                                                                            ACCEPTED
                                                                       13-14-00200-CR
                                                         THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                 2/10/2015 12:15:13 PM
                                                                      DORIAN RAMIREZ
                                                                                CLERK




               No. 13-14-200-CR
                                         FILED IN
                                 13th COURT OF APPEALS
          IN THE COURT OF APPEALS
                              CORPUS CHRISTI/EDINBURG, TEXAS
  FOR   THE THIRTEENTH DISTRICT OF  TEXAS
                                 2/10/2015 12:15:13 PM
              AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                          Clerk
           THE STATE OF TEXAS,
               APPELLANT

                        v.

              RHONDA ROMBS,
                APPELLEE.

ON APPEAL FROM COUNTY COURT AT LAW NO. 2
          NUECES COUNTY, TEXAS


            APPELLANT’S BRIEF
             (STATE’S APPEAL)


                   Christopher L. Morrell
                   State Bar No. 24077383
                   Assistant District Attorney
                   105th Judicial District of Texas
                   901 Leopard, Room 206
                   Corpus Christi, Texas 78401
                   (361) 888-0410
                   (361) 888-0700 (fax)
                   christopher.morrell@co.nueces.tx.us

                   Attorney for Appellant

     ORAL ARGUMENT IS REQUESTED
             IDENTITY OF PARTIES AND ATTORNEYS
State’s Trial Attorney:
       Matthew S. Manning
       State Bar No. 24075847
       Assistant District Attorney
       105th Judicial District of Texas
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       (361) 888-0399 (fax)
       matthew.manning@co.nueces.tx.us


State’s Appellate Attorney:
       Christopher L. Morrell
       State Bar No. 24077383
       Assistant District Attorney
       901 Leopard, Room 206
       Corpus Christi, Texas 78401
       (361) 888-0410
       (361) 888-0700 (fax)
       christopher.morrell@co.nueces.tx.us
Appellee:
     Rhonda Rombs
     7613 Baykal, Corpus Christi, TX 78411
     361-290-9456

Appellee’s Trial Attorney:
     Constance A. Luedicke
     State Bar No. 12673300
     5262 S. Staples St., Ste. 250, Corpus Christi, TX 78411
     (361) 883-0838
     cluedicke@sbcglobal.net




                                     i
Appellee’s Appellate Attorney:
     Stephen W. Byrne
     State Bar No. 24050365
     302 Rosebud Ave, Corpus Christi, TX 78404
     (361) 877-2099
     byrne.attorney@gmail.com




                                 ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ............................................. i

INDEX OF AUTHORITIES ......................................................................... iv

STATEMENT OF THE CASE .......................................................................1

ISSUES PRESENTED ....................................................................................1

                                         Ground of Error
The trial court erred by granting defendant’s motion to suppress, and
specifically, in concluding that Officer Durbin lacked consent to search
the wallet. ........................................................................................................1

STATEMENT OF FACTS ..............................................................................2

SUMMARY OF THE ARGUMENT ..............................................................3

ARGUMENT ...................................................................................................3

         I. Appellate Jurisdiction......................................................................3
         II. Appellate Standard of Review.......................................................3
         III. Officer Durbin Had Consent to Search Rhonda Rombs’
         Wallet. ...................................................................................................3
PRAYER ..........................................................................................................6

RULE 9.4(i) CERTIFICATION ......................................................................7

CERTIFICATE OF SERVICE ........................................................................7




                                                         iii
                             INDEX OF AUTHORITIES

                                            Cases

Amador v. State, 221 S. W.3d 666 (Tex. Crim. App. 2007). ..........................3

United States v. Battista, 876 F.2d 201 (D.C.Cir.1989). .................................5

United States v. Crain, 33 F.3d 480 (5th Cir. 1994).........................................4

Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801 (1991). .......................... 3, 4

Heald v. State, 492 N.E.2d 671 (Ind. 1986). ...................................................5

Lemons v. State, 298 S.W.3d 658 (Tex. App.-Tyler 2009, pet. ref’d). ...........4

United States v. Mendoza—Gonzalez, 318 F.3d 663 (5th Cir. 2003). ..............4

United States v. Stapleton, 10 F.3d 582 (8th Cir. 1993). ..................................4

                                    Statutes & Rules

TEX. CODE CRIM. PROC. 44.01(a)(5). ........................................................3




                                               iv
                               NO. 13-14-200-CR

THE STATE OF TEXAS,                  §       COURT OF APPEALS
         Appellant,                  §
                                     §
V.                                   §       FOR THE THIRTEENTH
                                     §
RHONDA ROMBS,                        §
        Appellee.                    §       DISTRICT OF TEXAS

                               APPELLANT’S BRIEF
                                (STATE’S APPEAL)

TO THE HONORABLE COURT OF APPEALS:

                        STATEMENT OF THE CASE

        Rhonda Rombs was charged with possession of a dangerous drug by

information on July 7, 2012 (CR p. 4). She filed a motion to suppress challenging

the search which revealed the drug in question (CR p. 27), which the court granted

(CR p. 28). The State filed a timely notice of appeal from this order (CR p. 29),

and a timely request for findings of fact and conclusions of law (CR p. 32).

Findings of fact and conclusions of law were filed by the trial court (Supp. CR p.

6-9).

                             ISSUES PRESENTED

                               Ground of Error
      The trial court erred by granting defendant’s motion to suppress, and
specifically, in concluding that Officer Durbin lacked consent to search the
wallet.




                                         1
                           STATEMENT OF FACTS

      On July 7, 2012, Officer Chance Durbin with the Corpus Christi Police

Department was patrolling the area of Yorktown and Everhart streets when he

observed two subjects, a female and a male, sitting outside a Stripes store (Supp.

CR p. 4). The officer noticed that the female was crying and he wanted to

investigate further to see if she was involved in a disturbance and to check the

welfare of both of them (Supp. CR p. 4). As the officer approached appellee, he

observed that she was actively crying, that her eyes were red, bloodshot, and that

she was slurring her words (Supp. CR p. 4).

      Officer Durbin asked appellee what was going on and she advised that she

was having a disturbance with her mother and that she and her roommate left that

location and walked to the Stripes store (Supp. CR p. 5). The officer observed a

purse sitting next to appellee and asked her, “If she minded if I took a look in her

purse” (Supp. CR p. 5). The officer stated that in response to his request, she said,

“Go ahead. I don’t mind” (Supp. CR p. 5). The officer picked up the purse and

started looking through it and searching it (Supp. CR p. 5). Inside the purse, the

officer found a closed woman’s wallet (Supp. CR p. 5). The officer opened the

closed pocket of the wallet and found two and a half white pills (Supp. CR p. 5).

At no point when officer Durbin was searching in the purse did Ms. Rombs rescind

her consent (RR p. 9).


                                          2
                       SUMMARY OF THE ARGUMENT

      The trial court erred in granting defendant’s motion to suppress because the

officer expressly had consent to search the contents of the purse, which included

the wallet within that purse.

                                     ARGUMENT
                                I. Appellate Jurisdiction.

   The State is permitted to appeal the trial court’s order in this case under the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. 44.01(a)(5).

                        II. Appellate Standard of Review.

   A trial court’s ruling on a motion to suppress evidence is reviewed on appeal

under a bifurcated standard of review. Amador v. State, 221 S. W.3d 666, 673

(Tex. Crim. App. 2007). Almost total deference is accorded to a trial court’s

determination of the facts that the record supports. Id. When applying the law to

the facts, appellate courts review the trial court’s ruling on those questions de

novo. Id.

   III. Officer Durbin Had Consent to Search Rhonda Rombs’ Wallet.

      “The standard for measuring the scope of a suspect's consent under the

Fourth Amendment is that of “objective” reasonableness-what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801 (1991).


                                            3
      With regard to vehicle searches, if an officer makes a general request to

search and the individual consents, knowing that there are unlocked containers in

the car, the individual should expressly limit his consent to the vehicle but not the

containers or, at the very least, object when the officer begins to open the

container. See Jimeno, 500 U.S. at 251; United States v. Crain, 33 F.3d 480, 484

(5th Cir. 1994); see also Lemons v. State, 298 S.W.3d 658, 661 (Tex. App.-Tyler

2009, pet. ref’d). Of course, a person is free to limit the scope of the consent that

he gives, Jimeno, 500 U.S. at 252, but a person’s silence in the face of an officer’s

further actions may imply consent to that further action.          United States v.

Stapleton, 10 F.3d 582, 584 (8th Cir. 1993). Furthermore, “[i]f the consent to

search is entirely open-ended, a reasonable person would have no cause to believe

that the search will be limited in some way.”         United States v. Mendoza—

Gonzalez, 318 F.3d 663, 670 (5th Cir. 2003).

      In the present case, at no time was Rhonda Rombs’s consent limited, and she

freely gave the officer consent to search her purse. There is no tangible difference

between allowing consent to search a purse and to search a wallet located inside

that purse. Common expectations of privacy indicate that a person has the same

general privacy interest in the things she puts in both her purse as in her wallet.

The wallet is simply a more convenient way to organize and carry money, driver’s

license, credit cards and like objects, generally financial or for identification,


                                          4
whereas the open space in the purse is more suited to bulky items that would not fit

in the wallet. Because both have the same general degree of expectation of

privacy, permission to go into the purse would include permission to enter the

wallet as well, absent some protestation at the time by the person giving

permission or some lock on the wallet that would prevent easy access.

   In other jurisdictions, similar searches have been upheld. See United States v.

Battista, 876 F.2d 201 (D.C.Cir.1989); Heald v. State, 492 N.E.2d 671, 680 (Ind.

1986) (consent to search a container operates as a consent to search items found

within the container which are pertinent to the investigation being conducted). In

the present case, Officer Durbin was searching for possible drugs which could be

the cause for the appearance of Rhonda’s intoxicated state. The drugs could and

were found inside the wallet.

      Also, the analysis applicable to luggage search cases is very helpful to

determine the appropriateness of the search. Similar to the present case, luggage

cases usually have health and hygiene products which are closed containers found

inside luggage. A reasonable person who consents to a search of one of his bags

would not expect the officer to repeat his request for consent before examining

each new item encountered in the bag. See United States v. Battista, 876 F.2d 201

(D.C.Cir.1989) (holding that consent to search luggage included consent to search

several plastic bags contained therein and stating that the court refuses to turn such


                                          5
searches into games of “Mother-may-I”).            That approach would be unduly

burdensome, and inconsistent with the objective reasonableness standard

established by the Supreme Court in Jimeno.

   Officer Durbin searched a closed wallet located inside Rhonda Rombs’s purse.

He should not have to ask again if he can search Ms. Rombs’ wallet because she

had already given consent to search her purse.

                                       PRAYER

      For the foregoing reasons, the State respectfully requests that the Court of

Appeals order of the trial court to vacate its order granting the motion to suppress,

and for all other relief to which the State shows itself justly entitled.



                                  Respectfully Submitted,

                                  /s/ Christopher L. Morrell
                                  Christopher L. Morrell
                                  State Bar No. 24077383
                                  Assistant District Attorney
                                  901 Leopard, Room 206
                                  Corpus Christi, Texas 78401
                                  (361) 888-0410
                                  (361) 888-0700 (fax)
                                  christopher.morrell@co.nueces.tx.us




                                            6
                         RULE 9.4 (i) CERTIFICATION

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this brief, excluding those matters listed in Rule

9.4(i)(1), is 1,076.

                                 /s/ Christopher L. Morrell
                                 Christopher L. Morrell




                          CERTIFICATE OF SERVICE


       This is to certify that a copy of this brief was emailed this 10th day of

February, 2015, to Appellee’s attorney, Stephen W. Byrne, at his email of

byrne.attorney@gmail.com.

                                 /s/ Christopher L. Morrell
                                 Christopher L. Morrell




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