### No. 13

- 14

- 200 -CR

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI 

### 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 APPEA L)

Christopher L. Morrell State Bar No. 24077383 Assistant District Attorney 105 th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888

- 0410 (361) 888

- 0700 (fax)

c hristopher.morrell@co.nueces.tx.us
Attorney for Appellan t
ORAL ARGUMENT IS REQUESTED ACCEPTED 13-14-00200-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/10/2015 12:15:13 PM DORIAN RAMIREZ

CLERKIDENTITY 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

- 0 410 (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)

c hristoph er.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

iAppellee’s Appellate Attorney: Stephen W. Byrne State Bar No. 24050365 302 Rosebud Ave, Corpus Christi, TX 78404 (361) 877

- 2099 byrne.attorney@gmail.com

iiTABLE OF CONTENTS

IDEN TITY 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 def endant’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 S earch Rhonda Rombs’ Wallet

. ................................ ................................ ................................ ... 3

PRAYER

................................ ................................ ................................ .......... 6

RULE 9.4(i) CERTIFICATION

................................ ................................ ...... 7

CERTIF ICATE OF SERVICE

................................ ................................ ........ 7

iiiINDEX 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 (5 th 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 (5 th Cir. 2003).

.............. 4

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

................................ .. 4

Statutes & Rules

T EX . C ODE C RIM . P ROC . 44.01(a)(5 ).

................................ ........................ 3

ivNO. 13

- 14

- 200

- CR

THE STATE OF TEXAS, § COURT OF APPEALS Appellant, § § V. § FOR THE THIRTEENTH § R HONDA R OMBS, § 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 conclusi ons of law were filed by the trial court (Supp. CR p.

6

- 9).

ISSUES PRESENTED

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

1STATEMENT 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 minde d if I took a look in her

purse ” (Supp. CR p. 5). The officer stated t hat 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 look ing 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 f ound 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).

2SUMMARY OF THE ARGUMENT
The trial court erred in granting defendant’s motion to suppress because the
officer expressly had consent to s earch 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 Procedur e. See T EX . C ODE C RIM . P ROC . 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 S earch 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)

.

3With regard to vehicle searches, i f 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

(5 th 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 l imit 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 (8 th 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 (5 th Cir. 2003).
In the present cas e, 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,

4whereas the open space in the purse i s 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 protestatio n 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 f ound
within the container which are pertinent to the investigation being conducted )

. In
the present c ase, O fficer Durbin was searching for possible drugs which could be
the cause for the appea rance 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 usual ly 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

5searches into games of “Mothe r

- 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 wall et 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. M orrell 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

6RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Pro cedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters li sted in Rule

9.4(i)(1), is 1 ,0 7 6

.

/s/ 

### Christopher L. Morrell Christopher L. Morrell

CERTIFICATE OF SERVICE

This is to certify that a copy of this brief was e mailed this 10th day of
February , 201 5 , to Appellee’s attorney, Stephen W. Byrne , at his email of
byrne.attorney@gmail.com.

/s/ 

### Christopher L. Morrell Christopher L. Morrell

7