Berthenia Williams Hall v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00444-CR

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BERTHENIA WILLIAMS HALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 987,670

M E M O R A N D U M O P I N I O N

Appellant, Berthenia Williams Hall, was convicted by a jury of the felony offense of being in possession of cocaine. Her punishment was enhanced with two prior felony convictions, and the jury assessed appellant=s punishment at thirty-five years in the state penitentiary. In one point of error, appellant contends the trial court abused its discretion by overruling her motion to suppress evidence seized pursuant to a warrantless search of her purse. We affirm.

According to testimony elicited at the pretrial hearing on appellant=s motion to suppress, Deputy Raymond Parker was dispatched to a TJ Maxx store in Harris County, Texas. Upon his arrival, Deputy Parker observed two officers detaining appellant and another female, Margaret Florence. Deputy Parker spoke with Jamar Hayes, a loss prevention officer for the store, and Mark Zeno, another witness. Hayes advised Deputy Parker that he witnessed appellant and Florence stealing shirts from the store. Hayes also said appellant then ran to a Mitsubishi Galant with the merchandise and started the car. Deputy Parker spoke with appellant and requested her identification. Appellant responded she had no identification, but identified the Galant as her vehicle.

After speaking with appellant, Deputy Parker looked in the window of the Galant and observed purses and clothing on the backseat with price tags attached. He retrieved a purse from the back floorboard and opened it, finding appellant=s identification along with two clear baggies containing a cream-colored substance that later tested positive for cocaine. Deputy Parker then arrested appellant on charges of robbery and possession of cocaine. He also testified that pursuant to a lawful arrest, it is police policy to impound the vehicle and complete an inventory for safety and security purposes.

Appellant filed a motion to suppress the cocaine seized from her purse, claiming the search and seizure were unreasonable and violated the Fourth and Fourteenth Amendments of the United States Constitution as well as Article I, Section 9 of the Texas Constitution. Specifically, appellant claimed the search was not justified by probable cause to arrest, by consent to search, or by a warrant. The State countered that the resulting search was incident to a lawful arrest as well as a routine inventory search of the vehicle. because Deputy Parker had probable cause to arrest appellant for robbery. The trial court denied appellant=s motion to suppress.

In her sole point of error, appellant contends the trial court abused its discretion by denying her motion to suppress. When reviewing a trial court=s ruling on a motion to suppress, we will reverse only for an abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). The trial court is the sole trier of fact, therefore, we must view the evidence in a light most favorable to the trial court=s ruling, giving almost total deference to the trial court=s determination of facts dependent upon credibility and demeanor. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We review de novo any mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). As a result, we must sustain the trial court=s decision if the ruling is correct on any theory of law reasonably applicable to the case and supported by the record. Id.

Although police officers generally must have a warrant to arrest, arrests outside the home are constitutionally valid if they are supported by probable cause. Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996) (citing New York v. Harris, 495 U.S. 14, 18 (1990)). Probable cause to arrest exists where police have reasonably trustworthy information warranting a reasonable person to believe that a person has committed or is committing a crime. McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003). Anything a person knowingly exposes to the public is not within the zone of privacy subject to Fourth Amendment protection. Katz v. U.S., 389 U.S. 347, 351(1967); see also Rodriguez v. State, 653 S.W.2d 305, 307 n.4 (Tex. Crim. App. 1983). This plain view doctrine provides an exception to the general warrant requirement: If law enforcement officials have a right to be where they are, and it is immediately apparent that the item seized constitutes evidence of criminal activity, its seizure is legal. Ford v. State, 179 S.W.3d 203, 211 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

Here, Deputy Parker corroborated information from both the complainant, Hayes, and the witness, Zeno, that appellant stole merchandise, ran to her vehicle, threw the stolen goods in the backseat, and got into the driver=s seat. Appellant identified her vehicle to Deputy Parker, and he observed suspicious clothing with tags attached in plain view through the car window. We find probable cause existed to arrest appellant.

Once an officer has probable cause to arrest, he may contemporaneously search the passenger compartment and any containers within the vehicle incident to that arrest. Williams v. State, 726 S.W.2d 99, 100_101 (Tex. Crim. App. 1986) (citing New York v. Belton, 453 U.S. 454, 460 (1981)). A Acontemporaneous@ search may take place immediately before or after the arrest, as long as probable cause to arrest is established before the search is conducted. See id. (finding probable cause to arrest driver justified search of bag on floorboard of vehicle, even though search occurred prior to arrest). A peace officer may search the vehicle even after the arrestee has been removed. Strong v. State, 138 S.W.3d 546, 555 (Tex. App._Corpus Christi 2004, no pet.) (citing Thornton v. United States, 541 U.S. 615, 621B22 (2004)).

Accordingly, Deputy Parker was justified in searching appellant=s vehicle incident to her arrest, regardless of whether he conducted the search before or after the arrest, or whether appellant was inside the vehicle. His subjective intent when conducting the search is irrelevant to the validity of a search incident to a lawful arrest, as long as it is contemporaneous to that arrest. Williams, 726 S.W.2d at 101. We find this search was valid pursuant to a lawful arrest.

Although further analysis is not necessary to determine the validity of the search, we note here that the search was also valid based on the automobile exception to the search warrant requirement. This exception allows an officer with probable cause to conduct a warrantless search of a vehicle that contains evidence of a crime. Miller v. State, 11 S.W.3d 345, 348 (Tex. App._Houston [14th Dist.] 1999, pet. ref=d). The justifications for a warrantless search of an automobile based on probable include both the mobile nature of vehicles and a reduced expectation of privacy in vehicles. Liffick v. State, 167 S.W.3d 518, 521 (Tex. App._Houston [14th Dist.] 2005, no pet.) (citing California v. Carney, 471 U.S. 386, 390B91 (1985)). As described above, Deputy Parker established probable cause to search appellant=s vehicle and any containers that could reasonably contain evidence of the robbery. The search was also justified under the automobile exception.[1]

We find the search and seizure at issue were valid and the trial court did not abuse its discretion in denying appellant=s motion to suppress. The trial court=s judgment is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Although we recognize appellant also argues the search is invalid under the inventory exception, we do not address that argument because we affirm the trial court=s judgment on other theories, addressed above.