
                           NO. 07-10-0287-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                           NOVEMBER 15, 2012
                  ___________________________________

                          JOHN HANEY SUMMERS,

                               Appellant

                                   V.

                          THE STATE OF TEXAS,

                                                 Appellee
                  ___________________________________

            FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY;

         NO. 2009-0000211M-CR; HON. ROGER E. TOWERY, PRESIDING
                   __________________________________

                           Memorandum Opinion
                   __________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      John Haney Summers (appellant) appeals the trial  court’s  denial
of his motion to suppress filed after he was  charged  with  possession
of child  pornography.    According  to  appellant,  he  was  illegally
detained after a legal traffic stop.[1]  We affirm.


                               Background
       The  situation  before  us  involves   appellant   arranging   a
rendezvous with a minor female at a local park late one  evening.   The
purpose of the meeting was so they could  play  “mistress.”   Via  that
activity, the youth “could command [appellant] to do  things  and  that
she could spank him for being bad.”  He would also “kiss[] her  shoes.”
 The two had met over the internet  and  communicated  through  emails.
Appellant also maintained a “profile on  the  internet  site  [through]
which he  was  writing”  to  the  girl.   According  to  the  arresting
officer,  information  on  the  site  included  a  representation  that
appellant was sixteen and that he had “friends” who were “13  years  or
younger.”  Some of these “friends” were dressed “in  provocative  ways,
putting  intimate  objects  in  their  mouths  and  [using]  suggestive
language . . . stating they were sexually active  and  things  of  that
sort.”
      The same officer, after viewing the emails and website, opted  to
conduct surveillance of the park at which the minor and appellant  were
supposed to meet.  While there, he spied a green Chevy pickup like  the
one appellant said he would be driving, parked behind  the  truck,  and
activated his  emergency  lights.    It  was  approximately  9:30  p.m.
Furthermore,  the  officer  learned,  “while  [he]  was   checking   on
[appellant’s] driver status,” of a “dispatch”  advising  him  that  the
minor in question had received another  email  from  appellant  stating
that he “was pulled over at the park and the police were  checking  him
out.”
      As the  officer  approached  the  pickup,  he  noticed  appellant
operating a laptop with “many chat  windows  .  .  .  open  .  .  .  .”
Appellant was told that the  officer  wanted  to  speak  with  him  and
“asked if he would come . .  .  to  the  Nocona  PD.”   Appellant  said
“okay.”  The officer then  handcuffed  appellant,  placed  him  in  the
patrol car, and drove him to the police station.  Upon  their  arrival,
appellant was  informed  of  “his  Miranda  rights”  and  waived  them.
Thereafter,  the   officer   “began   questioning   him   about   child
pornography.”   Appellant  eventually  disclosed  that  he   had   such
pornography on  his  laptop  and  allegedly  executed  a  consent  form
purporting to allow the officer to view those  pictures.   “[N]ear  500
pictures of children from the ages of 13 to  infant  performing  sexual
acts with . . . people named as their  sister  or  brother,  father  or
mother, other  unidentified  males  and  females”  were  found  on  the
computer.  This led to appellant’s arrest.
      Appellant moved to suppress  the  evidence  found  after  he  was
detained.  The trial court denied the motion.  The  propriety  of  that
decision is now before us.
      Discussion
       In  his  sole  issue,  appellant  argues  that  the  “the  legal
investigatory detention of [himself] at the  time  of  a  traffic  stop
ripened into an illegal arrest without probable cause in  violation  of
the  Fourth  Amendment  when  [he]  was  detained  in   handcuffs   and
transported to the police station in the  officer’s  car.”   Thus,  the
“evidence obtained thereafter . . . was tainted and  should  have  been
excluded . . . .”  We overrule the issue.
      The pertinent standard of review is well-settled  and  thoroughly
described in opinions such as St. George v. State, 237 S.W.3d 720,  725
(Tex. Crim. App. 2007), Balentine v. State, 71 S.W.3d  763,  768  (Tex.
Crim. App. 2002), Guzman v. State, 955 S.W.2d 85, 89 (Tex.  Crim.  App.
1997) and Hudson v. State, 247  S.W.3d  780,  783  (Tex.  App.–Amarillo
2008, no pet.).  To reiterate it here would serve little purpose.
      Next, a warrantless arrest is, pursuant to the Fourth  Amendment,
unreasonable per se unless it fits into  one  of  a  “few  specifically
established and well delineated exceptions.”  Minnesota  v.  Dickerson,
508 U.S. 366, 372, 113  S.Ct.  2130,  2135,  124  L.Ed.2d  334  (1993);
Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005).  One  such
exception permits a police officer to effect such an arrest when  facts
and circumstances within his knowledge, and of which he has  reasonably
trustworthy information, would authorize a  reasonably  prudent  person
to believe that  the  suspect  committed  or  is  committing  a  crime.
Quinones v. State, 325 S.W.3d 801, 803  (Tex.  App.–Amarillo  2010,  no
pet.).  Under this test, the State need  not  prove  that  the  suspect
actually committed a crime.  Id.  Rather, it is  enough  to  illustrate
that the circumstances enabled a  reasonable  officer  to  so  believe.
Id.; See Adkins v. State, 764 S.W.2d 782, 785 (Tex.  Crim.  App.  1988)
(holding that art. 14.01 arrests have previously been  sanctioned  when
an individual's conduct, while  not  overtly  criminal  by  itself,  is
coupled with  an  officer's  prior  knowledge  so  that  the  otherwise
innocuous conduct reflects that an  offense  is  then  occurring).   In
other words, if an officer could reasonably believe that  the  elements
comprising a crime existed, given the totality of circumstances  before
him, he has probable cause to arrest the actor irrespective of  whether
the State can  prove  later  at  trial  that  a  crime  actually,  i.e.
factually, occurred.   Quinones  v.  State,  325  S.W.3d  at  803;  see
Delgado v. State,  718  S.W.2d  718,  720-21  (Tex.  Crim.  App.  1986)
(finding the warrantless arrest legal even though  the  fact  that  the
hypodermic syringe in the instant case later was shown by a  laboratory
report not to contain a controlled substance, contrary  to  the  police
officer's impression at the scene).
      We next note that a person commits an offense if  he,  “over  the
Internet, by electronic  mail  or  text  message  or  other  electronic
message service or system, or  through  a  commercial  online  service,
knowingly solicits a  minor  to  meet  another  person,  including  the
actor, with the intent that the minor will engage  in  sexual  contact,
sexual intercourse, or deviate sexual intercourse  with  the  actor  or
another person.”  Tex. Penal Code Ann. § 33.021(c) (West  2011).   This
provision says nothing of anyone actually engaging  in  sexual  contact
or intercourse before a crime arises.   Rather,  the  actor  need  only
have the intent to so engage while knowingly  soliciting  a  minor  via
the internet.  And, the circumstances known to the officer at bar  were
enough to allow a reasonable person to believe that appellant  (at  the
time he was handcuffed and placed in the squad car) was in the  process
of violating § 33.021(c).
      The circumstances of  which  we  speak  include  the  officer  1)
knowing of the emails between appellant and the minor,  2)  seeing  the
pictures on the internet site being utilized by appellant  to  converse
with the minor, 3) seeing pictures on that site  of  “friends”  putting
intimate objects in the mouth, 4) reading  the  language  on  the  same
site indicating that his “friends” were “sexually active,”  5)  reading
information  on  the  site  indicating  that  his  “friends”   included
children thirteen years old and younger, 6) knowing that  a  minor  had
been solicited by an individual driving a green Chevy  pickup  to  meet
in a park, 7) knowing that the solicitation occurred via the  internet,
8) reading that the person wanted to play “mistress” with the minor  at
the park, 9) encountering appellant in a  green  Chevy  pickup  at  the
designated location and time, 10) seeing appellant operating  a  laptop
computer, and 11) knowing appellant had just sent the  minor  an  email
about being stopped by the officer.  Whether these circumstances  would
be enough to support a conviction for solicitation  under  §  33.021(c)
of the Penal Code is unimportant, for that is not the issue before  us.
 Rather, we need  only  determine  if  it  created  probable  cause  to
believe the statute  had  been  violated  at  the  time  appellant  was
handcuffed, and we so conclude irrespective of whether he was  actually
arrested at that point.
      The trial court not having abused its  discretion  in  overruling
the motion to suppress, we affirm the judgment.

                                        Per Curiam

Do not publish.






-----------------------
      [1]The State of  Texas  failed  to  submit  an  appellee’s  brief
addressing appellant’s contentions. That is a frustrating  circumstance
occurring with greater frequency.  Whether  intentional  or  not,  such
omissions are not an acceptable alternative to effective advocacy.

