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 97 TH DISTRICT COURT OF MONTAGUE COUNTY; NO. 2009-0000211M-CR ; HONORABL E ROGER TOWERY, JUDGE

__________________ _____________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND
Appellant, John Haney Summers, Jr., pled guilty to possession of child pornography 1 and was sentenced to ten years co nfinement pursuant to a plea agreement. In a single point of error, Appe llant 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).2 Background
On December 16, 2009, a Montague Coun ty Grand Jury returned an indictment alleging that, on or about Oc tober 11, 2009, Appellant in tentionally and knowingly possessed visual material that visually de picted, and which Appel lant knew visually depicted, a child who was younge r 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 st atements alleging the evidenc e was obtained following an illegal arrest. At the hearing, Officer Ma tt Poole of the City of Nocona Police Department testified that, on October 11, 2 009, he spoke with Lori Vanistendael. She was concerned that Ashley, her sixteen y ear old daughter, was communicating with Appellant on the internet fo r approximately three weeks. Ashley’s most recent communication from Appellant indicated he was attempting to set up a meeting at a local park. Appellant st ated he was going to “play mi stress” 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 pick up 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 old 2 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.3 Officer Poole went to the park at appr oximately 9:30 p.m. and spotted a green Chevrolet pickup. He approac hed 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. Appel lant had a laptop hooked to a power supply with a number of chat windows open. 3 After Officer Poole identified Appellant as the person comm unicating with Ashley, he aske d Appellant to get out of the pickup. He advised Appell ant that there were some i ssues 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, O fficer 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 polic e department. Appellant ’s pickup remained at the park.
At the police department, Officer Pool e 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 advi sed Appellant of his Miranda rights 5 and then began questioning him about child pornography. Officer Poole

3 During the stop, dispatch informed Officer Poole th at 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 hand cuff persons he did not know prior to placing them in his patrol car.

5 In Miranda v. Arizona, the United States Supreme Court determi ned 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.4 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 comm unicating 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 h ad been sent to him by “fakes.” He stated that, “[f]or a long time, he had hoped to meet a cop [on his co mputer] to turn the stuff [ineligible]” and “keep some of these people out of the syst em” 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 repli ed, “Yes.” Officer Poole then asked Appellant if he would agree to permit him to search his laptop an d Appellant agreed. A ppellant executed a Consent Search Warning form w herein he agreed to a llow 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 statement 7 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 vol untarily 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 pornographic pictures and videos with other childre n and adults. He described in detail internet accounts where he stored pornography, how he a ttracted 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 t he other day, I am willing to help.”

Officer Poole testified tha t, until he arrested Appellant for the child pornography on his laptop, he had te mporarily detained Appel lant to conduct an in vestigation. When he handcuffed Appellant at th e park, he explained to Ap pellant 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 detai n [him] for a little bit and ask ed 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 pr ior 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 hi s laptop. He subsequently contradicted his

7 Appellant’s second statement was recorded and transc ribed. 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.6 earlier testimony and stated that Officer Poole did not ask him at the park whether he wanted to go to the po lice department.
Following the hearing, the trial court denied Appellant’ s motion. Appellant pled guilty pursuant to a plea agreem ent that preserved his right to appeal the trial court’s ruling on his motion to suppress and he wa s 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.Cri m.App. 2006), the Court of Criminal Appeals held that "upo n the request of the losing par ty on a motion to suppress evidence, the trial court shall state its ess ential findings." Those findings of fact and conclusions of law must be adequate to pr ovide an appellate co urt with a basis upon which to review the trial court's app lication of the law to the facts. Id. The findings need to be recorded in some way, whether wr itten and filed or st ated on the record. Id.
When the accused challenges the mo tion 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 proc eeding to the trial court to allo w 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, or der) (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.-Ama rillo Feb. 2, 2011, order).7 The reporter's record of the suppression hearing in the underlying case does not contain any statements on the re cord that could be considered findings by the trial court. Consequently, we abate this appeal and remand the c ause to the trial court for the filing of findings of fact and c onclusions of law as required by Cullen . We direct the Honorable Roger Towery, Pr esiding 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 inclu ded 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 f iling of this supplemental reco rd, the appellate record will be complete.
If Appellant determines, after reviewing t he trial court’s findings and conclusions, that he should amend or supplement his brie f, 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 supplementa l 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 pe t.). 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. A nn. 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).