                                   NO. 07-05-0144-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  DECEMBER 20, 2006

                          ______________________________


                        ELAX GREEN BRADLEY, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 248th DISTRICT COURT OF HARRIS COUNTY;

                  NO. 992,798; HON. JOAN CAMPBELL, PRESIDING

                         _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                               MEMORANDUM OPINION

       In this appeal, and in one issue, appellant Elax Green Bradley contends his

conviction for the felony offense of possession of a controlled substance of more than one

but less than four grams, with intent to deliver, must be reversed. Subsequent to his

conviction by the jury of the charged offense, appellant entered into an agreed proceeding

in which he stipulated as to prior convictions, pled true to enhancement counts, and was


      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2006).
assessed a punishment of 25 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. His basis for seeking reversal is that the trial court erred

in refusing to suppress evidence obtained as the result of an invalid search and seizure.

Disagreeing that reversal is required, we affirm the judgment of the trial court.

                                    Factual Background

       The nature of appellant’s challenge, although in the main a legal one, requires us

to briefly summarize the relevant evidence. The State presented the testimony of three

Harris County sheriff’s deputies, Mario Quintanilla, Wallace Earl Jones, Jr., and Edward

Lopez. Deputy Quintanilla averred that he had been a sheriff’s deputy in Harris County

since 1991. He said the department had instituted a “knock and talk” procedure. Under

that procedure, when the department received a tip that drug activity was taking place at

a residence, the officers would go to the address, knock on the door, and talk to the

residents to attempt to ascertain the validity of the tip. He estimated that they received tips

as often as four or five times a day.

       On June 30, 2004, the day in question, the officers went out to a residence located

at 6317 West Montgomery in Houston to check out a tip they had received about drug

activity at that location. He, Jones and Lopez proceeded to the residence in order to carry

out a “knock and talk” procedure there. As they approached, he said lights were on in the

residence and he could see into the master bedroom as the windows had only sheer

curtains. He saw a male, later identified as appellant, standing by a female on the bed.

The man was holding a clear plastic baggy in his hands that contained a rock-like

substance which he believed was cocaine. There was a screen door at the entrance to the

house with the main door being open.

                                              2
       Deputy Jones knocked on the door and a black male later identified as Delvin Green

came to the door, saw the officers, attempted to shut the door on Jones and ran back

toward the restroom of the house. They also saw appellant running toward the restroom.

The officers then entered the house and, as they did so, saw appellant with his hand in the

toilet bowl. The officers detained appellant and Green. After they had done so, Deputy

Jones spoke to a lady identified as Dewanna Taylor who said she was the owner or lessee

of the house and who, he said, voluntarily signed a consent to search the residence.

However, Taylor testified that the reason she signed the consent was because the police

had threatened to take her to jail. After the consent form was signed, Deputy Lopez went

into the restroom and recovered a cell phone and two pieces of crack cocaine rock from

inside the toilet and a plastic baggy from outside the toilet.

        In overruling the suppression motion, the trial court found that the testimony of

Quintanilla was credible, that he did see through the window, and that at that time there

were sufficient exigent circumstances to justify entering the house. The court also found

that the consent to the search was voluntary. Other portions of the testimony may be

referred to if it becomes necessary to a proper discussion of appellant’s challenge.

                                         Discussion

       The gist of appellant’s complaint is that the drug evidence should have been

suppressed because it was obtained in a warrantless search that violated the Fourth

Amendment to the federal constitution, article 1, §9 of the Texas Constitution, and articles

14.05 and 38.23 of the Texas Code of Criminal Procedure. He argues that the investigating

officers were not entitled to enter upon the curtilage of the residence in which the

contraband was found and, because of this, even if the officers’ observations would

                                              3
otherwise satisfy the exigent circumstances requirement for a warrantless search, they

were not justified in entering the house and making the arrest.

       The standard of review in regard to a trial court’s rulings on motions to suppress is

a bifurcated one.     Appellate courts afford almost total deference to trial court’s

determinations of historical facts and to decisions involving mixed questions of law and fact

if the resolution of those questions depends upon an evaluation of credibility and

demeanor. In such circumstances, appellate courts review for an abuse of discretion. See

Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). When the standard of review is for an abuse of

discretion, reviewing courts must uphold the trial court’s decision on any proper grounds,

regardless of the basis expressed by the trial court for the ruling. See State v. Ross, 32

S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

       In order for a warrantless search to be justified, the State must show the existence

of probable cause at the time the search was made and the existence of exigent

circumstances that made the procuring of a warrant impracticable. Probable cause to

search exists when reasonably trustworthy facts and circumstances within the knowledge

of the officer on the scene would lead a man of reasonable prudence to believe the

instrumentality of a crime or evidence of a crime will be found. McNairy v. State, 835

S.W.2d 101, 106 (Tex. Crim. App. 1991).

       It is well established that an individual has an expectation of privacy in his home and

that expectation extends to the curtilage surrounding the home. Oliver v. United States,

466 U.S. 170, 180 , 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984). Curtilage is defined

as the area around the home to which the activity of home life extends. Id. 466 U.S. at 182

                                              4
n.12, 104 S.Ct. at 1743 n.12, 80 L.Ed.2d at 226 n.12. Even so, the restriction against

intruding upon one’s curtilage has its limits. For instance, it does not prevent a police

officer from approaching and knocking on the front door of a home. Cornealius v. State,

900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995). That is so because the police have the

same right as any other person to enter onto residential property and walk up to the front

door. Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App. 1989), overruled on other

grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Nored v. State, 875

S.W.2d 392, 396 (Tex. App.–Dallas 1994, pet. ref’d).            Because entry is impliedly

authorized, there exists no reasonable expectation with regard to things observed by those

on the pathway to the house. Bower v. State, 769 S.W.2d at 897. It is true that the

authorization to enter may not exist if the occupant has manifested his intent to restrict

entry to the area. Id. However, there is nothing in this record that shows such a manifest

intent.

          Under this record, Deputy Quintanilla was lawfully on the curtilage of the residence

when he had an unobstructed view of appellant holding a baggy containing illegal crack

cocaine. See Washington v. State, 152 S.W.3d 209, 215 (Tex. App.--Amarillo 2004, no

pet.) (holding no unlawful search resulted from officers going through an opening in a

backyard fence and observing, inter alia, a partially smoked marijuana cigarette lying on

a window sill).

          Even so, an unconsented police entry into a residential unit constititutes a search

under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). McNairy

v. State, 835 S.W.2d at 106. A person normally exhibits an actual, subjective expectation

of privacy in their residence, and society is prepared to recognize this expectation as

                                               5
objectively reasonable. Id. That being so, the officers’ entry into the residence constituted

a search. Under this record, the officers acquired probable cause for a search of the

residence when they had received a tip concerning drug activity at the residence. Deputy

Quintanilla was lawfully on the front porch when he was conducting a knock and talk

procedure. The record supports a conclusion that Quintanilla and Lopez looked through

an unobstructed window and saw appellant holding a plastic baggy containing an off-white,

rock-like substance in his hand that appeared to him to be crack cocaine.

       Having concluded that probable cause for a search existed, it next becomes

necessary to determine whether the record is sufficient to show exigent circumstances

existed that made the obtaining of a search warrant impracticable. See McNairy, 835

S.W.2d at 107. In that connection, the prevention of destruction of evidence may be an

exigent circumstance sufficient to justify a warrantless entry into a residence. Id. To

determine whether sufficient exigent circumstances existed, we review: 1) the degree of

urgency and the amount of time necessary to obtain a warrant; 2) the reasonableness of

the belief that contraband was subject to destruction or removal; 3) the possibility of danger

to the police officers securing the site pending the application for a warrant; 4) the suspect’s

awareness of police presence or surveillance; and 5) the ready destructibility of the

contraband. Id.

       Our review of the record in the light of the above factors shows that the deputies

could reasonably have concluded evidence would be destroyed or removed before they

could obtain a search warrant. The record shows testimony that contemporaneously with

Deputy Jones’ knock on the door of the residence, Deputy Quintanilla observed appellant

running toward a bathroom with the baggy containing what appeared to be crack cocaine

                                               6
in his hands and that the deputy heard flushing noises. There was also testimony that

Delvin Green, who had responded to the knock on the door, slammed the open inner door

shut when he saw the uniformed deputies and fled back into the residence. The deputies

averred they heard flushing noises as they entered the residence and they saw appellant

with his hand in the toilet attempting to dispose of the cocaine.

       The record also shows a sufficient degree of urgency on the officers’ part inasmuch

as it contains testimony that Quintanilla saw appellant running toward the bathroom holding

a baggy containing what appeared to be cocaine at the time that Deputy Jones was

knocking on the door with Delvin Green slamming the inner door and running into the

house. This testimony would support a conclusion that appellant was aware of the

presence of the officers and was about to destroy evidence. Although there was no

testimony concerning the time necessary to obtain a warrant, it was quite sufficient to

support a conclusion about the impracticability of obtaining a warrant prior to the entry.

Suffice it to say that the testimony was amply sufficient to support the trial court’s finding

of exigent circumstances sufficient to support the deputies’ entry into the house.

       Additionally, with regard to Dewanna Taylor’s consent to search of the residence,

although she testified that the consent was given under threat to take her to jail, Deputy

Jones testified that he did not threaten Taylor and the consent was given freely. This

conflict in testimony was resolved by the trial court, as the finder of fact, in favor of the

State. The record is sufficient to support that conclusion.

       In sum, the record does not show an abuse of discretion on the part of the trial judge

in denying the motion to suppress. Accordingly, appellant’s issue is overruled and the

judgment of the trial court is affirmed.

                                              7
                      John T. Boyd
                      Senior Justice

Do not publish.




                  8
