author: LESLIE BROCK YATES, Justice.

text:
    Joshua Lauren ENGLISH, Appellant v. The STATE of Texas, Appellee.
    Nos. 14-04-00053-CR, 14-04-00054-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 11, 2005.

      Cynthia Russell Henley, Houston, TX, for appellant.
    Amanda Joy Peters, Houston, TX, for appellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant Joshua Lauren English was convicted of aggravated assault and criminal mischief. In six issues, appellant argues the evidence is legally insufficient to support the deadly weapon element of aggravated assault, the evidence is legally and factually insufficient to support a conviction for criminal mischief with a pecuniary loss of at least $1,500, the trial court erred by not giving a lesser-included-offense instruction, and the trial court erred in overruling his motion for mistrial. We affirm in part and reverse in part.

Background

Christopher Eugene Green was driving home after work and observed a black Cadillac drive up quickly behind him. Appellant got out of the Cadillac yelling and pointing at Green. He then hit Green’s door twice with his fist, denting the door. Green got out of his truck, and he and appellant fought. Appellant struck Green on the side of his head, and Green then struck appellant in the face. Appellant returned to his car, and Green left in his truck.

An erratic car chase ensued, and Green was able to temporarily elude appellant. Green stopped and got out of his car to talk to a witness, Shane Mudd. At that time, appellant reappeared. Appellant stopped his car and walked toward Green with an aluminum baseball bat. Green held up a metal steering wheel lock in defense, and appellant walked back to his car. At that time, a truck containing six of appellant’s friends drove up, and appellant returned with his bat. Green tried to shut himself in his truck; however, appellant began striking Green on his arms and legs with the bat before Green could get away. Appellant also struck Green’s truck with the bat, breaking a light and denting the hood and fender. Before walking away, appellant swung the bat and hit Green in the forehead. Green suffered bruises, swelling, a concussion, and a laceration requiring stitches in his head. A jury sentenced appellant to four years’ imprisonment for aggravated assault, and the trial judge sentenced appellant to fifteen months in a state jail facility for criminal mischief. This appeal followed.

Sufficiency of the Evidence

Deadly Weapon Finding

In his first issue in the aggravated assault appeal, appellant argues that the evidence is legally insufficient to support the jury’s conclusion that the baseball bat was used as a deadly weapon. In evaluating a legal-sufficiency claim, the reviewing court views the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). Rather than asking whether we believe the evidence at trial established guilt beyond a reasonable doubt, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wesbrook, 29 S.W.3d at 111.

The Texas Penal Code defines a “deadly weapon” as “anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” or anything that could be used or is intended to be used to cause the same. Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp.2004-2005). A baseball bat is not a deadly weapon per se because it is not made for the purpose of inflicting death or serious bodily injury, although it may be classified as such when used in a manner capable of inflicting death or serious bodily injury. See In re S.B., 117 S.W.3d 443, 446 (Tex.App.-Fort Worth 2003, no pet.); B.I. v. State, No. 14-98-00697-CR, 1999 WL 718044, at *1 (Tex. App.-Houston [14th Dist.] Sept. 16, 1999, no pet.) (not designated for publication).

Appellant contends that because he used the bat in the manner he intended, to strike but not to kill or seriously injure, and because his use did not cause death or serious bodily injury, the evidence is legally insufficient to support a finding that the bat was used as a deadly weapon. However, in Parrish v. State, 647 S.W.2d 8, 11 (Tex.App.-Houston [14th Dist.] 1982, no pet.), this court explained that while the wounds inflicted can be considered, it is not necessary that the weapon inflict any injury before it is declared a deadly weapon. Furthermore, in Bailey v. State, 38 S.W.3d 157, 158-59 (Tex.Crim.App.2001), the Court of Criminal Appeals explained that the plain language of the Texas Penal Code does not require that the actor intend death or serious bodily injury, only that the actor intends to use the object in a manner that renders it capable of causing death or serious bodily injury.

Here, appellant swung the aluminum baseball bat at Green’s head using two hands and full force. The resulting blow caused pain, a large gash requiring seven stitches, a scar, bruising, swelling, and a concussion. Green also testified that he was extremely afraid and that appellant told Green he intended to kill him. This evidence is sufficient to support a conclusion by a rational finder of fact that the baseball bat as used by appellant was capable of causing death or serious bodily injury and thus was a deadly weapon. Appellant’s first issue in the aggravated assault appeal is overruled.

Criminal Mischief

In his first issue in the criminal mischief appeal, appellant asserts the evidence is legally insufficient to allow a rational trier of fact to find that the damage to Green’s car inflicted by the bat totaled $1,500 or more but less than $20,000. A person commits the offense of criminal mischief if, without the effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner. Tex. Penal Code Ann. § 28.03(a) (Vernon Supp.2004-2005). The amount of pecuniary loss determines the punishment range for the offense. See id. § 28.03(b). If the property is damaged, the amount of pecuniary damage will be “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.” Id. § 28.06(b) (Vernon 2003). If the amount of pecuniary loss is $1,500 or more but less than $20,000, the offense is a state jail felony. Id. § 28.03(b)(4)(A) (Vernon Supp. 2004-2005). If the pecuniary loss is $50 or more but less than $500, the offense is a class B misdemeanor. Id. § 28.03(b)(2). The damaged property need not be repaired. Elomary v. State, 796 S.W.2d 191, 193 (Tex.Crim.App.1990). However, “an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repair.” Sebree v. State, 695 S.W.2d 303, 305 (Tex.App.-Houston [1st Dist.] 1985, no pet.).

Appellant argues the repair estimate was legally insufficient to sustain the verdict on the total amount of damage caused by appellant’s baseball bat because the amount of the estimate was not verified by an expert. At trial, the State introduced an estimate from Fred Haas Toyota, which estimated the damage to Green’s truck to be $2,134.41. Green testified that he took the truck to that same dealership and paid $50 of the amount himself, with the insurance company paying the balance. However, Green also admitted that he did not know how much the insurance company actually paid for the repair work. The State did not use expert testimony to verify the estimated amount of pecuniary damage or show evidence of a final cost.

A complainant’s testimony regarding an estimate of the damage, without more, will not be sufficient to establish the cost of repair in a criminal mischief case. Sebree, 695 S.W.2d at 305. However, an insurance adjuster’s expert testimony concerning an estimate is enough to establish the fair market value of the repair cost to satisfy section 28.06(b). Elomary, 796 S.W.2d at 194. Also, if the complainant is qualified as an expert, the complainant’s testimony regarding an estimate can establish the cost of repair under section 28.06(b). Crowder v. State, 14-94-00396-CR, 1996 WL 255880, at *2-3 (Tex.App.-Houston [14th Dist.] May 16, 1996, pet. ref'd) (not designated for publication).

In this case, the record does not reveal Green has expertise that would qualify him to estimate the amount of damage to his car, nor does the State claim Green has such knowledge. Green’s knowledge of the cost of repair came only from what he saw on the estimate. Therefore, the estimate from Fred Haas Toyota is insufficient to establish that the damage was equal to or greater than $1,500. Appellant’s first issue in the criminal mischief appeal is sustained.

A court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense if (1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense or one of the parties asked for but was denied such an instruction. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999). Appellant asked for and was denied an instruction on the lesser included offense of criminal mischief with a pecuniary loss between $50 and $500. Green testified that he paid a $50 insurance deductible in order to have his truck repaired; thus, the evidence is sufficient to support a conviction for criminal mischief in the amount of $50 but less than $500. Accordingly, we reform appellant’s judgment of conviction for felony criminal mischief to class B misdemeanor criminal mischief.

In appellant’s second issue in the criminal mischief appeal, appellant argues that the evidence is factually insufficient to support his conviction for criminal mischief as a state jail felony but concedes it is sufficient to support his conviction as a class B misdemeanor. Because we have already concluded the evidence is legally insufficient to support appellant’s conviction for criminal mischief with a pecuniary loss of at least $1,500 and because appellant concedes that the evidence is factually sufficient to support a conviction for criminal mischief with a pecuniary loss of at least $50, we need not address appellant’s second issue in the criminal mischief appeal.

Ruling on Mistrial

In his second issue of the aggravated assault appeal and the fourth issue of the criminal mischief appeal, appellant contends that the trial court erred by not granting a mistrial based on a comment made by a venireperson during jury selection.

During voir dire, the trial court questioned venireperson Ricardo Gamez, who stated he could not be a fair juror because of some past personal experience “and also possibly I have handled [appellant].” The trial court stated they would discuss the fact that Gamez had “worked with” appellant later at the bench and then continued with the selection process. No objection was made at that time by appellant, and appellant made no request for a conference outside the jury’s hearing. At the completion of voir dire, the trial court interviewed Gamez at a bench conference outside the hearing of the panel. Gamez revealed he was a Harris County Sheriffs Deputy who worked at a jail, and he believed he had “handled” the appellant while he was in jail. The judge dismissed Gamez. Appellant then moved for a mistrial. The trial court noted that it thought the motion was untimely. Appellant’s counsel stated that he had not objected at the time Gamez made the statement because he wanted to avoid tainting the jury further. The court ultimately overruled the objection and gave a curative instruction to the remaining jurors saying they should disregard Gamez’s comment.

Appellant contends both that his objection was timely because it was made before the end of jury selection and that even had the objection been made immediately after Gamez’s statement, the effect on the panel would not have been different. To preserve a complaint for appellate review, there must have been a timely request, objection, or motion at trial. Tex.R.App. P. 33.1(a). In Nelson v. State, 661 S.W.2d 122, 124 (Tex.Crim.App.1983), the appellant made a motion for both a mistrial and curative statement to rectify comments made by the trial judge during voir dire. However, the appellant waited until the court recessed into chambers before objecting. Id. Though voir dire was still ongoing, the Court of Criminal Appeals found the objection had been waived. Id.

In this case, the comment by Gamez was made very early during voir dire, before either the State or defense had even begun their questioning. However, the objection was not made until after the entire voir dire proceedings had concluded. Therefore, as in Nelson, the objection in this case was waived.

Furthermore, we review a trial court’s overruling of a motion for mistrial under an abuse-of-discretion standard, and we must uphold that ruling if it is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). Even if appellant had preserved this issue for review, any harm arising out of Gamez’s comment was cured by the trial court’s instruction to disregard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003). Accordingly, the trial court did not abuse its discretion in overruling appellant’s motion for mistrial. Appellant’s second issue in the aggravated assault appeal and fourth issue in the criminal mischief appeal are overruled.

Conclusion

We affirm the judgment of the trial court for appellant’s aggravated assault conviction. We reform the trial court’s judgment for felony criminal mischief to the lesser included offense of class B misdemeanor criminal mischief and remand the criminal mischief case to the trial court for a new hearing on punishment.

      . Because we sustain appellant’s first issue in the criminal mischief appeal and reform the judgment to reflect a conviction for class B misdemeanor criminal mischief, we need not address appellant’s third issue in the criminal mischief appeal in which he alleges that the trial court erred in not including a lesser-included-offense instruction. For the same reasons, we also need not address appellant’s argument that the evidence is legally insufficient to prove that over $1,500 of damage was caused solely by the bat — as stated in the jury charge — when some of the damage to Green’s vehicle was caused by appellant’s fists. Appellant does not argue that the evidence is legally insufficient to sustain a conviction for criminal mischief with a pecuniary loss of $50 or more.


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice.

license: Public Domain

text:
    Jonathan Kirk DUHIG, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-01076-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 16, 2005.

      Allen C. Isbell, Houston, TX, for appellant.
    Scott A. Durfee, Houston, TX, for appel-lee.
    Panel consists of Justices ANDERSON, FROST and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

After the trial court denied his pre-trial motion to suppress, appellant, Jonathan Kirk Duhig, pleaded guilty to possession with intent to deliver methamphetamine. The trial court sentenced appellant to nine years and eleven months’ confinement. In four issues, appellant contends the trial court erred by denying his motion to suppress. We affirm.

I. BACKGROUND

At the motion to suppress hearing, the trial court heard testimony from Ron Morrison, a narcotics deputy with the Harris County Sheriffs Department. Deputy Morrison testified that on March 18, 2003, during a traffic stop, a passenger in the vehicle informed him that there were possibly narcotics at 12011 Lennington Street in Houston. At approximately 3:00 a.m., the passenger showed Deputy Morrison the house. After the rest of Deputy Morrison’s “hot spot” team arrived, he and five other deputies decided to do a “knock and talk,” which is an attempt to contact the owner of the house. Deputy Morrison knocked on the front door approximately ten times but received no answer although he heard movement and noticed a television was on in a bedroom. The top portion of the front door had a crescent-shaped window. Using a flash light, Deputy Morrison, who is six feet, three inches tall looked through the window while standing on his tiptoes. He saw a jar of what appeared to be marijuana, a digital scale, and a pipe or “bong” on a coffee table in the living room.

The deputies then decided to go to the back of the house to see if anyone was in the house. It is disputed whether they had unrestricted access to the backyard. Deputy Morrison testified they did not have to cross or pass through any fences in order to reach the backyard. In contrast, appellant presented evidence that a gated fence blocked access to the side yard, and another gated fence blocked access from the side yard to the backyard. In any event, the deputies approached the back of the house. A glass patio door was open approximately six inches. Deputy Morrison peered through the glass door using his flashlight and had a clearer view of the coffee table in the living room. He also smelled marijuana coming from an air conditioning unit and observed a marijuana-growing lab through a broken window partially covered with cardboard.

According to Deputy Morrison, the open patio door gave the deputies concern that a drug-related home invasion might be occurring. They decided to enter the house out of concern for the residents. They found a woman hiding in one room and appellant hiding in another room. While searching for other possible perpetrators, they saw the marijuana-growing lab they had earlier observed from the backyard. The deputies placed appellant and the woman in a patrol car.

The other deputies remained at the house while Deputy Morrison obtained a search warrant. A magistrate issued the search warrant based upon Deputy Morrison’s affidavit outlining his observation through the front door window and his observations while outside the back door. The deputies found the methamphetamine forming the basis of appellant’s conviction after Deputy Morrison obtained the search warrant. Appellant filed a motion to suppress contending the search warrant was invalid. The trial court denied the motion to suppress and allowed appellant to appeal its ruling.

II. Motion to SuppRess

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard, giving almost total deference to the trial court’s determination of historical facts supported by the record, and reviewing de novo the trial court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim. App.1997); Marsh v. State, 140 S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2004, pet. ref d). In a motion to suppress hearing, the trial court is the sole trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); Marsh, 140 S.W.3d at 905. The trial court is free to believe or disbelieve all or any part of a witness’s testimony, even if the testimony is uncontroverted. Ross, 32 S.W.3d at 855; Marsh, 140 S.W.3d at 905.

Appellant contends the trial court erred by denying his motion to suppress because the search warrant used to seize the methamphetamine was invalid. In his first three issues, appellant asserts that Deputy Morrison’s affidavit, upon which the search warrant was based, contained information obtained in violation of the Fourth Amendment and misrepresentations because (1) Deputy Morrison conducted an impermissible, warrantless search by looking through the front door window, (2) the deputies trespassed or conducted an impermissible, warrantless search by entering appellant’s backyard and approaching the back door, and (3) the deputies entered his house without a warrant. In his fourth issue, appellant contends in general that the search warrant was invalid for the reasons set forth in his first three issues.

A. Observation through the Front Door Window

First, appellant contends that Deputy Morrison conducted an impermissible, warrantless search when he looked through the window on appellant’s front door and observed marijuana and drug paraphernalia on the coffee table. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. A search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000); Wilson v. State, 99 S.W.3d 767, 769 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). For Fourth Amendment purposes, a “search” does not occur, even when the explicitly protected area of a house is concerned, unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable. Porter v. State, 93 S.W.3d 342, 346 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)).

Appellant argues that the officers violated his subjective expectation of privacy by approaching his front door and looking through the window. We disagree. Absent express orders from a person in possession of property not to trespass, anyone, including a law enforcement officer or common citizen, has the right to approach the front door of a residence and knock on the door. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex.Crim.App.1995); 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, 685 (Tex.Crim.App.1991); Porter, 93 S.W.3d at 345. Here, Deputy Morrison’s uncontroverted testimony was that the deputies approached the front door to do a “knock and talk.” The trial court made a finding of fact that the deputies went to the house to do a “knock and talk,” and we give deference to that finding. See Carmouche, 10 S.W.3d at 327. There is no evidence of a sign or any other directives prohibiting entry onto the property. Thus, the deputies had a right to approach the front door to contact the occupants.

While rightfully at the front door, the deputies were free to observe evidence in “plain view.” What a person knowingly exposes to the public, even in his own home, is not a search subject to Fourth Amendment protection. Bower, 769 S.W.2d at 897 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); Long v. State, 532 S.W.2d 591, 594 (Tex.Crim.App.1975). A search implies a prying into hidden places for that which is concealed. Long, 532 S.W.2d at 594. The observation of property in “plain view” involves no invasion of privacy. Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000); Swarb v. State, 125 S.W.3d 672, 680 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d); see Long, 532 S.W.2d at 594.

Nonetheless, appellant suggests that Deputy Morrison’s observation through the front door window was not a “plain view” observation based on the nature of the window. Appellant asserts that the window was decorative only and its purpose was to let in light without allowing anyone to look inside the house. However, the window was not made of opaque glass and had no drapes or other covering to prevent anyone from looking through it. See Bower, 769 S.W.2d at 897-98 (finding officers did not conduct a search when they approached defendants’s front door by the only means of access — a driveway— and observed stolen items through uncur-tained windows in the garage); Long, 532 S.W.2d at 593-95 (finding sheriff, who unsuccessfully attempted to contact occupants while investigating unusual aircraft activity, did not conduct an illegal search by looking through window on which blinds were open after smelling marijuana).

Appellant also emphasizes that the window was seventy inches from the ground, and Deputy Morrison had to stand on his tiptoes to look through it. However, “ ‘[t]he police are free to observe circumstances and evidence that are in “plain view” to the public.... That the policeman may have to crane his neck, or bend over, or squat, does not render the doctrine inapplicable, so long as what he saw would have been visible to any curious passerby ...’” Hamilton v. State, 590 S.W.2d 503, 504-05 (Tex.Crim.App.1979) (quoting James v. United States, 418 F.2d 1150, 1151 n. 1 (D.C.Cir.1969) (internal citations omitted)); see Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (stating fact that officer had to change his position and bend down at an angle to see heroin-filled balloons in car did not make his observation a search because the public could have peered into the car from any number of angles); Johnson v. State, 469 S.W.2d 581, 583-84 (Tex.Crim.App.1971) (finding police did not conduct a search when after unsuccessfully attempting to contact apartment residents, they looked into a window through a two-inch gap between partially drawn draperies and saw stolen merchandise). Therefore, the fact that Deputy Morrison stood on his tiptoes did not transform his “plain view” observation into a search because any curious passerby could have stood on his tiptoes to look through the window and any curious passerby of sufficient height could have looked through the window without standing on his tiptoes. See Sarantopoulos v. State, 629 So.2d 121, 122-28 (Fla.1993) (finding that officer’s observation of marijuana in defendant’s yard by standing on tiptoes in adjacent yard to view over six-foot wooden fence was not an illegal search; defendant did not create a zone of privacy given that his backyard was protected from view only as to those who remained on the ground or were unable to see over the six-foot fence unaided).

Finally, appellant contends that Deputy Morrison’s use of a flashlight turned his observation into a search. However, an officer’s use of a flashlight to aid his vision does not transform an otherwise justifiable “plain view” observation into a search. See Brown, 460 U.S. at 739-40, 103 S.Ct. 1535; Howard v. State, 599 S.W.2d 597, 600 n. 11 (Tex.Crim.App.1979); Swarb, 125 S.W.3d at 680; see also Onofre v. State, 474 S.W.2d 699, 701 (Tex.Crim.App.1972) (stating that the “plain view” doctrine does not go into “hibernation at sunset.”). Consequently, Deputy Morrison’s use of a flashlight to illuminate appellant’s living room did not transform his “plain view” observation into a search.

Accordingly, Deputy Morrison’s “plain view” observation of the marijuana and drug paraphernalia through the front door window was not a search. We overrule appellant’s first issue.

B. Entry into the Backyard

Next, appellant contends that the deputies committed a trespass or impermissible, warrantless search by entering his backyard and approaching his back door. The Fourth Amendment protections extend to the curtilage of a home. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979). “Curtilage” is the land immediately surrounding and associated with the home. State v. Peyrani, 93 S.W.3d 384, 387 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). However, not every trespass upon the curtilage constitutes a search. See Washington v. State, 152 S.W.3d 209, 214-15 (Tex.App.-Amarillo 2004, no pet.); Buchanan v. State, 129 S.W.3d 767, 771-73 (Tex.App.-Amarillo 2004, pet. ref'd); Watts v. State, 56 S.W.3d 694, 699 (Tex.App.-Houston [14th Dist.] 2001), rev’d on other grounds, 99 S.W.3d 604 (Tex.Crim.App.2003). An officer may enter the curtilage of a house in an effort to contact its occupant 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. Washington, 152 S.W.3d at 215; Buchanan, 129 S.W.3d at 773.

Several courts have found that no search occurs when police officers approach the back door of a home merely to contact the residents after they have first tried the front door and received no answer. See Gonzalez, 588 S.W.2d at 357-60 (finding that game warden’s initial action in approaching back door after receiving no response at front door did not constitute a search); Long, 532 S.W.2d at 593-95 (holding that sheriff who knocked at the front door of home and received no answer, then knocked at the back door and also received no answer, and then while returning to his car, smelled marijuana though an open window, did not conduct a “search”); Watts, 56 S.W.3d at 700-01 (holding officers did not conduct a search when after receiving no answer at front door, they went to the back door to knock and observed raw sewage at issue); cf. Peyrani, 93 S.W.3d at 387-88 (upholding ruling that officers conducted an unconstitutional, warrantless search when they failed to knock at the front door and instead walked around to the fenced backyard and observed marijuana). Here, Deputy Morrison’s uncontroverted testimony was that the deputies went to the back of the house to see if there were any persons in the house after knocking on the front door and receiving no answer. The trial court made a finding of fact that Deputy Morrison went to the backyard to contact the occupants, and we give deference to that finding. See Carmouche, 10 S.W.3d at 327.

Nevertheless, appellant asserts that the deputies’ entry into his backyard was impermissible because he had restricted access to the backyard, and, thus, had an expectation of privacy. Rudy Vargas, an investigator hired by appellant, viewed the property approximately six months after the incident. He testified that a gated, chain-link fence blocked access to the side yard, and another gated, chain-link fence blocked access from the side yard to the backyard. Appellant averred by affidavit that he could not recall whether the gate to the side yard was closed on the night of this incident, but the gate on the fence between the side yard and backyard is always closed to prevent his dog from escaping. Appellant presented photographs and a videotape purporting to show the fences at issue.

In contrast, Deputy Morrison testified there were no fences restricting access to the backyard on the night of the incident; specifically, the fences depicted in the photographs were not present that night. In its findings of fact, the trial court found that Deputy Morrison was credible and Vargas and appellant were not credible. Moreover, after reviewing the condition of the fence depicted in the photographs and video, the trial court found that the fence had been erected after the search warrant was executed. Because the trial court was the sole judge of the credibility of the witnesses, we give deference to its determination that there were no fences restricting the deputies’ access to the backyard. See id.

Consequently, because the deputies had unrestricted access to the backyard, they did not trespass or conduct a search when they approached the back door to contact the occupants. Finally, while the deputies were at the back door, Deputy Morrison had a clearer view through the back patio door of the marijuana and drug paraphernalia on the living room coffee table, smelled marijuana from an air conditioning unit, and saw a marijuana-growing lab through a partially-covered broken window. Because the deputies were permissibly at the back door, Deputy Morrison’s “plain view” observations do not constitute searches. We overrule appellant’s second issue.

C. Entry into the House

In his third issue, appellant complains that the deputies entered his house without a warrant. In response, the State argues that the deputies were justified in entering the house pursuant to the “emergency doctrine.” See Brimage v. State, 918 S.W.2d 466, 500-01 (Tex.Crim.App.1996) (op. on reh’g) (recognizing that pursuant to the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid). We need not decide whether the deputies were justified in entering appellant’s house pursuant to the emergency doctrine because Deputy Morrison’s affidavit did not include any observations made while inside the house. The affidavit outlined only his observation through the front door window and his observations while outside the back door. Therefore, the search warrant was not based on any observations made while the deputies were inside the house. Accordingly, we overrule appellant’s third issue.

D. Validity of the Search Warrant

In his fourth issue, appellant contends that the search warrant was invalid because Deputy Morrison’s affidavit contained information obtained in violation of the Fourth Amendment and misrepresentations as argued in appellant’s first three issues. Because we have rejected these arguments, we overrule his fourth issue. Therefore, the trial court did not err by denying appellant’s motion to suppress.

Accordingly, the judgment of the trial court is affirmed.

      . Appellant presented evidence that the window was seventy inches from the ground.

      .The Court of Criminal Appeals recently articulated an exception to the general standard for reviewing a ruling on a motion to suppress. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004). A magistrate's determination of probable cause to issue a search warrant should be given great deference and not reviewed de novo based on the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process. Id. Thus, a distinction exists between the standards of review applicable to warrantless searches and searches pursuant to a search warrant. Id. at 811. Here, appellant does not challenge whether the magistrate had probable cause to issue the search warrant based on Deputy Morrison's affidavit as a whole. Instead, he contends there was no probable cause because the information in Deputy Morrison’s affidavit was obtained through impermissible, warrantless searches and must be excised. Therefore, we will apply the bifurcated standard of review applicable to warrantless searches.

      . At the motion-to-suppress hearing, appellant presented evidence that due to the location of the coffee table, Deputy Morrison would not have been able to see the contraband on the table. However, on appeal, appellant no longer argues that the contraband was not visible. Instead, he argues that Deputy Morrison’s observation of the contraband was, nonetheless, an impermissible search.

      . Appellant asserts Deputy Morrison did not have "probable cause” to approach the house based on the "tip” he received from the vehicle passenger. However, appellant cites no authority that an officer must have probable cause merely to approach the front door of a home to contact the residents. Appellant also asserts that Deputy Morrison admitted he went to appellant’s house on an "exploratory quest” for evidence of drug activity. However, although Deputy Morrison testified that he originally hoped to discover drug activity when he went to the house, he also testified that he approached the front door to contact the occupants.

      . In his affidavit supporting the search warrant, Deputy Morrison gave further details about the marijuana-growing lab. He saw approximately one hundred marijuana plants and heard a generator; based on his training and experience, generators are used to grow large amounts of marijuana in enclosed structures.

      . Further, the deputies did not discover any additional contraband while they were inside the house before the search warrant was obtained. Although they saw the marijuana-growing lab while inside the house, they had previously observed the lab from outside the house.


author: KEM THOMPSON FROST, Justice.

text:
    Harold Wayne BAILEY, Appellant v. The STATE of Texas, Appellee.
    No. 14-01-00466-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 16, 2005.

      R. Scott Shearer, Houston, TX, for appellant.
    Alan Curry, Houston, TX, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

Appellant, Harold Wayne Bailey, was charged with failure to stop and render assistance. See Tex. TRAnsp. Code Ann. § 550.023 (Vernon 1999). After appellant pleaded guilty, the trial court ordered restitution as a condition of community supervision. Because we conclude that the trial court erred in ordering restitution for losses that did not result from appellant’s failure to stop and render assistance, we reform the judgment to delete the payment of restitution from the conditions of community supervision. We affirm the trial court’s judgment as reformed.

I. Factual and PROCEDURAL BackgRound

On April 19, 2000, appellant was involved in a car accident and intentionally failed to stop his vehicle at the scene of the accident. Albert Rinker, Jr. was seriously injured in the accident and appellant was charged with failure to stop and render assistance. Appellant pleaded guilty under a plea agreement with the State. The trial court found appellant guilty of the offense and assessed punishment at five years in prison. The trial court suspended the sentence and placed appellant on community supervision for ten years. As a condition of the community supervision, the trial court indicated it would require restitution and set a hearing to determine the amount. Before the restitution hearing, the State stipulated in writing that Rinker’s injuries and resulting medical expenses incurred by reason of the accident were not increased or compounded by appellant’s failure to stop and render assistance to Rink-er. During the restitution hearing, the State conceded that there was a factual dispute as to whether appellant ran a red light and caused the accident. At the conclusion of the hearing, the trial court ordered appellant to pay Rinker $49,148.43 in restitution for medical expenses incurred as a result of injuries Rinker sustained in the accident.

In 2001, appellant appealed the trial court’s restitution order. In a per curiam opinion, this court dismissed the appeal as untimely. Bailey v. State, No. 04-01-00466-CR, 2001 WL 950939, at *1 (Tex. App.-Houston [14th Dist.] Aug. 23, 2001) (not designated for publication), rev’d, 160 S.W.3d 11 (Tex.Crim.App.2004). In 2004, the Court of Criminal Appeals reversed and remanded the case to this court for a decision on the merits of appellant’s challenge to the restitution order. Bailey v. State, 160 S.W.3d 11, 16 (Tex.Crim.App.2004).

II. Issue and Analysis

In his sole issue on appeal, appellant asserts that the trial court’s restitution order violates his right to due process of law. He contends that the injuries Rinker sustained arose from the accident, not from his failure to stop and render assistance. Appellant argues that because Rinker’s injuries were not causally connected to the offense to which appellant pleaded guilty, (1) the restitution ordered in this case was not for the offense for which he was convicted, and (2) the amount of restitution ordered had no factual support in the record.

We review challenges to restitution orders under an abuse-of-discretion standard. See Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.Crim.App.1980). A trial court abuses its discretion when its decision lies outside of the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 872, 391 (Tex.Crim.App.1990) (op. on reh’g). Although a trial court has broad discretion in determining conditions of community supervision, this discretion is not without limits. See TexCode Crim. PROC. Ann. art. 42.12 (Vernon Supp.2004-2005). A plain reading of article 42.037(b)(2) and (c)(1) of the Texas Code of Criminal Procedure indicates that restitution is limited to the results of the offense or offenses charged. Tex.Code CRiM. PROC. Ann. art. 42.037(b)(2), (c)(1) (Vernon Supp. 2004-2005) (stating that “[i]f the offense results in bodily injury to victim,” the court may order restitution for an amount equal to the cost of necessary medical expenses, and that the court shall consider “the amount of the loss sustained by any victim as a result of the offense” in determining the amount of restitution); Gonzalez v. State, 954 S.W.2d 98, 106 (Tex.App.San Antonio 1997, no pet.) (stating that a reading of article 42.037 “clearly shows that restitution is limited to the results of the offense or offenses charged”).

Furthermore, a majority of the courts that have addressed this issue have concluded that the amount of a restitution order is limited to the losses the victim suffered as a result of the offense for which defendant was convicted. See Cabla v. State, 6 S.W.3d 543, 546 (Tex.Crim.App.1999) (dicta); Drilling v. State, 134 S.W.3d 468, 470-71 (Tex.App.-Waco 2004, no pet.); Uresti v. State, 98 S.W.3d 321, 337-38 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Montgomery v. State, 83 S.W.3d 909, 912 (Tex.App.-Eastland 2002, no pet.); Gonzalez, 954 S.W.2d at 106; Stewart v. State, Nos. 05-99-00073, 05-99-00074, 2000 WL 31862, at *3 (Tex.App.-Dallas Jan.18, 2000, no pet.) (not designated for publication); But see In re C.T., 43 S.W.3d 600, 602-03 (Tex.App.-Corpus Christi 2001, no pet.); Lerma v. State, 758 S.W.2d 383, 384 (Tex.App.-Austin 1988, no pet.). In this case, we must determine whether there is evidence Rinker’s medical expenses resulted from appellant’s failure to stop and render assistance.

Appellant argues the restitution order is erroneous because it was the accident — not his failure to stop and render assistance — that caused Rinker’s injuries. The State contends, however, the trial court did not abuse its discretion in ordering appellant to pay restitution as a condition of his community supervision. The State recognizes that the amount of a restitution order is limited to only the losses or expenses that Rinker suffered as a result of the offense for which appellant was convicted. However, the State contends that, because appellant’s involvement in an accident that resulted in injury or death to a person is an essential element of failing to stop and render assistance, appellant should be required to pay restitution because he was involved in the accident. See In re C.T., 43 S.W.3d at 602-03; Lerma v. State, 758 S.W.2d at 384. Had there been no accident, the State argues, there would have been no crime in failing to stop and render assistance. See In re C.T., 43 S.W.3d at 602-03; Lerma, 758 S.W.2d at 384. The State argues, therefore, Rinker’s injuries arose from the offense of which appellant was convicted.

Appellant pleaded guilty to the following offense under section 550.021 of the Texas Transportation Code:

The operator of a vehicle involved in an accident resulting in injury to or death of a person shall:
(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and
(3) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.
A person commits an offense if the person does not stop or does not comply with the requirements of this section.

Tex. TRAnsp. Code Ann. § 550.021(a), (c) (Vernon 1999). The part of section 550.023 applicable in this case requires the operator of a vehicle involved in an accident resulting in the injury or death of a person to provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment because it was apparent that treatment is necessary. Tex. Transp. Code Ann. § 550.031 (Vernon 1999).

Although “involvement in an accident resulting in injury or death of a person” is a prerequisite to the commission of the offense in question, such involvement alone is not sufficient to constitute a criminal offense. See Tex. Transp. Code Ann. §§ 550.021, 550.023. It was appellant’s failure to stop and assist Rinker that was the criminal conduct. In this case, the State, prior to the restitution hearing, stipulated in writing that Rinker’s injuries and resulting medical expenses were not increased or compounded by appellant’s failure to stop and render assistance. Given the State’s stipulation, we conclude the State has not proven that Rinker’s medical expenses resulted from the offense for which appellant pleaded guilty. Thus, the trial court erred in awarding restitution for these expenses. See Drilling, 134 S.W.3d at 470-71; Lemos v. State, 27 S.W.3d 42, 47-49 (Tex.App.-San Antonio 2000, pet. denied); Gonzalez, 954 S.W.2d at 106-07.

To support its argument, the State relies on Lerma and In re C.T. The Lerma court reasoned that a defendant convicted of failing to stop and render assistance could be ordered to pay restitution for the victim’s injuries because involvement in an accident resulting in injury or death is an element of the offense for which the defendant was convicted. 758 S.W.2d at 384. The Lerma court explained that the appellant’s effort to separate the accident and resulting injuries to the victim from his subsequent failure to stop and render assistance was “an effort to separate the inseparable.” Id. But see Lemos, 27 S.W.3d at 47-49; Drilling, 134 S.W.3d at 470-71. The In re C.T. court applied the reasoning of Lerma to order restitution for property damage from a defendant who failed to stop and leave information after being involved in a three-car accident. See In re C.T., 43 S.W.3d at 602-03. In the present case, however, the State has stipulated that Rinker’s injuries are separable from appellant’s failure to stop and render assistance. We respectfully disagree with Lerma and In re C.T. to the extent they stand for the proposition that a defendant convicted of failure to stop and render assistance may be ordered to pay restitution to all those injured in the accident, regardless of whether their injuries resulted from the defendant’s failure to stop and render assistance.

Based on the record before us, we conclude the trial court abused its discretion by ordering appellant to pay restitution as a condition of his community supervision. Because we have decided that the restitution ordered in this case was for losses that did not result from the offense of which appellant was convicted, we need not determine if the amount of restitution is supported by a factual basis in the record. Accordingly, we sustain appellant’s sole issue on appeal. The judgment of the trial court is reformed to delete the payment of restitution from the conditions of community supervision. See Gordon v. State, 707 S.W.2d 626, 629 (Tex.Crim.App.1986); Gonzalez, 954 S.W.2d at 106-07. We affirm the judgment of the trial court as reformed.

      . There is no evidence in the record on the issue of whether it was appellant or Rinker who ran the red light, causing the accident. The State conceded the existence of a factual dispute on this issue. Appellant was not charged with reckless driving or driving while intoxicated, offenses which might relate to one’s fault in the accident. In contrast, the offense of failing to stop and render assistance is based on one’s actions after the accident. In this case, it is possible that appellant was not at fault for the accident at all; Rinker may have rim the red light and caused the accident.


author: J. HARVEY HUDSON, Justice.

text:
    Ronald JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00032-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 18, 2005.

      Karen Clark Harpold, Houston, TX, for appellant.
    Carol M. Cameron, Houston, TX, for appellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

J. HARVEY HUDSON, Justice.

Appellant, Ronald Johnson, was charged by indictment with possession of at least 400 grams of cocaine with intent to deliver. Appellant filed a motion to suppress the evidence which was subsequently overruled after a hearing. Appellant then entered a plea of guilty. The trial court found appellant guilty and assessed his punishment at confinement in the state penitentiary for a term of 25 years and a fine of $1,000.00. On his first appeal, appellant claimed the trial court erred in denying his motion to suppress. The State argued we had no jurisdiction to consider the appeal due to a defective notice of appeal. This court found jurisdiction based, in part, on the Texas Court of Criminal Appeals’ decision in Riley v. State, 825 S.W.2d 699 (Tex.Crim.App.1992). Having found jurisdiction, we reversed the trial court’s judgment for error in denying appellant’s motion to suppress. See Johnson v. State, 47 S.W.3d 701 (Tex.App.-Houston [14th Dist.] 2001), rev’d, 84 S.W.3d 658 (Tex.Crim.App.2002). On the State’s petition for discretionary review, the Texas Court of Criminal Appeals abrogated its previous holding in Riley upon which we had relied, reversed our judgment, and dismissed the appeal for want of a valid notice of appeal. Johnson v. State, 84 S.W.3d 658, 660 (Tex.Crim.App.2002).

Thereafter, appellant filed a post-conviction writ of habeas corpus alleging that ineffective assistance of counsel denied him a meaningful appeal. The court of criminal appeals granted relief and ordered that appellant be permitted to file an out-of-time notice of appeal. Ex parte Johnson, No. 74843, 2003 WL 22909099 (Tex.Crim.App. Dec.10, 2003). Accordingly, appellant presents a single point of error alleging that the trial court erred in denying his motion to suppress. We affirm.

The record reflects that sometime after 10:00 p.m. on March 26, 1998, Harris County Deputy Sheriff Shannon Bowdoin left his substation to assist Deputy I.G. Gordy in executing an unrelated arrest warrant. While en route, Bowdoin was “flagged down” by a citizen who stated that he had been chasing an armadillo between two nearby houses when he inadvertently observed a man processing what he knew to be crack cocaine. Bowdoin advised Gordy on the radio that he was going to “check out” the citizen’s report, and Gordy agreed to assist Bowdoin in his investigation. The citizen told the deputies that while searching for the armadillo, he had peered through a wooden fence surrounding the back yard of a house. Due to the late hour, he could see inside the lighted house and noticed a gentleman standing in his kitchen processing cocaine.

Bowdoin and Gordy went to the house indicated by the citizen. They exited their patrol vehicles and walked toward the east side of appellant’s home. A large kitchen window and glass patio door were on the east side of appellant’s home. As Bowdoin peered through the fence, he saw a triple beam scale in an upper cabinet on the west wall of appellant’s kitchen. He knew from experience that triple beam scales are commonly used in the processing and sale of narcotics. Bowdoin also saw a box of baking soda near the scale which he knew was used in the creation and “cutting” of crack cocaine. At this time Bowdoin and Gordy decided they “would do what is commonly referred to as a knock and talk.” Bowdoin described the procedure:

Well, basically you knock on their front door, introduce yourself, state why you are there. You know, this is why we are here. Do you have a problem with us coming in and taking a look around? That’s just a common practice.

Bowdoin testified that he hoped to get appellant’s consent to search the premises.

Figure 1: State’s Exhibit 10

Gordy began to circle around the house to knock on the front door located on the southwest corner of the house. Bowdoin tried to position himself in a location where he could cut off any potential escape from the rear of the house. Bowdoin observed the back yard was accessible through an open gate on the north side of the house near appellant’s garage. While that location did not permit Bowdoin to directly view the patio door on the rear of the house, it did allow him to see a large portion of the backyard, and it gave him ready access to the backyard should he need to apprehend a fleeing suspect. Unfortunately, the area around the gate was illuminated by a floodlight in the alley. As Bowdoin stood in the open gate, appellant unexpectedly opened the window treatments on a north-side window of the house. Almost face-to-face, Bowdoin observed that appellant looked startled. Appellant immediately retreated into the house.

Fearing for Gordy’s safety, Bowdoin entered appellant’s backyard. Bowdoin rounded the northeast corner of the house, moved along the east wall, and stopped at the corner of the patio. As he peered around the corner, Bowdoin noticed a machete laying on the patio. He then observed appellant enter the kitchen and walk to the sink. Bowdoin stepped onto the patio and walked up to a sliding glass door and window where he again came virtually face-to-face with appellant as appellant was reaching for a plastic bag filled with cookies of crack cocaine. Upon seeing Bowdoin, appellant attempted to cover the bag of cocaine with a muffin pan. Bowdoin drew his weapon and ordered appellant to the floor. Appellant complied. Appellant then crawled toward Bowdoin, as instructed, and unlocked the patio door. Bowdoin arrested appellant. Appellant subsequently gave Bowdoin and Gordy written consent to search the house, and cocaine was found and seized in various locations in the house.

Appellant contends, in his sole point of error, that the trial court erred in denying his motion to suppress. During oral argument, appellant claimed, for the first time on appeal, that we need not revisit the propriety of the search due to the “law of the case” doctrine. Because we previously held the police lacked probable cause, appellant contends we should reach the same holding here. “The ‘law of the case’ doctrine provides that once a question of law in a particular case has been finally resolved, that question will not be reconsidered in subsequent proceedings of the same case.” Ex parte Schuessler, 846 S.W.2d 850, 852 n. 7 (Tex.Crim.App.1993). Law of the case is a court-made doctrine designed to promote judicial consistency and efficiency by eliminating the need for appellate courts to prepare opinions discussing previously resolved matters. Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999). The doctrine’s application is not inflexible, however. See Ex parte Granger, 850 S.W.2d 513, 523 (Tex.Crim.App.1993). An appellate court may reconsider its earlier disposition of a point of law if the court determines that there are “exceptional” circumstances that mitigate against relying on its prior decision. Id Here, our previous opinion was a nullity because we lacked jurisdiction to consider the appeal. See Johnson v. State, 84 S.W.3d 658, 660-61 (Tex.Crim.App.2002). As such, our previous opinion was void ab initio. State v. Roberts, 932 S.W.2d 700, 702 (Tex.App.-Tyler 1996, no pet.). Accordingly, we hold our previous judgment does not govern here, and we are not bound by the law of the case doctrine. See Schuessler, 846 S.W.2d at 852 n. 7.

For its part, the State claims we need not reach the merits because appellant waived any error by not objecting at trial on the same grounds now presented on appeal. The State asserts in its brief that appellant presented at trial a generic motion to suppress that merely objected to “all evidence seized in the instant case because of the illegal detention, search, and arrest of the defendant and his home.” Thus, the State postulates that we cannot now consider appellant’s contention that the arrest and search were not supported by probable cause.

A motion to suppress is a specialized objection to the admissibility of evidence. Porath v. State, 148 S.W.3d 402, 413 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Therefore, a motion to suppress must meet all of the requirements of an objection, that is, it must be timely and sufficiently specific to inform the trial court of the complaint. Id Here, appellant’s motion to suppress states the search “was conducted ... without an arrest or search warrant.” When a defendant seeks to suppress evidence, he bears the burden to rebut the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). This initial burden is met by proving the police conducted the search without a warrant. Id. Here, the State’s attorney admitted the search had been conducted without the benefit of a warrant. Once the defendant establishes (1) that a search or seizure occurred and (2) that no warrant was obtained, the burden shifts to the State to prove the reasonableness of the search pursuant to one of the recognized exceptions to the warrant requirement. Id.

The State put on evidence that the search was reasonable (and thus fell within an exception to the warrant requirement) because it was supported by (1) probable cause and exigent circumstances and (2) written consent. Having made a prima facie showing that the search fell within at least two well-recognized exceptions to the warrant requirement, we find the burden then shifted back to the defendant to show the invalidity of these exceptions. We do not mean to imply by this that appellant was required to present additional evidence to prevail on his motion to suppress — the trial court, as the trier-of-fact, could conclude, for example, the State’s evidence was insufficient or not credible. However, if appellant had further complaints or objections regarding the admissibility of the evidence, he was obliged to make them clear to the trial court. Porath, 148 S.W.3d at 413. In other words, appellant must have made the trial judge aware of his objection and given her the opportunity to address it. Id.

Appellant’s written motion to suppress complained only that the search was conducted without the benefit of a warrant. The record fails to show that appellant made any further objection or complaint once the State offered evidence showing the search allegedly fell within several warrant exceptions. However, a defendant may always challenge the sufficiency of the evidence for the first time on appeal. Coggin v. State, 123 S.W.3d 82, 89 (Tex.App.-Austin 2003, pet. ref'd). Here, appellant contends in his sole point of error that the search was not supported by probable cause. Moreover, it appears appellant’s contention, both at trial and on appeal, is the same, i.e., that the State’s evidence, even if true, fails to show the existence of probable cause. Accordingly, we overrule the State’s contention that the issue has not been preserved for our review.

In his brief, appellant contends he had a reasonable expectation of privacy in his backyard, and that Deputy Bowdoin unlawfully invaded the curtilage of his home without probable cause when he entered the backyard. “Probable cause” is a practical, nontechnical concept. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). It ripens at the moment facts and circumstances -within the officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing the suspect has committed or is committing an offense. Id. Where police are approached by a “named” private citizen to report that he has witnessed a criminal act committed by another, “the credibility and reliability of the information is inherent.” Esco v. State, 668 S.W.2d 358, 360-361 (Tex.Crim.App.1982); Barton v. State, 962 S.W.2d 132, 143 (Tex.App.-Beaumont 1997, pet. ref'd). Here, however, the citizen is not named. The record does not reflect whether his name-lessness is due to the citizen’s desire for anonymity or a simple oversight on the part of the police. In any event, we recognize there is a split of authority regarding the degree of credibility afforded to such unnamed citizens.

In State v. Fudge, 42 S.W.3d 226, 228 (Tex.App.-Austin 2001, no pet.), an unnamed taxi cab driver approached an Austin police officer and pointed out a white pickup truck that he claimed was “all over the road.” The officer immediately stopped the truck and asked the driver to step out. The driver grabbed the side of the truck to maintain his balance, had bloodshot eyes, and had a strong odor of alcohol on his breath. After failing a field sobriety test, the driver was arrested for driving while intoxicated. The court of appeals held that by approaching the officer face-to-face, the cab driver put himself in a position where he could have been held accountable for his intervention. Id. at 232. Thus, the cab driver’s credibility was such that the officer had reasonable suspicion to authorize a temporary detention. Id.

In Bilyeu v. State, 136 S.W.3d 691, 694 (Tex.App.-Texarkana 2004, no pet.), two police officers were taking a break in the parking lot of a convenience store at approximately 2:00 a.m. when they were approached by an unidentified citizen who reported that he had seen a woman asleep at the wheel of a gold Mercedes-Benz automobile while stopped at a nearby intersection while the traffic light was green. The citizen then identified the vehicle as it slowly passed by the officers’ location at ten miles per hour in a thirty-five-mile-per-hour zone. The officers stopped the vehicle and determined the driver was intoxicated. The court of appeals chose not to follow Fudge; rather the court held the information provided by the unnamed citizen was akin to information from an anonymous tip. Id. at 695 n. 3.

The reasonableness of a police officer’s actions under the Fourth Amendment is not capable of precise definition or mechanical application. Rhodes v. State, 913 S.W.2d 242, 249 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App.1997). Accordingly, we should not casually second-guess the officers’ conduct from the relative tranquility of our chambers. Id. Rather, reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. Allowance must be made for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Id. Thus, we recognize that situations may arise where a serious offense reportedly has occurred, is occurring, or is about to occur such that it would be foolhardy for the police to suspend their investigation until they had first determined the identity of the citizen-informant. The exigencies in such a case render the police officer’s immediate investigation reasonable. In such a scenario, we agree with the holding in Fudge, namely, that an unnamed citizen’s unsolicited, face-to-face report of criminal conduct is inherently more reliable than an anonymous tip because the citizen could have been held accountable for his intervention.

While standing outside the curti-lage, the police corroborated the citizen’s report of narcotics activity by observing a triple beam scale near a box of baking soda in appellant’s kitchen. While baking soda is a common in most kitchens, triple beam scales are not. The chance of randomly observing a box of baking soda in close proximity to a triple beam scale while passing behind a residence is extremely remote, and thus this observation greatly strengthened the credibility of the citizen’s report that he recognized crack cocaine being manufactured in appellant’s home. Accordingly, we hold the police officers had probable cause to believe appellant was committing a criminal offense.

Appellant further contends that because the police had no probable cause to believe he was in possession of cocaine, they had no probable cause to believe he would destroy the contraband upon discovering the police outside his residence. Likewise, because the police had no probable cause to believe appellant was committing a criminal offense, he reasons that the police had no probable cause to believe he represented a physical threat to their safety. Accordingly, appellant contends that because there was no probable cause, there were no exigent circumstances justifying the warrantless arrest and search. In other words, appellant’s argument regarding the lack of exigent circumstances is derived from and rests solely upon his contention the police did not possess probable cause to believe he was in possession of cocaine. However, we have already resolved that issue against appellant. Thus, we overrule appellant’s contention.

Finally, appellant contends that because the police lacked probable cause, their invasion of the curtilage was improper. Because the invasion of the curtilage was improper, appellant contends his subsequent arrest was improper. Because his arrest was improper, he contends his written consent to search was tainted “fruit of the poisonous tree.” Thus, his contention again rests entirely upon the alleged want of probable cause. Because we have already determined that the police did, in fact, possess probable cause to believe appellant was in possession of cocaine, his final contention also fails.

The judgment of the trial court is affirmed.

      . See Telshow v. State, 964 S.W.2d 303, 307 (Tex.App.-Houston [14th. Dist.] 1998, pet. ref'd); Hogan v. State, 954 S.W.2d 875, 876 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd); Myles v. State, 946 S.W.2d 630, 635 (Tex.App.-Houston [14th Dist.] 1997, no pet.). These cases stand for the proposition that once a defendant establishes a seizure occurred without a warrant, the burden of proof then shifts to the State to produce evidence of a warrant. But if evidence of a warrant is produced, the burden shifts back to the defendant to show the invalidity of warrant. We think the same rule applies when the State, in lieu of a warrant, produces evidence of a warrant exception. In such case, the burden shifts back to the defendant to show the invalidity or inapplicability of the exception.

      . Counsel may well have made a more specific objection when arguing the merits of his motion. However, our record does not contain any arguments or discussions at the conclusion of the suppression hearing.

      . See United States v. Buckley, 4 F.3d 552, 555-56 (7th Cir.1993) (holding fact that informant had seen cocaine, a triple beam scale, and packaging materials was sufficient probable cause for a warrant); United States v. Tate, 795 F.2d 1487, 1489 (9th Cir.1986) (holding that after discovering narcotics in defendant’s home, observation of a triple beam scale, containers, and a package containing rubber gloves inside his van was sufficient to justify a search warrant for the van); Commonwealth v. Cramutola, 450 Pa.Super. 345, 351, 676 A.2d 1214, 1217 (1996) (holding that report of concerned citizen and confidential informant that they had seen a triple beam scale and a plate with razor blades in defendant’s kitchen and that defendant had refused to sell drugs to informant because she did not know him was sufficient to establish probable cause to believe defendant was trafficking in narcotics); People v. Hill, 169 Ill.App.3d 901, 910, 120 Ill.Dec. 574, 524 N.E.2d 604, 610 (1988) (holding that where police officer saw defendant in possession of white powder, a triple beam scale, and numerous packets, he had probable cause to make a warrantless arrest).


author: Justice GARZA.

text:
    Paul FREEMAN, Appellant, v. STEPHENS PRODUCTION COMPANY, A Division of Stephen Group, Inc., et al., Appellees.
    No. 13-04-208-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 18, 2005.
    Rehearing Overruled Sept. 29, 2005.

      Carlos H. Ochoa, McAllen, Gary E. Ellison, Houston, Mickey Olmstead, Austin, for Appellant.
    Steven W. Ellis, Corpus Christi, Charles C. Murray, Atlas & Hall, J.W. Dyer, Dyer & Associates, McAllen, for Appellees.
    Donald G. Sinex, Houston, Peter A. Vermillion, Austin, for intervenors.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by

Justice GARZA.

In this appeal from the trial court’s final summary judgment, the parties dispute the terms of a 1946 deed by which Paul Freeman conveyed title to certain property to Kenneth R. Hixon and Mary Katherine Hixon (the “Freeman-Hixon Deed”). Freeman’s grandson, also named Paul Freeman (“Paul”), claims that the Freeman-Hixon Deed reserved to his grandfather a one-half participating interest in and to all oil, gas, and other minerals in or under the land conveyed by the deed. Paul contends that he owns a one-third interest in this reservation. His claim is opposed by Stephens Production Company, which asserts rights to certain portions of the mineral estate through a mineral lease executed by the Hixons’ successors in interest, some of who are intervenors in this matter and also oppose Paul’s claim.

Stephens filed suit for declaratory judgment against Paul and four other defendants, asking the trial court to declare that the disputed reservation in the Freeman-Hixon Deed only affected a portion of the conveyed land known as Lot 288. Paul counterclaimed, seeking a declaration that the reservation was not limited to Lot 288 but affected the entire property conveyed by the deed. Subsequently, the lessors of Stephens’ mineral lease filed a plea in intervention, seeking a declaration that the Freeman-Hixon Deed did not reserve any mineral interest in the land covered by their mineral lease with Stephens (“the Closner Lots”) and to establish their ownership of the mineral estate of the Closner Lots.

Stephens, Paul, and the intervenors each filed traditional motions for summary judgment, arguing that the Freeman-Hix-on Deed was unambiguous and supported them respective positions. In addition, Stephens and the intervenors argued that Paul’s claim for declaratory relief was barred by res judicata. In response, Paul argued that the claims asserted by Stephens and the intervenors were barred by estoppel by deed and limitations. Before the trial court ruled on their motion, the intervenors settled their claims with all defendants other than Paul, and all claims between these defendants, the intervenors, and Stephens were dismissed with prejudice. The trial court then entered a final summary judgment for Stephens and the intervenors against Paul, who now appeals by four issues. Because genuine issues of material fact remain unresolved, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

I.

In his first issue, Paul contends that the trial court erred as a matter of law by interpreting the reservation clause to apply only to Lot 288. Paul contends that the following language from the deed unambiguously reserves an undivided one-half interest in the mineral estate of all lots conveyed by the deed:

I, Paul Freeman, ... do Grant, Sell and Convey, unto the said Kenneth R. Hixon and Mary Katherine Hixon of the County of Hidalgo of Texas all that certain lot, tract or piece or parcel of land lying and being situated in Hidalgo County, Texas, to-wit:
All of Lot 1, Block 15; Lot 2, Block 15; The West 17.51 acres of Lot 3, Block 15; All of Lot 10, Block 15; All of Lot 9, Block 15; All of Lot 11, Block 15; All of Lot 12, Block 15; out of the Closner Subdivision of Porciones 71 and 72, also known as the San Juan Tract, Hidalgo County, Texas; EXCEPT such minerals as Grantor does not own; AND ALL of Lot No. 288 of the Kelly-Pharr Subdivision of Porciones 69 and 70, Hidalgo County, Texas; EXCEPT that there is reserved in Grantor an undivided one-half participating interest in and to all of the oil, gas or other minerals in or under said tract of land....

If the language of a deed is unambiguous, the court’s primary duty is to ascertain the intent of the parties from the language of the deed by using the “four corners” rule. French v. Chevron U.S.A., 896 S.W.2d 795, 796 (Tex.1995). Whether a written instrument is ambiguous is a question of law for the court. Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex.2000). A written instrument is ambiguous if its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Towers of Tex., Inc. v. J & J Systems, Inc., 834 S.W.2d 1, 2 (Tex.1992). Such is the case here.

No single reasonable meaning clearly emerges from the language of the instrument. To the contrary, we are equally uncertain and doubtful of the opposite interpretations advanced by the parties. The reservation speaks of its subject as a “tract.” Use of this singular noun indicates that the reservation applies only to Lot 288 and not to the other lots. Nevertheless, the first clause of the grant also speaks of a “lot, tract or piece or parcel of land,” even though the deed conveys eight different lots. Thus, the reservation’s use of the singular noun “tract” to describe its subject is consistent with the deed’s use of the singular noun “tract” to describe multiple lots and, in fact, the entire conveyance. This indicates that the reservation applies to all lots. Still, the deed refers to the Closner Lots collectively as the “San Juan Tract” and then proceeds to list Lot 288 separately, indicating that the Closner Lots and Lot 288 are treated as two different tracts. The reservation would then apply only to the second tract, Lot 288. Further complicating matters is the reservation’s location in a clause rather than a separate sentence. It thus appears to modify only the noun immediately preceding it, Lot 288. Given the foregoing considerations, this Court can only speculate as to the effect of reservation. We are uncertain and doubtful of both interpretations advanced by the parties.

Because the deed is ambiguous, the trial court erred by granting summary judgment based on its interpretation of the deed. A jury should hear evidence and determine the parties’ intent. See Columbia Gas Transmission Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex.1996); see also J. Hiram Moore, Ltd. v. Greer, — S.W.3d —, —, No. 02-0455, 2005 WL 1186334, *4, 2005 Tex. LEXIS 428, *10 (May 20, 2005) (publication pending). Paul’s first issue is sustained in part and overruled in part.

II.

In his second issue, Paul contends that the trial court erred by denying his motion for summary judgment based on estoppel by deed. As this Court recently noted in Sauceda v. Kerlin, “Estoppel by deed stands for the general proposition that ‘all parties to a deed are bound by the recitals therein, which operate as an estop-pel, working on the interest in the land if it be a deed of conveyance, and binding both parties and privies; privies in blood, privies in estate, and privies in law.’ ” Sauceda v. Kerlin, 164 S.W.3d 892, 915 (Corpus Christi, 2005, no pet. h.) (quoting Wallace v. Pruitt, 1 Tex.Civ.App. 231, 20 S.W. 728, 728-29 (Tex.Civ.App.-Houston 1892, no writ)).

In support of his motion for summary judgment, Paul produced evidence that Kenneth R. Hixon and other subsequent interest holders executed multiple conveyances, as well as an oil, gas, and mineral lease, acknowledging that the mineral reservation covered all land conveyed by the Freeman-Hixon Deed, including the Clos-ner Lots. Based on this evidence, Paul argues that the doctrine of estoppel by deed prevents Stephens and the interve-nors from taking a position contrary to that of Hixon and their other predecessors in interest.

Stephens and the intervenors, in turn, argue that estoppel by deed cannot be applied against grantees but only against grantors. They further contend that Paul cannot use estoppel by deed because he was not a party to the instruments upon which he relies. Finally, they maintain that the instruments produced as evidence by Paul conveyed interests in Lot 288, as well as the Closner Lots, and thus then-references to the prior mineral reservation simply placed later grantees on notice of the reservation’s existence as to certain acreage out of the land conveyed (i.e., Lot 288).

We disagree with two of these contentions. First, estoppel by deed can be applied against grantors and grantees alike, along with their privies. See id. at 915-916. Second, this Court is aware of no requirement that the litigant invoking estoppel by deed be a party to the deed. Although the party against whom estoppel is sought must be a party or a privy, to this Court’s knowledge, there is no corresponding requirement for the party invoking estoppel. No cases imposing such a requirement have been cited by Stephens or the intervenors.

We turn to the evidence produced in support of Paul’s motion. As argued by Stephens and the intervenors, the instruments relied upon by Paul convey interests in both the Closner Lots and Lot 288. Because there is no dispute that Lot 288 is subject to the reservation of the Freeman-Hixon Deed, the acknowledgment of the reservation in these instruments is not necessarily an acknowledgment that the reservation applies to the Closner Lots. In fact, two of the instruments use the same murky language and format as the Freeman-Hixon Deed, making this Court no more certain of their meaning than that of the Freeman-Hixon Deed.

However, one of the instruments uses a different format and provides some evidence that the reservation applies to the Closner Lots. This document, a special warranty deed, was executed on September 18, 2001 between intervenor M.G. and B.B. Smith Partners, Ltd. and Keller Real Estate Investments, Inc. (the “Smith-Keller Deed”). It specifically conveys 66.23 acres out of Lots 1, 2, 3, and 10, Block 15 of the Closner Subdivision, which it refers to as “Tract 1.” The Smith-Keller Deed states that Tract 1 is subject to the undivided one-half reservation provided for by the Freeman-Hixon Deed. Although the Smith-Keller Deed thus appears to be conclusive proof that the reservation applies to the Closner Lots, its evidentiary value is belied by a second conveyance made within the same deed. Along with Tract 1, the Smith-Keller Deed also conveys land referred to as “Tract 2,” which is comprised of 239.01 acres out of Lots 2, 3, 8, 9, 10, 11, 12, and 13, Block 15 of the Closner Subdivision and Lots 287, 288, 289, and 290 of the Kelly-Pharr Subdivision. Notably, the deed does not list the reservation provided for by the Freeman-Hixon Deed as one of the 47 reservations applicable to Tract 2. This is especially noteworthy because Tract 2 includes not only portions of the Closner Lots but also Lot 288. Tract 2 also includes Lots 2, 3, and 10, portions of which are included in Tract 1 and expressly made subject to the reservation of the Freeman-Hixon Deed. Further diminishing the evidentiary value of the Smith-Keller Deed is the exclusion of Lots 9, 11, and 12 of the Closner Subdivision from Tract 1. These lots are included in Tract 2, which is not expressly subject to the reservation of the Freeman-Hixon Deed. In sum, the Smith-Keller Deed is some evidence that the reservation extends to the Closner Lots, but it is inconsistent and therefore insufficient to eliminate all genuine issues of material fact. See Tex.R. Civ. P. 166a(c).

The final instrument submitted by Paul is a November 19,1975 oil, gas, and mineral lease executed by Morris Granville Smith and Barbara Smith in favor of Paul S. Freeman, Paul’s grandfather. The lease grants

All our mineral interest in Lots One (1), Two (2), Three (3), Eight (8), Nine (9), Ten (10), Eleven (11), Twelve (12) and Thirteen (13) ... in Block Fifteen (15), John H. Closner, et al Subdivision, Hi-dalgo County, Texas; and Lot Two Hundred Eighty-Eight (288), out of the Kelly-Pharr Subdivision, Hidalgo County, Texas.

The lease provides a “pooling” area of 320 acres and then states that “for purposes of calculating the rental payments hereinafter provided for, said land is estimated to comprise 160 acres, whether it actually comprises more or less.” According to Paul, the difference between the 320-acre pooling area and 160-acre estimation of the land proves that the Smiths only owned one-half of the mineral interest in the land, which is the same land conveyed by the Freeman-Hixon Deed. Paul argues that the Smiths thus acknowledged that the reservation of the Freeman-Hixon Deed extends to the Closner Lots.

Although the mineral lease is some evidence to support Paul’s contention, it fails to eliminate all genuine issues of material fact. See id. The exact acreage of the land covered by the mineral lease is not stated anywhere in the lease. Paul assumes that the acreage is 320, but this amount is derived from the pooling provision, not from any statement regarding the exact acreage of the land. If the correct acreage of the land were 160 acres, Paul’s theory would fail because the mineral interest conveyed would be 100% of what the Smiths owned. Without parol evidence, it is impossible to know with any certainty whether the actual acreage is 160, 320, or some other amount. Accordingly, Paul did not establish his entitlement to judgment as a matter of law on his defense of estop-pel by deed. Paul’s second issue is therefore overruled.

III.

In his third issue, Paul contends that the trial court erred by granting intervenors’ motion for summary judgment based on res judicata. The trial court’s judgment specifies that its decision was based on its interpretation of the Freeman-Hixon Deed, not on res judicata. The judgment states that the Freeman-Hixon Deed did not reserve any mineral interest in the Closner Lots to Paul Freeman Senior. Accordingly, this Court need not consider whether the judgment could be upheld based on res judicata. See Tex.R.App. P. 47.1; State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Paul’s third issue is overruled.

IV.

In his fourth issue, Paul contends that the trial court erred by failing to grant his motion for summary judgment against the intervenors based on limitations. According to Paul, the intervenors or their predecessors-in-title have been on notice of his grandfather’s claim of ownership of the minerals since at least 1949 and are therefore barred by the statute of limitations from disputing ownership. We construe this as a claim of adverse possession, as the only authority relied upon by Paul is Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188, 192-93 (Tex.2003), a case involving a claim of adverse possession of a mineral estate. Paul’s motion for summary judgment alleges that his grandfather “long continued possession and exercise of dominion as an owner of one-half of the mineral in the subject lands”; however, the evidence attached to the motion is insufficient evidence to prove this assertion. Because actual possession of the minerals must occur, see id., the trial court did not err by denying Paul’s motion for summary judgment based on adverse possession. Paul’s fourth issue is overruled.

V.

As it relates to the claims between Stephens, Paul, and the intervenors, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. The remainder of the judgment, specifically, the dismissal with prejudice of the claims between Stephens, the other defendants, and intervenors, has not been challenged in this appeal and is therefore affirmed. See Tex.R.App. P. 44.1(b).

      . The other defendants are Hemus, Ltd., which was non-suited; Paula Kendall Taylor, individually and as independent executrix of the Estate of Byrd Freeman Kendall, deceased; Clemmie Dora Freeman; and Charles Macon Freeman.

      . The intervenors are Charlie A. Hudson; Gregory T. Smith; Bruce Ihrig; Charlie Hudson, Jr.; David Drinkard; Meredith Land & Minerals Company; Winne Land & Minerals, Inc.; and M.G. and B.B. Smith Partners, Ltd.

      .The well-settled standard of review for summary judgments is concisely stated in Fiallos v. Pagan-Lewis Motors, Inc., 147 S.W.3d 578, 582 (Tex.App.-Corpus Christi 2004, pet. denied).

      . These instruments are (1) a warranty deed from Kenneth Hixon and Katherine Hixon to Morris Granville Smith recorded on December 10, 1947 and (2) a special warranty deed from Morris Granville Smith and his wife, Barbara Smith, to intervenor M.G. and B.B. Partners, Ltd., which is dated August 29, 1997.

      . Attached to the motion, are an inventory of the estate of Pat Freeman and an affidavit by Paul, which discusses Paul's knowledge regarding the inventory. The evidence does not prove or purport to prove that either Paul, his grandfather, or any of Paul’s other predecessors-in-interest actually possessed the mineral estate for the requisite statutory period of time.