                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00131-CR



          DENNIS RAY FREEMAN, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 42132-B




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                 MEMORANDUM OPINION
       Dennis Ray Freeman appeals from his convictions by a jury of attempted sexual assault

of a child and indecency with a child. Freeman contends that the trial court erred by failing to

grant his motion to suppress evidence obtained after a warrantless arrest and by ordering him to

pay court appointed attorney fees.

I.     Facts

       The relevant events occurred at an apartment complex in Longview. Several residents of

the apartment unit had seen Freeman on the premises on the day in question. Brenda Smallwood

saw a “little girl” run down the stairs toward the laundry room. She had previously seen

Freeman staring into the window of the child’s apartment. Smallwood called 9-1-1 when she

observed Freeman and the child go into the dark laundry room and then saw the laundry room

door close.    Responding to 9-1-1 calls, police officers entered the darkened laundry room

attached to the apartment unit and found Freeman, a middle-aged man, wearing only boxer

shorts, with a naked girl lying on the floor beside him. One of the responding officers testified

that he knew, from previous encounters, that the girl was under the age of seventeen.

       Freeman first contends that the ultimate admission of evidence was improper because

there was no justification for his warrantless arrest.

II.    Standard of Review

       When we review the ruling on a suppression motion, we afford almost total deference to

the trial court’s determination of historical facts—if supported by the record. Wade v. State, 422

S.W.3d 661, 666–67 (Tex. Crim. App. 2013). Regardless of whether the motion was granted or


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denied, appellate courts view the evidence in the light most favorable to the ruling. Id. The

prevailing party is afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from it.        Id.       However, we review de novo a trial court’s

application of search and seizure law to the facts. Id. We will uphold the trial court’s ruling if it

is reasonably grounded in the record and correct on any theory of law applicable to the case.

III.   Warrantless Arrest

       A police officer may arrest an individual without a warrant if (1) probable cause exists

with respect to the individual in question and (2) the arrest falls within one of the exceptions set

out in Chapter14 of the Texas Code of Criminal Procedure. Neal v. State, 256 S.W.3d 264, 280

(Tex. Crim. App. 2008). More specifically, Article 14.01(b) permits a police officer to “arrest an

offender without a warrant for any offense committed in his presence or within his view.” See

TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (West 2005); Gutierrez v. State, 419 S.W.3d 547,

550–51 (Tex. App.—San Antonio 2013, no pet.). In our review, we look to the totality of the

circumstances grounded by facts. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

Once a defendant objects to the warrantless arrest as an illegal arrest, the burden shifts to the

State to prove its legality. Garrison v. State, 726 S.W.2d 134, 137 (Tex. Crim. App. 1987).

Probable cause requires that the officer have a reasonable belief that, based on facts and

circumstances within the officer’s personal knowledge, the individual committed or will soon

commit an offense. Neal, 256 S.W.3d at 280; Torres, 182 S.W.3d at 902. This reasonable belief

must be founded on specific, articulable facts and not on the mere opinion of the officer. Torres,

182 S.W.3d at 902; Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When several

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officers are involved in investigating a crime, the sum of information known to cooperating

officers at the time of arrest is to be considered in determining whether probable cause to arrest

exists. Garrison, 726 S.W.2d at 137; Woodward v. State, 668 S.W.2d 337 (Tex. Crim. App.

1982).

         The Texas Court of Criminal Appeals has upheld “arrests under [Article] 14.01 . . . when

the police officers personally observed behavior that although not overtly criminal, was, when

coupled with the officers’ prior knowledge, sufficient to establish probable cause that an offense

was then occurring.” Lunde v. State, 736 S.W.2d 665, 667 (Tex. Crim. App. 1987).

         Here, witnesses had reported that an adult male was on the premises staring into the

window of the child’s apartment and that the child and the adult male went into an unlit laundry

room and closed the door. When the officers entered the darkened and closed laundry room,

Freeman was clothed only in boxer shorts and was standing next to a naked minor female who

was lying on the floor. One officer had prior knowledge that the female was a minor under

seventeen years of age. Under these circumstances, an officer could reasonably believe, based

upon the resident’s reports and the officer’s personal knowledge of the child’s age, that a

criminal offense was occurring. 1 Based upon the totality of the circumstances as shown by the

evidence, we conclude that the trial court did not err by overruling the motion to suppress.




1
 The offense of indecency with a child is committed when a person, with intent to arouse or gratify the sexual desire
of any person: causes the child to expose the child’s anus or any part of the child’s genitals, or when a person
engages in sexual contact with a child (any touching including touching through clothing, of the anus, breast, or any
part of the genitals of a child younger than 17 years of age). TEX. PENAL CODE ANN. §§ 21.11(a)(2)(B), 21.11(c)(1)
(West 2011).
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IV.    Attorney Fees Order

       Freeman next contends that the trial court erred by ordering that he, an indigent person,

pay attorney fees for his representation. The judgment assesses $5,695.00 in attorney fees

against Freeman, who was found indigent before trial. There is no indication of any change in

Freeman’s financial status.

       We have addressed this precise type of error many times in the recent past and have

modified the judgment each time as required by law. Court-appointed attorney fees cannot be

assessed against an indigent defendant unless there is proof and a finding that he is no longer

indigent. Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); Mayer v State, 309 S.W.3d

552 (Tex. Crim. App. 2010). In this case, there is no such evidence or finding. The assessment

of attorney fees against Freeman was error. In such circumstances, the proper remedy is not to

reverse the conviction, but merely to modify the judgment by removing the inappropriate fee

assessment. Id. at 252; Martin v. State, 405 S.W.3d 944 (Tex. App.—Texarkana 2013, no pet.).

       We modify the judgment of the trial court by deleting the assessment of fees for

Freeman’s court-appointed attorney. As modified, the trial court’s judgment is affirmed.



                                            Jack Carter
                                            Justice

Date Submitted:       June 30, 2014
Date Decided:         July 30, 2014

Do Not Publish




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