
NO. 07-07-0326-CR


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL D


AUGUST 6, 2007

______________________________


TERESA RACHEL BARBOSA,



			Appellant

v.


THE STATE OF TEXAS, 



			Appellee
_________________________________


FROM THE 181st DISTRICT COURT OF POTTER COUNTY;


NO. 51,982-B; HON. JOHN B. BOARD, PRESIDING

_______________________________


ON MOTION TO DISMISS

__________________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
 Appellant Teresa Rachel Barbosa, by and through her attorney, has filed a motion
to dismiss her appeal because she no longer desires to prosecute it.  Without passing on
the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate
Procedure 42.2(a) and dismiss the appeal.  Having dismissed the appeal at appellant's
request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

							Brian Quinn
						          Chief Justice
Do not publish.


answered, they peered into its uncovered windows and noticed building materials therein.
	Immediately behind the house and enclosing the remainder of the lot stood a fence
built with wooden slats.  In the picture of the fence tendered into evidence, one can see a
sign stating "keep out" hung next to a chain-link gate.  Whether the sign was so located
when Koontz and Gerber arrived at the scene was disputed; appellant and his father
testified that it was there while  Gerber stated that he did not remember seeing it out there. 
Nevertheless, the chain-link gate was not only open but also stood approximately 10 to 12
feet wide.  And, through the opening there lay a well-defined dirt driveway leading to a
building at the back of the lot.  The officers noticed what appeared to be a junkyard or the
like.  So too did they see someone back there working on a truck.  Consequently, the two
policemen walked through the gate down the dirt driveway towards the individual "to talk
to him to see if he lived there . . . [or] if he knew who owned the house . . . ."  The police
later determined that appellant both lived in the building at the back of the lot and operated
an auto mechanic's garage or business of like ilk out of it.  According to appellant, he
"work[ed] on cars, and . . . had some people's cars out there [he] was working on . . . ."  
	As previously mentioned, the officers saw someone working on a truck by the house
and approached the individual.  In the air at the time was the "odor of ether."  Moreover, the
two officers smelled it when they were about 30 to 35 yards from the building and
associated the aroma with the manufacture of methamphetamine.  "[T]he closer we got,"
said one of the two, "the stronger [the smell] became."  At that point, the person they
originally saw "approached and began speaking to" them.  His name was Larry Ward.    
	The officers identified themselves to Ward and told him about the complaint received
from the anonymous caller.  Ward stated that they would have to talk to appellant about the
matter since Ward did not live there.  Appellant then exited the building accompanied by
several other persons.  When he did, one officer approached and "told [him] about the
complaint."  According to the officer, appellant did not respond to it.  Instead, he went "off
on another subject talking about different things, wouldn't really talk . . . about the complaint
. . . ."  Additionally, it was during this exchange that a noise was heard coming from the
"east side of that building."  The other officer then "went around . . . to find out what the deal
was, and . . . found a subject climbing out of the window with a backpack."  Someone
attempting to "sneak out a window" was of concern, according to the policemen.  He further
stated that "[t]here [were] two of us there, . . . at that point, [and] . . . five individuals, so
[they were] outnumbered a little bit . . . ."  
	The person attempting to crawl out of the window was Eric Jope.  The officer
stopped him and began questioning him.  As he did, the officer again smelled ether.  But,
this time the strong odor came from the opened window.  At that point, Jope told the officer
that there was a methamphetamine lab in the building.  As a result of Jope's statement, the
officers detained all of those present.  Then, at least one of the two policemen entered the
building.  Entry was made because the officers knew that the processing of
methamphetamine could result in an explosion or the emission of vapors potentially "fatal
to humans."  So they wanted to assure "that the lab wasn't cooking," that "no one else was
inside destroying evidence," and to search for other persons who might be armed.  During
their entry into the building, the presence of the laboratory described by Jope was
confirmed.     
	Next, Gerber and Koontz secured the building and called for the help of another
officer "who was lab certified."  This individual, named Watts, purportedly had instruments
to assess the dangerousness of the fumes and vapors.  Watts arrived and "went into the
house to check on the lab to take some readings."  By that time, other policemen also
began to appear at the scene.  The decision to obtain a search warrant was made, and
apparently two officers left to get it.  The record discloses that everyone waited outside the
building for the arrival of the search warrant once Watts "determined that nothing was going
to explode, [and] that there weren't dangerous vapors . . . going to be dangerous to us and
other people."  
	An officer returned with the warrant several hours later.  It was executed.  The
premises were searched.  And, contraband was found and seized.   

Issues One, Two, and Three - Illegal Search 
	In his first three issues, appellant argues that the trial court erred in denying his
motion to suppress the evidence of the contraband discovered and seized.   He believes
himself entitled to that relief because the officers "conducted a warrantless search of [his]
home," entered the curtilage of his home without consent," and lacked "probable cause to
search and . . . were not faced with exigent circumstances necessitating a search."  We
overrule the issues.
	Standard of Review
	The standard of review is one of abused discretion, as described in Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), Benitez v. State, 5 S.W.3d 915, 921
(Tex. App.-Amarillo 1999, pet. ref'd), and LaSalle v. State, 923 S.W.2d 819, 823 (Tex.
App.-Amarillo 1996, pet. ref'd).  Furthermore, when no findings of fact are executed as
here, we must 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); Villareal v. State, 935 S.W.2d 134,
138 (Tex. Crim. App. 1996).
 Applicable Authority
	While both our federal and state constitutions protect one against unreasonable
searches and seizures, 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) (stating that the "touchstone of . . .
analysis" has been whether a person has a "constitutionally protected reasonable
expectation of privacy"); Villareal v. State, 935 S.W.2d at 138 (stating that the purpose of
both the Fourth Amendment of the United States Constitution and art. I, §9 of the Texas
Constitution is to safeguard an individual's legitimate expectation of privacy from
unreasonable governmental intrusions).  If there is no such expectation, there is no
constitutional protection.  See 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. 
	Next, 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 1741-42, 80 L.Ed.2d at 224.  So too
is it indisputable that this expectation extends to the curtilage surrounding the home. (1)  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.), cert.
denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (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).  Indeed, sidewalks, pathways, common entrances or similar passageways
impliedly authorize the public to enter.  Bower v. State, 769 S.W.2d at 897, quoting
Lorenzana v. Superior Court, 9 Cal. 3d 626, 511 P.2d 33 (1973).  And, because entry is
impliedly authorized, there exists no reasonable expectation of privacy with regard to the
things observed by those on the pathway. Id. Yet, neither this authorization to enter or
prerogative to observe may exist if the occupant made manifest his intent to restrict access
to the area.  Id.; see Nored v. State, 875 S.W.2d at 396-97 (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).
	Of  further note is that 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. 1975), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 179 (1976), 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. 
Again, no one answered.  At that point the two 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 effort to contact the occupant.  To arrive
at the back door, the officer had to pass through a fence.  He did so and spotted appellant
leave the house, observed him (the officer), dropped an object, and thereafter re-entered
the abode.  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 that the officer's view of the back yard 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. 
	One other case is of import to our resolution of the case at bar.  Though not
involving an attempt to contact appellant via the back door of his house, Nored provides
guidance in assessing whether an occupant has a reasonable expectation of privacy. 
There, several officers went to the appellant's apartment to talk to the occupants about a
stolen bicycle.  They discovered the apartment surrounded by an eight-foot high privacy
fence.  Yet, the fence contained a gate which was unlocked and could be opened by
pushing down on the handle.  One of the two officers not only opened the gate and walked
through it but also walked across the patio and up to the front door.  Because the gate was
not locked, because no signs cautioned against trespassing or otherwise informed the
public to keep out, and because the path taken by the officer was the usual one used to
approach the door, the appellate court held that no reasonable expectation of privacy was
violated when the officers passed through the gate towards the door of the apartment. 
Nored v. State, 875 S.W.2d at 396-97.
	From Nored, Atkins,  Long, and the other precedent mentioned, we learn that an
officer can enter the curtilage of a house in effort to contact its occupants.  So too may he
open gates in a privacy fence to fulfill that purpose, so long as 1) the occupant has not
manifested his intent to prohibit or restrict their access by locking the gate or by posting
signs informing them that they are not invited or 2) the officer does not deviate from the
normal path of traffic. With this said, we turn to the case before us.          
 Application of Authority
	As illustrated by his brief, appellant complains of the officers' initial entry through the
fence and into the area behind it.  He believes that constituted an unreasonable search in
violation of his constitutional rights.  Yet, evidence shows that the officers appeared at the
location in response to an anonymous tip about the manufacture of methamphetamine. 
They sought to investigate the matter and inform the occupant of the abode about the
complaint.  When no one responded to their knock on the front door, they decided to go
around back in effort to contact the resident.  To do so, they had to pass through what one
could consider a privacy fence.  Nevertheless, their passage was not physically restricted
because next to the house was a rather large, open gate. 
	Though some evidence indicates that a sign informing third parties to "keep out" was
posted by the gate, question arose as to whether it was in existence when the officers
appeared at the site.  The officers informed the trial court that they did not see it.  Given
this, the trial court was free, under Guzman, to determine as a matter of fact whether or not
the sign actually existed at the time the officers passed through the gate.  And, to the extent
that the trial court denied the motion to suppress and entered no findings of fact, we must
not only view the evidence in a light most favorable to that decision but also presume that
it concluded that no such sign existed.  See State v. Ross, 32 S.W.3d at 855 (stating that
when no findings of fact are executed, the reviewing court must assume that the trial court
made explicit findings to support its ruling as long as the implicit finding enjoys evidentiary
support).  
	Yet, irrespective of whether such a sign actually existed, it is undisputed that the
chain-link gate was open and through it appeared a well-defined path of travel.  Also
undisputed is that this path, upon which the officers walked, led to the area wherein
appellant operated a business working on cars belonging to third parties.  One can
reasonably infer that those members of the public wishing to engage appellant's services
not only had but also were authorized to pass through the gate and travel down the dirt
driveway to his place of work. (2)  Indeed, nothing appears of record suggesting that appellant
required them to leave their vehicle outside the gate and that only appellant or his designee
was entitled to drive the vehicle into the lot.  This is of import because, as previously stated,
appellant had the burden to establish the existence of a supposed expectation of privacy. 
   
	Though not identical to those in Nored, Long, and Atkins, these circumstances lead
to the same conclusion reached in those cases.  The time of day, the presence of no one
outside the fence with whom the officers could speak, the large open gate, the presence
of a well-defined dirt driveway leading through the gate to a building behind the empty
house, appellant's operation (behind the gate) of a business involving vehicles owned by
third parties, the reasonable inference not only that third parties passed through the gates
to obtain appellant's mechanical services but also that they were authorized to do so during
normal business hours, the lack of any evidence illustrating that only appellant or certain
designated individuals could drive their cars through the gate, the presence of a third party
actually working on his vehicle inside the fenced lot, and the officers confining themselves
to the well-defined dirt driveway are indicia upon which a trial court could reasonably find
that appellant had no legitimate expectation of privacy in the dirt driveway behind the fence
and that which could be perceived from it.  Thus, no search occurred when the officers
passed through the gate while utilizing that path and smelled the ether.  Nor can we say
that the trial court abused its discretion in refusing to find that the entry violated appellant's
constitutional rights. (3) 
Remaining Issues - Ineffective Assistance of Counsel
	In his remaining issues, appellant contends that his counsel was ineffective.  His
argument is premised upon the belief that counsel waived, at trial, his complaint about the
legitimacy of the search and seizures discussed above.  Because we conclude that the trial
court did not err in denying the motion to suppress, we find that any purported waiver of the
complaint at trial did not prejudice appellant.  Accordingly, these issues are overruled as
well.
	The judgment of the trial court is affirmed.

							Brian Quinn
						   	   Justice
Publish.











1. Curtilage is defined as the area around the home to which the activity of home life extends. Oliver
v. United States,  466 U.S. 170, 182 n.12, 104 S.Ct. 1735, 1743 n.12, 80 L.Ed.2d 214, 226 n.12 (1984);
Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.-Dallas 1993, pet. ref'd).
2. How viable can a business be if those to whom the business owner caters were barred from coming
onto or into the place where business is conducted?
3. As mentioned earlier in this opinion, we read appellant to be attacking the initial entry of the officers
into the lot behind the fence.  To the extent he may also question the legitimacy of the ensuing detention and
search, we would still find no error in the trial court's decision.  That the officers smelled ether in the air, that
they associated the smell with methamphetamine, that appellant gave them evasive answers, that Jope was
seen escaping through the window, that the strong odor of ether came from the window, and that Jope
volunteered information about the presence of the methamphetamine laboratory inside the building were
circumstances upon which a trial court could rationally find that the officers had reasonable suspicion to
temporarily detain and probable cause to arrest appellant.  Furthermore, the officer's knowledge about the
dangerousness of a meth lab and the fumes it emanated were evidence of exigent circumstances warranting
intrusion into the building, or a trial court could so have reasonably held. McNairy v. State, 835 S.W.2d 101,
107 (Tex. Crim. App. 1991) (holding that exigent circumstances include factors pointing to some danger to
officers or victims). 
