
    Robert Anthony PORTEOUS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-06-00419-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 29, 2007.
    Discretionary Review Granted Oct. 3, 2007.
    
      Janet Seymour Morrow, Spring, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Jessica A. Caird, Assistant District Attorney, Houston, TX, for The State of Texas.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
   OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Robert Anthony Porteous, guilty of the offense of attempted capital murder of a peace officer and assessed his punishment at confinement for thirty-seven years and a $5,000 fine. In two points of error, appellant contends that the trial court erred in (1) denying his motion to suppress evidence in violation of the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution and (2) denying his request to instruct the jury on the law of self-defense as applied to the offenses of attempted capital murder of a peace officer and the lesser-included offense of aggravated assault of a public servant.

We affirm.

Factual and Procedural Background

Houston Police Department (“HPD”) Officer R. Pinkerton, the complainant, testified that, on January 24, 2005, he left his home in northwest Houston at approximately 11:15 p.m. in order to arrive at work by midnight. As he drove to work in his “personal vehicle,” a gold Ford Explorer, he was wearing his HPD uniform and a black jacket with “Police” in yellow letters across the front of the jacket and “Houston Police” in yellow letters across the back of the jacket. Traveling on Eldridge toward Highway 290, Pinkerton noticed, in his rearview mirror, a set of headlights approaching “[v]ery, very, unusually fast.” He looked to his side view mirror and saw that the approaching car began to pass him. Pinkerton felt the car was “cutting too close,” so he “jerked [his] wheel over to the right to avoid the car.” At that point, he “felt a jolt” and thought that his Explorer had been hit. As Pinkerton slowed his Explorer, the other car appeared to pick up speed. Pinkerton then followed the car and saw it run a red light at a major intersection. Pinkerton explained that he “changed from thinking like a citizen who just felt like [he] had just been hit to now thinking like a police officer.” As he continued the pursuit, Pinkerton saw the car run another red light and make, at a four-way stop, a left-hand turn into a residential neighborhood. When the car turned right out of the neighborhood, Pinkerton saw that it slowed due to traffic.

After the car had stopped, Pinkerton stopped his Explorer fifteen to twenty feet ahead of the car. He approached the car in a semi-circle, so that he came “around the front of the vehicle to the back and then approached the vehicle” from behind. He did this “so that if there’s anyone in the vehicle, they have to ... turn and look over their shoulder.” He noticed that the windows “were so tinted [he] couldn’t see much of anything” and “could barely make out the silhouette of the driver in the front seat of the car.” Pinkerton, who was wearing his HPD uniform and “raid jacket,” which was unbuttoned and “flared open,” shouted, “Houston Police. Turn the ignition off.” He told the driver, “[l]et me see your hands.” After the driver did not respond, Pinkerton pulled out his firearm in the “low ready position,” described as a “nonthreat position,” and also referred to as the “bladed position.” As he repeatedly shouted, “[l]et me see your hands,” he heard the glass of the car’s window shatter and then felt the “first round impact” his right arm. He then felt a second bullet hit his left arm, causing his body to twist so that a third bullet struck underneath the back of his armpit. He staggered back and fell to the ground as the car drove off. Pinkerton explained that one of the bullets tore through the radial nerve of his left arm and another shattered the bone in his right arm, requiring surgery and extensive physical therapy.

Felicia Gonzales testified that, at the time of the shooting, she was living with appellant at his parents’ house. On the night of January 24, 2005, while at a friend’s home, appellant telephoned Gonzales and told her, “I just shot a cop.” Gonzales hung up the phone and soon thereafter called appellant, who told her that as he was driving his mother’s yellow Mitsubishi Lancer, an unmarked car attempted to stop him because he was speeding. The driver cut him off in the road and ran up to his car. Appellant shot the man three times through the window. On cross-examination, Gonzalez testified that appellant “did not know it was a cop when he had shot him.” Appellant also told Gonzales that he was afraid that the man was going to shoot him.

Christopher Barley, a friend of appellant, testified that on January 26, 2005, after hearing the news from another friend, he called appellant to ask “if everything was okay.” Appellant told Barley, “No, not really. I shot somebody.” Barley asked appellant if he had been robbed, and appellant replied by saying, “No, and it was a cop.” Appellant told Barley that he was in his mother’s yellow Mitsubishi Lancer when he shot the man.

Harris County Sheriffs Homicide Detective D. Holtke, the lead detective on the case, testified that appellant, after he was arrested, told him that he did not know that Pinkerton was a police officer until he later saw it on the internet. However, appellant’s cellular phone records revealed that he called Gonzales on the night of the shooting at 11:25 p.m.

Prior to trial, appellant filed a motion to suppress evidence, alleging that his arrest was the product of an illegal search. At the pretrial hearing on the motion, HPD Officer B. McDaniel testified that on January 26, 2005, he began investigating the shooting of Officer Pinkerton. Because the shooting occurred in northwest Harris County, outside the Houston city limits, the Harris County Sheriffs Office became involved in the investigation. From a surveillance video and witness statements, Detective Holtke learned that the car driven by the shooter was a yellow Mitsubishi Lancer. From his research, McDaniel learned that a yellow Lancer was registered at an address in the general area of the shooting and that appellant had previously been issued a traffic ticket in the yellow Lancer.

At approximately 4:30 p.m. on January 26, 2005, McDaniel and his partner, HPD Sergeant D. Ferguson, drove to the address to investigate whether the car was still associated with that address. The lot in question was approximately eighty or one-hundred “yards deep” and “[tjhere were at least two houses sitting on that lot.” McDaniel described the house in front as a “single story ranch style house.” From inside a car parked on the street, McDaniel noticed a yellow car backed into a “carport or a stable” approximately seventy to seventy-five yards away in the back northwest part of the property. A blue tarp covered part of the windshield and hood, with the driver’s side front fender, window, and door partially visible. After seeing the car, McDaniel and his partner notified investigators from the sheriffs office and left the scene to obtain binoculars and night vision goggles “to be able to look at the residence better.” Upon their return at 6:00 p.m., McDaniel was not able to get a good view of the car because it was dark outside and there was a glare from a light on a neighbor’s property.

After sheriffs deputies arrived, the officers decided to knock on the door of the front house in an attempt to locate the resident and to obtain permission to go onto the property to see if the car “was the right vehicle.” Along with McDaniel and his partner, two sheriffs homicide investigators and two patrol deputies walked down the driveway to the front door of the house. No one answered their knock, but they saw that lights were on in the second house and it appeared to be occupied. Although McDaniel did not specifically recall whether he had noticed the second house from the street, it was clearly visible as the officers approached the house in front. They approached the second house to knock on the door and hopefully find someone present to consent to their examination of the car. As the officers walked down the driveway to the second house, McDaniel, from approximately thirty to thirty-five feet away, saw that the driver’s side window was broken out of the yellow car. McDaniel explained that he never got closer to the car than this thirty to thirty-five foot distance. He also stated that one of the sheriffs deputies saw a handgun lying on the seat of a truck parked directly in front of the second house. At that time, the officers decided to leave the property and obtain a search warrant.

McDaniel further testified that he did not see any “no trespassing” signs and that the officers “did not go through a gate” to get to the second house. Although he did not remember a gate, there “might have been” one closer to the second house. McDaniel explained that it became unnecessary to knock on the door of the second house after the officers had identified two pieces of evidence that they felt provided probable cause to secure a search warrant. After obtaining a search warrant, McDaniel returned to the second house around midnight.

Detective Holtke testified at the hearing that when the officers executed the search warrant, Felicia Gonzales answered the door at the second house and appellant was inside the house. Holtke explained that although the officers did not cross through a fence to get onto the property, the back house was gated, with a truck parked outside the fence. To get to the front door of the second house, the officers had to pass by the truck and then go through an unlocked gate.

Pamela Porteous, appellant’s grandmother, testified that at the time of the shooting, she was living in the front house on the property and appellant, his parents, and a sibling lived in the back house on the property. She explained that the two houses shared one mailbox, the rear house did not have its own mailbox, and there was not a “½” address mark identifying the rear house. Ms. Porteous also explained that the driveway to the second house is “private property” and that appellant and his family had an easement to use the driveway. She stated that there is no lighting from neighboring homes that would illuminate the area in back of the front house. Moreover, a ten-foot tall chain-link fence, with barbed wire on top, “encompasses [her] whole house,” and a five or six-foot fence encompasses the rear house. She noted that the gate to the second house is “[cjlosed and most of the time locked because [her] dog knows how to open it.” However, she did not know whether the gate was locked in January 2005.

At the conclusion of the hearing, the trial court denied appellant’s motion to suppress.

Motion to Suppress Evidence

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence “found by police officers who trespassed onto private property in order to obtain evidence supporting the request for a search warrant” because “the officers had to enter through a ten-foot chain link fence in order to go onto the property at all.” He asserts that the fence “gave notice, even without signs, that the property was not open to the public” and, “[o]nce on the property, officers had no justification for going to the house in back, because it was completely fenced off, with a closed and locked gate.” Appellant also argues that the officers engaged in an illegal search because “after entering the property, the officers veered off the path to the second house ... to look at the yellow car.”

In response, the State asserts that the police officers “legitimately entered the property by the usual route with the intention of knocking on [a]ppellant’s front door and observed the evidence in plain view.” The State notes that “no sign, fence or gate demonstrated that [a]ppellant intended to keep the [second house] private and protected from entry.”

Our standard for reviewing a trial court’s ruling on a motion to suppress evidence is bifurcated; we give almost total deference to a trial court’s determination of historical facts and review de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). In reviewing a ruling on a question of the application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses’ credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

The Fourth Amendment of the United States Constitution and section I, article 9 of the Texas Constitution protect against unreasonable searches and seizures. Atkins v. State, 882 S.W.2d 910, 912 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). This protection includes a home and the curtilage of the home as well. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984); see also Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979); Atkins, 882 S.W.2d at 912. Whether a particular area is included within the curtilage of a home is determined by whether a defendant had a reasonable expectation of privacy in the area. Bower v. State, 769 S.W.2d 887, 896 (Tex.Crim.App.1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 (Tex.Crim.App.1991); Atkins, 882 S.W.2d at 912. Factors considered are the proximity of the area to the home; whether the area is included within an enclosure surrounding the home; the nature of the use to which the area is put; and the steps taken to protect the area from observation by a passerby. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987); Atkins, 882 S.W.2d at 912. There is no reasonable expectation of privacy if the activity viewed by an officer is visible from the street or the curtilage is open to the public. Bower, 769 S.W.2d at 897; Atkins, 882 S.W.2d at 912.

In support of his argument that the officers’ entry onto the property was “unjustified and illegal,” appellant relies on Gonzalez v. State, 588 S.W.2d 355 (Tex. Crim.App.1979) and Livingston v. State, 731 S.W.2d 744 (Tex.App.Beaumont 1987, pet. ref'd). Both cases are readily distinguishable from the instant case. In Gonzalez, two game wardens went to the front door of a residence, then went to the back door of the residence to knock and determine if anyone was home. 588 S.W.2d at 357. After receiving no answer at the back door, the wardens began “to just look around the place” for evidence of game violations. Id. Although they found no game violations, the wardens found marijuana present on the premises. Id. This searching, rather than returning to their car, made it an illegal warrantless search. Id. at 359-60.

In Livingston, a private citizen, the owner of a wrecking yard that had been burglarized, contacted a sheriffs deputy to approach the defendant for questioning. 731 S.W.2d at 745. The private citizen met with the deputy in front of the defendant’s mobile home. Id. While the deputy remained in his car, after recognizing a stolen tire and wheel, the private citizen knocked on the door and received no answer. Id. As he was leaving, he noticed a tailgate leaning against an open wooden shed that was attached to the end of the mobile home. Id. He approached the shed and, by looking through an opening, discovered more property. Id. Along with two deputies, the private citizen went into the shed, and they also examined a truck nearby. Id. The court held that these activities, including entering the shed, constituted an illegal search and seizure. Id. at 747.

More on point is Long v. State, 532 S.W.2d 591 (Tex.Crim.App.1976). In Long, a sheriff had gone to a rural residence to investigate reports of several suspicious airplane flights from the defendant’s property. Id. at 592-93. The sheriff parked in the driveway of the residence and went to the front door and knocked. Id. After no one answered his knock at the front door, he proceeded to the rear of the home to knock at the back door and again received no answer. Id. at 593. As he continued around the house intending to return to his car, the sheriff smelled marijuana coming from an open window. Id. This information was used to obtain a search warrant. Id. The court held that the attempt to contact the inhabitants of the house was not a search impli-eating Fourth Amendment considerations. Id. at 595.

Here, in plain view from the street, police officers saw a yellow Mitsubishi Lancer parked in the driveway on the property. As in Long, the officers went to the first house on the property and knocked on the front door in the hope of finding a resident present to consent to an examination of the car. After receiving no answer at the front door of the first house on the property, the officers saw lights on in the second house and proceeded to approach it to locate a resident. As they walked toward the second house, the officers noticed that the driver’s side window had been broken out. Another officer noticed a gun in the seat of a truck parked in front of the fence surrounding the second house. At this point, the officers decided to leave the property in order to secure a search warrant. Although Pamela Porteous testified that a gate to the fence encompassing the rear property is typically closed and locked, McDaniel stated that there were no “no trespassing” signs on the property. The witnesses disputed whether the officers would have had to unlock or open a gate in order to gain access to the second house. Additionally, the witnesses disputed whether the officers would have had to veer off the path to the second home in order to observe the car. Nevertheless, McDaniel testified that he saw that the driver’s side window of the yellow car was broken out and he never got closer than thirty to thirty-five feet to the car.

. Viewing the evidence in the light most favorable to the trial court’s ruling, the trial court could have reasonably concluded that the officers approached the front door of the front house, saw lights on at the second house, and as they were lawfully proceeding to the second house, noticed the shattered window on appellant’s car. Accordingly, we hold that the officers did not conduct a search impheating the Fourth Amendment or article I, section 9 of the Texas Constitution.

We overrule appellant’s first point of error.

Self-Defense

In his second point of error, appellant argues that because there was “testimony that appellant was afraid that Officer Pinkerton was going to shoot him,” the trial court erred in instructing the jury that self-defense “was only an available defense if [ajppellant did not know that the person he was shooting at was a police officer.” The trial court instructed the jury that it could find appellant guilty of one of four offenses: (1) attempted capital murder of a peace officer; (2) aggravated assault of a public servant; (3) attempted murder; or (4) aggravated assault. The trial court further instructed the jury on the issue of self-defense for the offenses of attempted murder and aggravated assault. However, it denied appellant’s request for a self-defense instruction for the offenses of attempted capital murder of a peace officer and aggravated assault of a public servant. Appellant asserts that because the evidence “raised the possibility that [ajppellant thought the officer’s use of force was excessive,” the trial court should have also instructed the jury on the issue of self-defense in regard to attempted capital murder of a peace officer and aggravated assault of a public servant.

A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence be strong, feeble, unimpeached, or contradicted. Walker v. State, 994 S.W.2d 199, 201 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). However, the right to use self-defense against a police officer who is attempting to effect an arrest is limited. See Tex. Pen.Code Ann. § 9.31 (Vernon 2003); Walker, 994 S.W.2d at 202.

Section 9.31 of the Texas Penal Code provides that the use of force against another is not justified “to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c).” Tex. Pen.Code Ann. § 9.31(b)(2). Specifically, subsection (c) provides that the use of force to resist an arrest or search is justified,

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

Id. § 9.31(c). Under this statute, a defendant must show greater force than necessary on the part of the police officer before the justification of self-defense is applicable. See Walken 994 S.W.2d at 202. Thus, to be entitled to an instruction on self-defense when resisting an arrest or search that a defendant knows is being made by a peace officer, there must be some evidence in the record to raise the issue of whether the peace officer used or attempted to use greater force than necessary in attempting to arrest or search the defendant. See id.

Here, Officer Pinkerton approached appellant’s car in a semi-circle, so that he came around the car from front to back and then proceeded to the front on the driver’s side. Pinkerton shouted “Houston Police” and instructed appellant to show his hands. After appellant did not respond, Pinkerton pulled out his firearm in the “low ready position,” also referred to as the “bladed position.” As Pinkerton issued verbal commands, appellant shot Pinkerton three times through the driver’s side window of his car. After Pinkerton fell to the ground, appellant fled the scene. Although Felicia Gonzales testified that appellant told her that he was afraid that Pinkerton was going to shoot him, appellant presented no evidence that Pinkerton used greater. force than necessary to arrest appellant. In fact, although Pinkerton, who was in his HPD uniform, drew his firearm, he did not use it. See id. One may not assume that the threatened use of force by a peace officer will become more than a threat or that the use of such force will be greater than necessary to effect an arrest. See id. Here, appellant, after possibly hitting Officer Pinkerton’s Explorer with his car, leading Pinkerton on a high speed chase, running two red lights, and refusing to obey Pinkerton’s commands to show his hands, has not demonstrated that Pinkerton, in drawing his firearm, used greater force than necessary to arrest appellant.

Accordingly, we hold that the trial court did not err in denying appellant’s request to instruct the jury on the law of self-defense in regard to the offenses of attempted capital murder of a peace officer and aggravated assault of a public servant.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court. 
      
      . See Tex. Pen.Code Ann. § 15.01(a) (Vernon 2003), § 19.03(a)(1) (Vernon Supp.2006).
     
      
      . See U.S. Const, amend. IV.
     
      
      . See Tex. Const. art. I, § 9.
     
      
      . See Tex. Pen.Code Ann. § 15.01(a) (Vernon 2003), § 22.02 (Vernon Supp.2006).
     