Rita Faye Riddle v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-273-CR

RITA FAYE RIDDLE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 930064 CR2

O P I N I O N

A jury found Rita Faye Riddle guilty of misdemeanor theft. Punishment was assessed by the court at 90 days in jail, probated for one year, and a $1,500 fine with all but $150 probated. In a single point of error, Riddle complains that the trial court erred in admitting evidence obtained from a warrantless search of her purse in violation of her rights under the Fourth Amendment to the United States Constitution and Article I, Section 9, of the Texas Constitution. We will affirm.

Prior to her arrest, Riddle was observed by a Sears' security officer on video monitors while she got a shopping bag from her purse and placed four pairs of jeans into it. The security officer then observed Riddle as she appeared to be leaving the store without paying for the merchandise, but she turned back and obtained a cash refund on one of the pairs of jeans. After getting the cash refund, Riddle exited the store and was immediately detained by a security officer and taken to the store's Loss Prevention Office where the police were notified.

Officer Ruiz of the Waco Police Department responded to the call and, after viewing the videotape showing Riddle's activities while in the store, Ruiz placed her under arrest and gave her the Miranda warning. According to Officer Ruiz, Riddle was very evasive during questioning about where she lived. During the questioning, Riddle started to reach into her purse. At that point, Officer Ruiz instructed her to "leave everything the way it was and hand the purse to me." Upon searching the purse, Ruiz found numerous envelopes, shopping bags from various stores, and over $800 in cash.

Riddle filed a motion to suppress, among other things, the contents of her purse. The motion was overruled with respect to the contents of her purse. The standard of review governing a trial court's ruling on a motion to suppress is whether the court clearly abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). The trial judge is the sole fact finder at a hearing on a motion to suppress and, as such, the judge may believe or disbelieve all or any part of any witness' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. [Panel Op.] 1980). Because the trial court is the sole trier of fact at a hearing on a motion to suppress, any finding supported by the record will not be disturbed. Green v. State, 615 S.W.2d 700, 707 (Tex. Crim. App.[Panel Op.] 1980), cert. denied, 454 U.S. 952, 102 S. Ct. 490, 70 L. Ed. 2d 258 (1981). Here, after Officer Ruiz reviewed the video tape depicting Riddle's activities while in the store, he placed Riddle under arrest. The video had depicted Riddle as using the purse during the course of her taking the blue jeans. Searches incident to lawful arrest have been found reasonable. See U.S. v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969). A search incident to arrest may be of the arrestee's person as well as any personal property immediately associated with the person. Chadwick, 433 U.S. at 15, 97 S. Ct. at 2485. Under the evidence, the Court could have found the search was reasonable as incident to a lawful arrest.

Riddle contends that the search of her purse incident to her arrest was unlawful because, at the time of her arrest, the purse was not immediately associated with her person. The evidence revealed that Riddle was in possession of the purse during the course of the alleged theft of the blue jeans and that she used the purse as an implement to carry items that were used in the commission of the offense.

She further contends that the purse was more like a backpack or duffle bag, and therefore should be characterized as luggage, which may not be searched without a warrant. The purse was introduced into evidence as State's Exhibit 9. It is an unobtrusive, small black "clutch" type purse with a shoulder strap. The purse in no way resembles a backpack or duffle bag, but is more like a purse you would see a lady carry with her to church. Even if the purse was a large bag-type, Texas courts have characterized backpacks and airline shoulder bags as items immediately associated with the person. See Farb v. State, 634 S.W.2d 14, 15 (Tex. App. Beaumont 1982, no pet.); Lalande v. State, 651 S.W.2d 402, 405 (Tex. App. El Paso 1983, aff'd on pet. for disc. rev.), 676 S.W.2d 115. Accordingly, we find no constitutional violations, and we hold that the court did not err in admitting the purse and its contents into evidence.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas.

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 21, 1994

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