Rita Faye Riddle v. State ( 1994 )

Riddle v. State

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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irect evidence establishes that she was intoxicated at the time she was allegedly operating a vehicle in a public place.  However, we must use a totality of the circumstances approach to determine whether Bailey was operating her motor vehicle while intoxicated.

Nichols was the first person to encounter Bailey in the ditch.  Nichols testified that she found Bailey behind the wheel of her vehicle with her seatbelt on and the car running.  She found that Bailey was not alert, verbally non-responsive, and drooling.  Being EMT trained, Nichols took Bailey’s vital signs, including pulse and blood pressure, which she found to be stable, and called 9-1-1 for medical help.  She also testified that while she waited with Bailey the car was running and that one of the first responders later turned it off.

Jack Terry, a firefighter EMT, arrived on the scene and witnessed the front end of Bailey’s car in a ditch.  He checked the vehicle for damage, and testified that when he arrived the vehicle was not running and he did not remember if Bailey was wearing her seatbelt.  Bailey was responsive but her speech was slurred.  Bailey also told him that she had taken three Soma earlier in the day.

Here, the evidence established that on the date of the offense Bailey was found disoriented inside her vehicle.  The vehicle was sitting partly in a ditch with the engine running.  Several witnesses testified that Bailey spoke with slurred speech and that they saw several prescription pill bottles in the passenger seat of the vehicle.  Corporal Jeter administered three sobriety tests all indicating that Bailey was intoxicated.  Lastly, Bailey admitted to Terry that she had consumed prescription medications that day.

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Bailey operated her vehicle.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Herrin v. State, 125 S.W.3d 436, 439 (Tex. Crim. App. 2002).  Viewing the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Bailey operated her vehicle.  See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).  Furthermore, Texas courts have upheld driving under the influence convictions when the driver is found in a vehicle in a ditch with the operator alone behind the steering wheel.  See Reynolds v. State, 744 S.W.2d 156, 158-59 (Tex. App.—Amarillo 1987, writ ref’d).  Accordingly, the evidence that she did so is legally and factually sufficient.  Therefore, we overrule Bailey's first and second issues.

Hearsay Evidence

In her final issue, Bailey argues that the trial court abused its discretion by allowing witnesses to recall the names on the prescription pill bottles found in her car.  Specifically she argues that the labels on the pill bottles could serves as proof of the contents of the pill bottles thereby making them hearsay evidence.  The State replies that the testimony regarding the labels does not constitute hearsay because the statements were not being offered for their truth.  We agree.

We review a trial court's admission or exclusion of evidence for abuse of discretion.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).  “A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.”  Id.

At trial, Jeter testified over objection to the names of all the pills found in Bailey’s car.  When Jeter attempted to explain common names for the various prescriptions, the trial court properly limited his testimony to the labels he observed on the pill bottles.  The testimony was as follows:

[Q]:  So you weren’t trying to prevent her from going to the hospital.

 

[A]: No. She had ample time to go to the hospital.  I just believe it was to the point in time where the reality set in that she was going to go—with the handcuffs and she was going to go to jail.  She wanted a way out. 

 

[Q]:  And after you went back and talked to EMS, signed the form, what did you do next?Â

 

[A]: I got the prescription medications.  I believe there was, like, five or six of them, seven of them.  I got the seven medications that were there, the bottles, the prescription bottles that they had gathered up for me.  Then went back to my car.  Began to read through them and see what she had been taking. 

 

[Q]:  And what were they?  

 

[A]: Was taking the Alprazolam, which is Xanax.  Hydrocodone, which is Vicodin.

 

[Bailey’s counsel]:  Your Honor, I renew my objection. 

 

[The State]: Your Honor, he can testify as to what he saw. 

 

[The Court]: I can’t tell.  What he’s saying?  Which is what?

 

[The State]: Which medications were found.

 

[Bailey’s counsel]: He’s listing the medications.  I renew my objection as to hearsay. 

 

[The Court]: The objection is overruled as long as just lists what’s on the bottles without any explanation. 

 

Terry later testified that as a paramedic he is trained to evaluate any potential prescriptions that a person may have ingested and how much.  He testified that when he noticed the pill bottles on the passenger seat, he read the labels to determine what Bailey could have ingested.

The trial court did not abuse its discretion in allowing the eyewitnesses to recall the names of the pill bottles found in Bailey’s car because the statements identifying the pills do not constitute hearsay.  Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Tex. R. Evid. 801(d); see Schaffer v. State, 777 S.W.2d 111, 115 (Tex. Crim. App. 1989).  Bailey was not charged with possession or consumption of any of the prescription pills found in her car.  The statements were not being offered for their truth, but provided context as to why medical personnel reacted the way they did.  Bailey argued at trial that she was improperly denied medical assistance.  It was therefore necessary for Terry and Jeter to explain why she was not taken to the hospital and the procedures they used to ensure that Bailey’s health was not in danger.

Bailey also argues that the trial court erred in admitting the statements naming the prescription pills because the pill bottles should have been excluded because they were never admitted and they violate the Best Evidence Rule.  However, Bailey failed to raise these objections at trial and thus waived her complaint.

To complain of error on appeal, a defendant must make a specific, timely objection during trial.  Tex. R. App. P. 33.1(a)(1)(A); Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989).  If a party fails to timely and specifically object, error is not preserved, and the complaint is waived.  See Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004).  A timely objection is one that is raised at the earliest possible opportunity; a specific objection is one that adequately describes the nature of the complaint.  See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  A defendant may not, on appeal, argue a reason for error that was not urged at trial.  Havard, 800 S.W.2d at 211.

Because the trial court did not abuse its discretion in admitting the references made to the prescription pills, we overrule Bailey’s third issue.

CONCLUSION

Having overruled all of Bailey’s issues, we affirm the judgment of the trial court.

 

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

(Chief Justice Gray concurs in the judgment confirming Bailey’s conviction.  A separate opinion will not issue.)

Affirmed

Opinion delivered and filed July 9, 2008

Do not publish

[CR25]

 

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[1] A muscle relaxing drug.