim is to

deter police misconduct.

                                 ARGUMENT

      Point of Error: The trial court abused its discretion in
      suppressing the State’s evidence.

      1.1   The trial court’s ruling

      The trial court concluded that “Defendant argues his stop and arrest

were without probable cause.” CR 89. But the parties litigated only the

investigative detention’s reasonableness. We may therefore fairly infer,

because this involves only a legal conclusion, that the trial court meant to

conclude that the stop was without reasonable suspicion.




                                       4
      1.2   The standard of review

      Courts apply a bifurcated standard of review to a ruling on a motion

to suppress evidence. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim.

App. 2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

Under that standard, the Court defers to the trial court’s determination of

historical facts ?if supported by the record,” Wade v. State, 422 S.W.3d 661,

666 (Tex. Crim. App. 2013), but reviews de novo the trial court’s appli-

cation of the law to those facts. Wilson, 311 S.W.3d at 458. Similarly,

appellate courts afford ?almost total deference” to rulings on mixed

questions of law and fact when the resolution of those questions depends

on the evaluation of credibility and demeanor. They review de novo (1)

mixed questions of law and fact that do not depend on an evaluation of

credibility and demeanor, and (2) purely legal questions. State v. Johnson,

336 S.W.3d 649, 657 (Tex. Crim. App. 2011).




                                       5
        1.3   What are the facts of this case under the current findings?

        The factual findings are set out in the background section of this

brief. The most salient finding comes after a section entitled ?conclusion of

law”:

        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. This finding may be reasonably read to show that the trial court (1)

believed that Sergeant Johnson observed violations on Sixth Street, but (2)

found that Johnson’s claim that he stopped Dubord for this reason had

?diminished” credibility because Johnson followed Dubord six miles before

detaining him.

        This is the most reasonable reading of that finding, because (1)

Johnson’s observing violations on Sixth Street in the early morning hours

would explain why he began to follow and observe Dubord; and (2) the

main thrust of defense counsel’s pretrial theory was that Johnson was

neglectful of duty for not stopping Dubord sooner after observing not only



                                        6
the Sixth Street violations but all the other violations that Johnson observed

                        2
during the six miles.


    2
        Counsel developed this theory at great length. Johnson

•        ?decided not to turn on [his overhead] lights when [he] first observed a
        crime being committed.” RR 21.
•       did not activate his overhead lights on MoPac ?to keep a traffic violator
        from entering MoPac Boulevard.” RR 22.
•       did [not] ?hit [his] overhead lights to get the traffic violator off of MoPac
        onto Rollingwood[.]” RR 23.
•       did not ?hit [his] overhead lights” when Dubord drifted out of his lane five
        or six times on MoPac. RR 24.
•       saw at least two traffic violations in the 1600 block of West Sixth Street, a
        speeding violation ?somewhere across the river,” and ?several lane
        violations” on Mopac, but still was not ?sure if [he was] going to enforce
        the traffic laws.” RR 25.
•       did not make any effort to enforce the traffic laws on at least three or more
        occasions. RR 26.
•       was not prevented by roadway obstructions or vehicular concerns from
        asking Dubord to exit on Barton Skyway. RR 27.
•       did not ?ask the vehicle to exit at any of the [MoPac exits], even to give a
        warning citation for all of the traffic violation [Johnson had] already
        observed.” RR 27–28.
•       did not ?make a decision to enforce the traffic laws near the 360 exit[.]”
        RR 28.
•       did not, ?for whatever reason,” decide to enforce the traffic law on the
        Southwest Parkway exit. RR 29–30.
•       was not impeded by obstacles or barriers that prevented him from asking
        the driver to pull over on Southwest Parkway. RR 29.
•       did not turn on his overhead lights at the Monterey Oaks intersection.
        RR 30.
•       had no barriers or impediments to enforcing the traffic laws from West
        Sixth Street ?all the way past the exit from Monterey Oaks[.]” RR 36.
                                           7
            1.3.1 The trial court found that Sergeant Johnson observed
                  traffic violations on Sixth Street.

      The record supports the finding that Johnson observed lane-change

violations on Sixth Street. RR 16, 37. It is axiomatic that a traffic violation

committed in an officer’s presence authorizes an initial stop. Walter v. State,

28 S.W.3d 538, 543 (Tex. Crim. App. 2000); Armitage v. State, 637 S.W.2d

936, 939 (Tex. Crim. App. 1982). The suppression order was therefore an

abuse of the trial court’s discretion.

            1.3.2 Additionally, the trial court found that Johnson
                  claimed to have stopped Dubord for Sixth Street
                  traffic violations, but that this claim had
                  diminished credibility.

      Contrary to the court’s finding, Johnson did not claim to have

stopped Dubord for the Sixth Street traffic violations. Johnson

unequivocally testified that he was on DWI enforcement duty and was




•     did not turn on his overhead lights until he got near the intersection at
      Monterey Oaks. RR 61.

      In the hearing’s argument portion, counsel asked the trial court to
suppress, not because Johnson’s testimony was not credible but because the
?distance [and] time were unreasonable under the circumstances.” RR 68–71.
                                         8
?there to get drunks off the road,” not to write traffic tickets. RR 42. As a

DWI enforcement officer, he makes stops immediately for ?excessive

speeding or near collisions, stuff like that[.]” RR 42. ?But when I start

seeing minor traffic violations that continue to occur, then it may take me a

little bit longer to make that decision, and that’s what happened with this

case.” RR 26. He initiated a detention on suspicion of DWI, based on a

totality of circumstances that included the Sixth Street violations, when

Dubord nearly struck another car as he drifted out of his lane on the

MoPac frontage road. RR 28.

      Based 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[.]

RR 41.




                                        9
      1.4   The finding—that Johnson’s claim to have stopped Dubord
            for Sixth Street violations had diminished credibility because
            he followed for six miles—shows that the trial court
            misapplied the law.

      The trial court found that Johnson’s credibility as to this claim was

?diminished” because he followed and watched Dubord for six miles.

(This, by the way, would have taken fewer than six minutes because

Dubord was speeding on MoPac.) This finding shows a misapplication of

the law for at least two reasons.

      First, under the objective test for determining whether an

investigative detention is reasonable under the Fourth Amendment or

Article I, § 9, an officer’s subjective intent for the detention is irrelevant.

Whren v. United States, 517 U.S. 806, 813–14 (1996); York v. State, 342 S.W.3d

528, 536 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1093 (2012); Garcia v.

State, 827 S.W.2d 937, 943 (Tex. Crim. App. 1992) (adopting the objective

test for Fourth Amendment analysis); Crittenden v. State, 899 S.W.2d 668,

671, 673 (Tex. Crim. App. 1995) (adopting the objective test for Article I, § 9

claims). Consequently, part of the court’s finding—that the officer’s


                                        10
claimed motivation for stopping Dubord was less credible because he

followed him for six miles—has no legal significance because it applies a

long-disavowed subjective test.

     Second, a narrow focus on time and distance misapplies the totality

test, particularly when the officer has a reasonable explanation for the

delay, such as wanting to further observe suspicious behavior before

detaining. See Powell v. State, No. 03-10-00728-CR, 2011 Tex. App. LEXIS

7601, at *15 (Tex. App.—Austin Sept. 14, 2011, no pet.) (mem. op., not

designated for publication). Dixon, upon which the defense relied at the

pretrial hearing, does not stand for the proposition that police commit

misconduct when they follow a motorist to observe more before making a

stop. On the contrary, the Court of Criminal Appeals upbraided the

Texarkana Court for misapplying the totality test by ?unnecessarily

focus[ing] on the distance and time the police followed the driver before

pulling Appellee over.” State v. Dixon, 206 S.W.3d 587, 591 (Tex. Crim.

App. 2006).



                                     11
      1.5   Conclusion

      Police officers have every right to drive on public streets behind other

cars, just as they are free to approach people and ask for information or

their cooperation. Johnson’s following Dubord for a brief distance did not

implicate federal or state constitutional rights. Indeed, Sergeant Johnson

should be commended, not condemned, for the careful police work that he

engaged in before initiating the minimal intrusion on Dubord’s liberty.

      Courts and defense lawyers often decry that a police officer should

have waited to see more before initiating a stop when they suspect DWI:

?The officer was too hasty to detain!” Here, ironically, the contention is the

opposite: ?Whatever the officer’s assignment is, the law requires him to

stop a motorist for a traffic violation immediately, or else!” If anything,

following to observe more suspicious behavior only increases reasonable

suspicion, which has no upper cut-off point.

      The pretext doctrine is dead. And a suppression ruling on these

grounds, if allowed to stand, would have a chilling effect on investigation.

The court’s suppression order unjustly penalizes the people of this state
                                      12
and ignores the exclusionary rule’s sole purpose: to deter police

misconduct. Davis v. United States,      U.S.    , 131 S. Ct. 2419, 2432 (2011);

Miles v. State, 241 S.W.3d 28, 35 (Tex. Crim. App. 2007).

                                    PRAYER

      Because the trial court abused its discretion in suppressing the

evidence on these facts, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to sustain his point, reverse the trial court's

suppression order, and remand this case to the trial court for proceedings

consistent with its opinion.

                                      Respectfully submitted,

                                      DAVID A. ESCAMILLA
                                      TRAVIS COUNTY ATTORNEY




                                       13
                                   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 2890 words.




                                   Giselle Horton

                          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
November 12, 2015.




                                   Giselle Horton
                                   Assistant Travis County Attorney
                                     14
