### 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

CLERKIDENTIFY 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 t o Suppress before Honorable
Michael McCo rmick 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) min utes 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.ii i TABLE OF CONTENTS
IDENTIFY OF PARTIES A ND COUNSEL............................................. i
STATEMENT REGA RDING 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 it s 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

....................................... ... ................... 61 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 t hese 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 cas e. 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
Intoxica ted. 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 it s 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 reasonabl eness.” 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 accept s 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. Ag ain, 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 previous ly 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 dis c, 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 y ou don’t show your work, it did n’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 opp ortunities to act, and the absence of a ny 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 sho uld 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 G ranting 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 Meissner6 CERTIFICATE OF SERVICE I certify that I have sent a complete and legible copy of this Appellee’s brief
via electronic transmissio n, to the Travis County Attorney’s Office, ATTN: Giselle
Horton at TCAppellate@traviscountytx.gov on 1 5 th day of December, 2015.

________ __________________________ Wayne Meissner