                                     NO. 07-03-0122-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                DECEMBER 14, 2004
                          ______________________________

                                   DARYL M. WASHINGTON,

                                                         Appellant

                                             v.

                                   THE STATE OF TEXAS,

                                                 Appellee
                        _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2002-439,684; HON. WILLIAM R. SHAVER, PRESIDING
                        _______________________________

                                      Opinion
                          _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant Daryl M. Washington, a previously convicted felon, appeals his conviction

for unlawfully possessing a firearm. He complains, through nine issues, of charge error,

ineffective assistance of counsel, and the failure to grant his motion to suppress. We affirm

the judgment of the trial court.

                                        Background

       On August 22, 2001, former Officer Ron McGlone and Lieutenant Billy Timms, of the

Slaton Police Department, responded to a complaint from the manager of the Housing
Authority about several persons smoking marijuana outside of a residence.1 When the

officers arrived, no one was seen in front of the house. So the officers drove towards the

back through an alley, saw individuals in the backyard, exited their vehicle, saw an opening

in the fence and approached the group. While doing so, they noticed that one or more of

the individuals appeared nervous. Also noticed was a partially smoked marijuana cigarette

laying on a window sill, appellant standing closest to the cigarette, and a bulge in

appellant’s right front pocket. When initially asked what was in his pocket, appellant failed

to respond. Then, an officer touched the bulge and asked again. Appellant replied that it

was a handgun.

        At trial, appellant argued that the gun belonged to his grandfather who was visiting

due to the death of appellant’s aunt. His grandfather allegedly had a fascination with guns

and was also suffering from dementia. Appellant allegedly picked up the gun because he

saw it laying on a coffee table, knew that his mother’s grandchildren would be home from

school soon, and was worried that they would come upon it.

                                 Issues 1, 2, 3, and 4 - Charge Error

        In his first four issues, appellant complains that the trial court erred in instructing the

jury about the defense of necessity. That is, when including the defense in the charge, the

trial court stated that appellant had the burden to prove, by a preponderance of the

evidence, that he acted out of necessity. Though no one objected to that aspect of the

charge, the State nonetheless concedes on appeal that the instruction was erroneous. See

Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.–Austin 2002, pet. ref’d) (holding that



        1
          The reside nce was that of app ellant’s mo ther. A ppe llant was living with his mo ther as w ere five of
her g rand childre n.

                                                        2
necessity is a statutory defense, and if the defendant presents some evidence on each

element of the defense, then the burden shifts to the State to disprove the defense beyond

a reasonable doubt). However, it further argues that because no one objected, the mistake

cannot result in reversal unless it caused appellant to suffer egregious harm. See Degrate

v. State, 86 S.W.3d 751, 754 (Tex. App.–Waco 2002, pet. ref’d) (describing egregious harm

as that which affects the very basis of the case, deprives the defendant of a valuable right,

or vitally affects a defensive theory). We agree with the State and overrule the issue.

       It is a defense to prosecution that the conduct in question was justified. TEX . PEN .

CODE ANN . §9.02 (Vernon 2003).         Additionally, conduct is justified when the actor

reasonably believes that it is immediately necessary to avoid imminent harm. Id. §9.22(1).

Next, for the harm to be imminent it must be impending, not pending; that is, it must be on

the “point of happening, not about to happen.” Smith v. State, 874 S.W.2d 269, 272-73

(Tex. App.–Houston [14th Dist.] 1994, pet. ref’d). There must exist an emergency situation

requiring immediate action or a split second decision to avoid the harm. Id.; accord,

Stefanoff v. State, 78 S.W.3d at 501. And, whether the situation is of that ilk is determined

from the standpoint of the accused. Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.–

Fort Worth 2001, pet. ref’d); Gonzalez v. State, 2 S.W.3d 600, 605 (Tex. App.–Texarkana

1999, pet. ref’d). Yet, the defendant’s belief that his conduct was immediately necessary

may be deemed unreasonable as a matter of law if the undisputed facts demonstrate a

complete absence of immediate necessity or imminent harm. Arnwine v. State, 20 S.W.3d

155, 159 (Tex. App.–Texarkana 2000, no pet.); Brazelton v. State, 947 S.W.2d 644, 648-49

(Tex. App.–Fort Worth 1997, no pet.).




                                             3
        Appellant alleges that the record contained sufficient evidence to warrant the charge

on necessity because children lived in the home and were to return home from school “any

minute.” Because they often brought friends home with them, he perceived the need to

remove the gun from their reach to avoid potential injury. Yet, nothing in the record

suggests, much less illustrates, that any of the children were home or in the house at the

time appellant saw the weapon. Nor is there evidence suggesting that appellant thought

that any children were at home. Again, he simply believed that they would be arriving “at

any minute.”2

        We hold, as a matter of law, that this evidence, when viewed in a light most

favorable to appellant and from his perspective, does not indicate that there existed some

harm that was on the point of occurring and which necessitated a split second decision.

Nor does it arise to a level of something about to happen for several contingencies had yet

to transpire. Not only was there a need for a child to arrive home, but also the gun had to

have remained at its location and the child had to have ventured into the room wherein it

lay and perceived it. Given these contingencies, the evidence permits one to reasonably

infer no more than that appellant feared the possibility of or potential for harm and acted

in response thereto. That, however, falls short of the imminency contemplated under the

defense of necessity. See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.–Beaumont

1998, no pet.) (holding that fear induced by one’s presence in a high crime area is not

sufficient evidence of an immediate necessity to avoid imminent harm so as to justify



        2
          To the extent that one witness testified that she saw a child ap proaching the house, we find this
evidence of little import for several reasons. First, it does not show that the child was in the house or
anyw here near the weapon. Nor does it show that appellant saw the child or was aware of his or her presence
at the time. And, given that we must view the evidence from appellant’s perspective, what others saw but he
did not can ha rdly be considered a s influencing his p erce ption of the s ituation .

                                                     4
unlawfully carrying a handgun). Consequently, no evidence existed to entitle appellant to

an instruction on the defense in the first place. And, because he was not entitled to such

an instruction, we cannot say that he was egregiously harmed when the trial court told the

jury that he had the burden of proving the defense.3

                        Issues 5 and 6 - Ineffective Assistance of Counsel

        In his fifth and sixth issues, appellant asserts that his counsel was ineffective in

failing to object to the misstatement in the jury charge about which we discussed in the first

four issues. Yet, having determined that appellant was not entitled to the charge, we

cannot say that his attorney erred in failing to object to its wording. See Young v. State,

991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding that because the defendant was not

entitled to an instruction on the defense of necessity, counsel was not ineffective in failing

to request one). So, the issues are overruled.

                                  Issues 7, 8 & 9 - Motion to Suppress

        In his final three issues, appellant attacks the trial court’s decision to deny his motion

to suppress evidence. We overrule them as well.

        Below, at the hearing to suppress, appellant argued that the evidence of the firearm

was subject to suppression because the officers had no basis to temporarily detain him and

search his person. Here, he contends that suppression was required since the officers had

no basis to initially enter the premises. Nothing is said, in his brief, about the temporary

detention and Terry4 frisk other than the comment that whether the officers had “probable



        3
          Indeed, it could be said that appellant had an opportunity for a windfall to which the law did not
actually afford him, and in the w ords of J. P. Drisk ill, “that’s the luck of the dra w.”

        4
            Terry v. Oh io, 392 U .S. 1, 88 S .Ct. 1868 , 20 L.Ed .2d 889 (1968).

                                                          5
cause to search, or even reasonable suspicion to detain, is irrelevant.” Nor does he

mention the authority (or lack thereof) of the officers to initially enter upon the property as

grounds warranting exclusion of the evidence in his written motion to suppress. Given this,

the grounds underlying his complaint at trial do not comport with those uttered on appeal.

Thus, his complaint about the trial court’s refusal to suppress the evidence was waived.

Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (holding that if trial objections

do not comport with arguments on appeal, error is not preserved).

        Nevertheless, and assuming the grounds for error were preserved, we review the

trial court’s ruling on the motion to suppress under the standard announced in Guzman v.

State, 955 S.W.2d 85 (Tex. Crim. App. 1997). In doing so, we give almost total deference

to the trial court’s findings of historical fact and review de novo its application of the law to

the facts. Id. at 89. And, when no findings of fact are executed, as here, we must also

view the evidence in the light most favorable to the trial court’s ruling. State v. Ross, 32

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

       Both our federal and state constitutions protect one against unreasonable searches

and seizures, but that protection exists only if the individual has a reasonable expectation

of privacy in the thing searched. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct.

1735, 1740-41, 80 L.Ed.2d 214, 223 (1984); Villareal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996). If there is no such expectation, there is no constitutional protection.

Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.–Dallas 1993, pet. ref’d) (stating that

because there is no reasonable expectation of privacy attaching to an open field, no Fourth

Amendment protection extends to such an area). Furthermore, the burden lies with the

accused to establish this expectation. Villareal v. State, 935 S.W.2d at 138.


                                               6
        It is beyond dispute that one has such an expectation of privacy in his home. Oliver

v. United States, 466 U.S. at 178, 104 S.Ct. at 1741, 80 L.Ed.2d at 224. So too is it

indisputable that this expectation extends to the curtilage surrounding the home.5 Yet, the

restriction against intruding upon one’s curtilage has its limits. For instance, it does not

prevent a police officer from approaching and knocking upon the front door of a home.

Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995). This 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, 895 S.W.2d 681 (Tex. Crim. App. 1991);

Watts v. State, 56 S.W.3d 694, 699-700 (Tex. App.–Houston [14th Dist.] 2001), reversed

on other grounds, 99 S.W.3d 604 (Tex. Crim. App. 2003); 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. However, the authorization to enter may not

exist if the occupant made manifest his intent to restrict access to the area. Id.; Nored v.

State, 875 S.W.2d at 397 (stating that if the person in possession of the property has not

made express orders prohibiting any form of trespass, and if the police follow the usual

path to the front door, then the police have not violated the person’s Fourth Amendment

rights).

        There is also precedent extending the authority to approach one’s door and knock

to include the back door. For instance, in Long v. State, 532 S.W.2d 591 (Tex. Crim. App.


        5
         Curtilage is defined a s the area arou nd the ho me to which the activity of hom e life extend s. Oliver
v. United S tates, 466 U.S. 170, 182 n.12, 104 S.Ct. 1735, 1743 n.12, 80 L .Ed.2d 214, 22 6 n.12 (1984);
Ro salez v. State, 875 S.W .2d 705, 713 (T ex. A pp.– Da llas 19 93, pet. ref’d).

                                                       7
1975), the sheriff first went to the front door to inquire about private aircraft flights in the

area. When no one answered the knock, he and his deputy walked around to the back

door and knocked. When no one answered again, they decided to leave. Walking back

around the house, they felt a blast of hot air and smelled marijuana coming from an open

window. Furthermore, the window blinds were also open, and the officers looked into the

room and saw marijuana on the floor and stacked around the walls. The Court of Criminal

Appeals affirmed the trial court’s refusal to suppress the evidence discovered because the

acts described did not constitute a search. Id. at 594-95.

       A like conclusion was reached in Atkins v. State, 882 S.W.2d 910 (Tex. App.–

Houston [1st Dist.] 1994, pet. ref’d). There, two officers proceeded to the appellant’s

residence to investigate an anonymous tip. One went to the front door and the other to the

back door in an effort to contact the occupant. To arrive at the back door, the officer had

to pass through a fence, which he did. At that time, appellant left the house, observed the

officer, dropped an object, and thereafter re-entered the house. The officer picked the

object up, recognized it as contraband, and entered the house to arrest appellant. Because

both officers were attempting to contact the occupant and nothing indicated the officer’s

view of the backyard was blocked by the fence, “the officer’s viewing of appellant’s conduct

was not a search” according to the court of appeals. Id. at 913.

       Thus, an officer can enter the curtilage of a house in an effort to contact its

occupants. Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.–Amarillo 2004, pet. ref’d).

This is true when the occupant has not manifested his intent to restrict access by locking

a gate or posting signs informing the officer he is not invited or the officer does not deviate

from the normal path of traffic. Id.


                                               8
       Here, the officers were responding to a complaint by the manager of the Housing

Authority (which operated the property) about men smoking marijuana on a front porch of

a particular house. When the officers arrived, they saw no one in the front of the house and

proceeded to drive around the back through an alley. There, they could see a group in the

backyard. So the officers disembarked from their vehicle, walked through “an opening in

the fence,” and approached the group. There was no gate prohibiting their entrance; nor

was there evidence of a sign warning them against trespassing. And, to the extent that the

fence itself could be perceived as a barrier suggesting the desire for privacy, it did not

prevent the officers from seeing individuals in the backyard and it had an opening large

enough for people to venture through.

       In view of the foregoing, the situation before us is akin to those in Long and Atkins.

Any interests the occupants had in the privacy of their backyard was lost given the officers’

authority to contact them about the complaint, their visibility in the backyard, and the

opening in the fence. Thus, we cannot say that the officers violated either the constitutional

or statutory rights of appellant when they entered the premises under these circumstances.



       Accordingly, the judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                    Justice

Publish.




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