                                     NO. 07-10-0287-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                  OCTOBER 20, 2011
                           ______________________________


                       JOHN HANEY SUMMERS, JR., APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY;

         NO. 2009-0000211M-CR ; HONORABLE ROGER TOWERY, JUDGE

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               ABATEMENT AND REMAND


       Appellant, John Haney Summers, Jr., pled guilty to possession of child

pornography1 and was sentenced to ten years confinement pursuant to a plea

agreement. In a single point of error, Appellant asserts the trial court erred by denying

his motion to suppress all evidence obtained as a result of his illegal arrest.



1
See Tex. Penal Code Ann. § 43.26(A)(1) (West 2011).
                                      Background


       On December 16, 2009, a Montague County Grand Jury returned an indictment

alleging that, on or about October 11, 2009, Appellant intentionally and knowingly

possessed visual material that visually depicted, and which Appellant knew visually

depicted, a child who was younger than eighteen years of age at the time the image of

the child was made, engaging in sexual conduct, to-wit: actual deviate sexual

intercourse.


       On January 5, 2010, Appellant filed a motion to suppress the contents of a laptop

computer and two written statements alleging the evidence was obtained following an

illegal arrest.     At the hearing, Officer Matt Poole of the City of Nocona Police

Department testified that, on October 11, 2009, he spoke with Lori Vanistendael. She

was concerned that Ashley, her sixteen year old daughter, was communicating with

Appellant on the internet for approximately three weeks.         Ashley’s most recent

communication from Appellant indicated he was attempting to set up a meeting at a

local park.     Appellant stated he was going to “play mistress” with her; she could

command him to do things, spank him for being bad, and make him beg. Appellant

further stated that he would be driving a green Chevrolet pickup and would be parked at

the park between 8:00 and 9:00 p.m. that evening. In his internet profile, Appellant

represented he was sixteen years old2 and suggested that he was sexually active with

children who were thirteen years old and under while depicting sexually provocative

images and language.


2
Appellant is forty-three years old.


                                           2
          Officer Poole went to the park at approximately 9:30 p.m. and spotted a green

Chevrolet pickup. He approached the pickup from behind and turned on his overhead

lights.     His intention was to find out more information regarding Appellant’s

communications with Ashley.               When he approached the pickup, he recognized

Appellant from his picture in his internet profile. Appellant had a laptop hooked to a

power supply with a number of chat windows open.3                       After Officer Poole identified

Appellant as the person communicating with Ashley, he asked Appellant to get out of

the pickup. He advised Appellant that there were some issues he wanted to speak with

him about regarding a child in Nocona and asked him if he would come with him to the

Police Department and speak with him about it. Appellant replied, “Okay.” Before

placing Appellant in the back seat of his patrol car, Officer Poole handcuffed Appellant

and explained that he was doing so for his and Appellant’s safety.4                         Officer Poole

described Appellant as very cooperative and extremely compliant.                          He then drove

Appellant six or seven blocks to the police department. Appellant’s pickup remained at

the park.


          At the police department, Officer Poole placed Appellant on a bench, still

handcuffed, while he prepared for the interview. He subsequently led Appellant to his

office, removed the handcuffs and they began to talk. He orally advised Appellant of his

Miranda rights5 and then began questioning him about child pornography. Officer Poole


3
 During the stop, dispatch informed Officer Poole that Appellant had e-mailed Ashley indicating he had
been pulled over and the police were checking him out.
4
 Officer Poole testified that it was his practice to handcuff persons he did not know prior to placing them in
his patrol car.
5
In Miranda v. Arizona, the United States Supreme Court determined that an accused held in custody,
must be given required warnings prior to questioning. Miranda v. Arizona, 384 U.S. 436, 469-72, 86 S.Ct.

                                                      3
asked Appellant if he would waive his rights and Appellant executed a written waiver of

his Miranda rights.6


        In his handwritten statement on the same page as his Miranda waiver, Appellant

stated that he had been communicating with Ashley and discussed how he had set up

computer accounts to protect his children from predators.                       He could tell who were

“fakes” and would get them to send him “[p]ics and videos” which he stored in folders

and e-mails. He further indicated that, on his computer, he had nude photographs of

boys and girls performing sexual acts that had been sent to him by “fakes.” He stated

that, “[f]or a long time, he had hoped to meet a cop [on his computer] to turn the stuff

[ineligible]” and “keep some of these people out of the system” and that “[he] hoped that

by [his] action it [made] the site safer for kids and adults.”


        Officer Poole asked Appellant if he had any nude pictures of child pornography

on his laptop. Appellant replied, “Yes.” Officer Poole then asked Appellant if he would

agree to permit him to search his laptop and Appellant agreed. Appellant executed a

Consent Search Warning form wherein he agreed to allow his laptop to be searched.

Officer Poole then retrieved the laptop, confirmed that nude pictures of child

pornography were on the computer and placed Appellant under arrest.


        On October 13, 2009, Officer Poole took a second statement7 from Appellant

wherein he admitted to posing as a fourteen year old girl on the internet and trading

1602, 16 L.Ed.2d 694 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex.Crim.App. 2003).
6
 Appellant initialed the form next to each right he was voluntarily waiving, i.e., right to remain silent, right
to counsel and his right to terminate the interview at any time. See Tex. Code Crim. Proc. Ann. art.
38.22, § 2(a) (West 2005). He also signed the form.



                                                       4
pornographic pictures and videos with other children and adults. He described in detail

internet accounts where he stored pornography, how he attracted underage children

and solicited girls thirteen to fifteen years of age for sex.                   During the transcribed

interview statement, Officer Poole asked to be excused to speak with Officer Berry.

Appellant responded, “Alright, I told you the other day, I am willing to help.”


        Officer Poole testified that, until he arrested Appellant for the child pornography

on his laptop, he had temporarily detained Appellant to conduct an investigation. When

he handcuffed Appellant at the park, he explained to Appellant that he was being

handcuffed for their safety because Appellant was being placed in the back seat of his

patrol car. When they arrived at the police department, the handcuffs were removed

and Appellant was placed in an office.


        Appellant testified he was parked at the park after dark chatting online with a

Chinese friend when Officer Poole approached his car. When Officer Poole informed

him that “he was going to detain [him] for a little bit and asked to take him to the [police

department] and ask some questions,” Appellant testified that he “[s]tarted freaking out

because [he] didn’t really know what was going on, but [he] complied with him.” When

Officer Poole placed handcuffs on Appellant prior to placing him in the patrol car,

Appellant believed he was under arrest and unable to leave. He also testified that,

before he had signed any waivers, he and Officer Poole returned to the pickup and was

told that Officer Poole was going to get his laptop. He subsequently contradicted his

7
 Appellant’s second statement was recorded and transcribed. Prior to giving the statement, Appellant
again initialed a voluntary waiver form next to each right he was waiving, i.e., right to remain silent, right
to counsel and his right to terminate the interview at any time. See Tex. Code Crim. Proc. Ann. art.
38.22, § 2(a) (West 2005). He also signed the form.


                                                      5
earlier testimony and stated that Officer Poole did not ask him at the park whether he

wanted to go to the police department.


       Following the hearing, the trial court denied Appellant’s motion. Appellant pled

guilty pursuant to a plea agreement that preserved his right to appeal the trial court’s

ruling on his motion to suppress and he was sentenced to ten years confinement.

Appellant filed a formal request for Findings of Fact and Conclusions of Law and this

appeal followed. No Findings of Fact and Conclusions of Law were ever filed.


                                         Analysis


       In Cullen v. State, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court of

Criminal Appeals held that "upon the request of the losing party on a motion to suppress

evidence, the trial court shall state its essential findings." Those findings of fact and

conclusions of law must be adequate to provide an appellate court with a basis upon

which to review the trial court's application of the law to the facts. Id. The findings need

to be recorded in some way, whether written and filed or stated on the record. Id.


       When the accused challenges the motion to suppress ruling and requests

findings of fact and conclusions of law, as was done here, but the trial court fails to

comply with that request, the proper remedy is for the appellate court to abate the

appeal and remand the proceeding to the trial court to allow the trial court to make the

necessary findings. See Scheideman v. State, No. 02-10-00154-CR, 2011 Tex.App.

LEXIS 5197, at *2 (Tex.App.--Fort Worth June 30, 2011, order) (abating and remanding

to the trial court to make findings); Harper v. State, No. 07-10-0131-CR, 2011 Tex.App.

LEXIS 760, at *3 (Tex.App.-Amarillo Feb. 2, 2011, order).

                                             6
        The reporter's record of the suppression hearing in the underlying case does not

contain any statements on the record that could be considered findings by the trial

court. Consequently, we abate this appeal and remand the cause to the trial court for

the filing of findings of fact and conclusions of law as required by Cullen. We direct the

Honorable Roger Towery, Presiding Judge of the 97th District Court of Montague

County, to make and file his findings on or before November 21, 2011. Those findings

and conclusions shall be included in either a supplemental reporter's record or a

supplemental clerk's record to be filed with the Clerk of this Court on or before

November 30, 2011. On the filing of this supplemental record, the appellate record will

be complete.


        If Appellant determines, after reviewing the trial court’s findings and conclusions,

that he should amend or supplement his brief, his amended or supplemental brief will be

due thirty days after the supplemental record is filed.                   Tex. R. App. P. 38.6(a).            If

Appellant files an amended or supplemental brief, the State will have thirty days

thereafter to file a responsive brief.8


                                                            Per Curiam


Do not publish.




8
 In this proceeding, the State did not file a brief nor request additional time to do so. Accordingly, we
have conducted an independent analysis of the merits of Appellant’s claim of error to determine whether
error occurred, revealing the absence of Findings of Fact and Conclusions of Law. See Little v. State,
246 S.W.3d 391, 397-98 (Tex.App.—Amarillo 2008, no pet.). The decision to independently review the
merits of Appellant’s point of error should not be construed as approval of the State’s failure to file a brief.
See Tex. Code Crim. Proc. Ann. art. 2.01 (West 2005) (“Each district attorney shall represent the State in
all criminal cases in the district courts and appeals therefrom . . . .) (Emphasis added).


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