NO. 03-15-00553-CR

In the Third Court of Appeals 

Austin, Texas 

THE STATE OF TEXAS, 

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

ACCEPTED

03-15-00553-CR

8241708

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/15/2015 11:56:02 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/16/2015 9:25:00 AM JEFFREY D. KYLE Clerk
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.
ii

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.
iii

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
1

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?
2

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. 
3

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.
4

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.
5

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
6

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 15

th day of December, 2015.

__________________________________

Wayne Meissner