### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00056- CR

Jeff ery N . Rucks, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2012 -29 7, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

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

J eff ery N. Rucks was c harg ed with two counts of making or possessing counter feit insurance documents, see Tex. Tran sp. Code § 548.603(b)( 1), with one count of possessing a machine or device used to make counter feit insurance documents, id. § 548.603(b)( 2), (d), and three
counts of forg ery of a commerc ial instrument, see Tex. Penal Code § 32.21(a) , (b), (d). After a trial

was held, the jury found him g uilty of all six counts. During the punishment hear ing, Rucks pleade d true to thirteen e nhance ment alleg ations. At the end of t he hearing , the di strict court imposed life
sentenc es for the first three counts and 20-y ear sentenc es for the other three counts. See id. § 12.42 (ele vating punishment rang es for repe at fe l o n y offe nders) ; see also id. § 12.32-.33 (providing punishment rang es for first-deg ree and second- deg ree felonies)

. Rucks appea ls the district court’s judgme nts of conviction, and we will affirm his convictions. Howeve r, we do rema nd the case t o allow the district c ourt to de termine the amount of pretria l ja il time cre dit that Rucks is entitled to.DISCUSSIO N On appea l, Ruc ks prese nts six issues challeng ing his c onvictions. I n his f irst issue, he argues that the district court’s six judgme nts “should be ref ormed to ref

lect the pretria l jail time

cre dit awar ded by

the trial cour

t.” I n his second issue, he contends that the “of fense in the second
count is a lesser included offe nse of the o ff en s e al l eged in the first count” and, there fore , that his conviction under the second count constitutes double jeopar dy

. Simi larly , in his third issue, Rucks urg es that the six th count in his indictment is the same as the fifth count and, acc ording ly , insists that his conviction under both counts is double jeopar dy

. I n his fourth issue, he arg ues that the evidenc e is leg ally insufficient to support his conviction in the third count. I n his fifth issue, he asse rts that the district court e rre d by denying his moti on to suppress. Fina lly , in his six th issue, he urg es that the district court err ed by admitting evidenc e “for which the State could not establish the beg inning of the c hain of c ustody .” B eca use it provides a convenie nt way to highlig ht the evidence releva nt to this case , we addre ss Rucks’s fourth issue first. Then, we ad d re s s h is second and third issues toge ther followe d by

his fifth and six th issues. Finally , we a ddress Rucks’s f irst issue on appea l.

Suf fi ciency of the Evidence

I n h i s fo u rt h issue on appea l, Rucks argues t hat t he evidence is leg ally insufficient
to support his conviction under the third count of his indi ct m ent. That count prese nted a claim under subsection 548.603(b)( 2) of the Transpor tation Code, which prohibits the possession of “any part of a st amp, dy e, plate, neg ative, mac hine, or other device that is used or designate d for use in

m ak i n g a counterfe it” vehicle inspection cer tificate “or ins uranc e document.” Tex. Transp. Cod e § 548.603(b)( 2). Fur

ther, the Code elevates the offe nse level if “the perso n ac t s wi th intent to
2defr aud or harm another person.” Id. § 548.603(d). Reg arding the particula r char g es, the indictment alleg ed that Rucks “did then and there , with intent to de fra ud another person, possess any part of a machine or other device , to-wit: a Bla ck and Dec ker power amp and a Canon MP480 printer that

wer e used or

desig nated f

or use in the makingof a c ounterfe it insurance doc ument.” Under a leg al-suff

iciency revie w, appellate courts view the evidenc e in the light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

orming this revie w, an appellate court must bear in mind that it is the fac tfinder’ s duty to weig h the evidenc e, to resolve conflicts in the testimony , and to make rea sonable infere nces “fro m b asic facts t o ultimate fac ts.” Id. Moreove r, appellate courts must “dete rmine whether the

nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e whe n viewed in the lig ht most favorable to the verdic t.” Hooper v. State , 214 S.W .3d 9, 16-17 (Tex . Crim. App. 2007). Fur thermore , appellate courts presume t hat conflicting inferenc es

w e r e r e s o lv e d in f

a v o r o f th e c o n

v ic ti o n a n d d e f e r to th a t r e s o lu ti o n . Cl a y to n v . S ta te , 2 3 5 S. W. 3 d 7 7 2 , 778 (Tex. Crim. App. 2007).

During the trial, Offic er Daniel Carmona test i fi ed t h at he initiated a traff ic stop of R u ck s af ter noticing that Rucks was not wea ring a seatbe lt. Fur

ther, he stated that afte r Ruck s stopped his car , Rucks “jumped out of t he car” and appr oache d the pol ice car. Moreove r, Officer Carmona rela ted that when he asked Rucks for his license and proof of insurance , Rucks acte d very

nervous when handing over the documents. Reg arding Rucks’s proof of insurance , Offic er Carmona stated that the car d that Rucks initially g ave him had expired but that Rucks later handed him another insurance car d that purported to be eff ective. I n addition, Offic er Carmona rela ted that afte r he was 3advised that there was an active arr est war rant for Rucks, he place d Rucks under arr est, and Offic er Carmona also tes t i fi ed t h at Rucks asked if his car could just be rele ased to his passeng er. Next, Offic er Carmona rec alled that another office r arr ived on the scene , Offic er Michae l Rapier, and that Offic er Rapie r collec ted items that were scatter ed throug hout the car

.

I n his testimony , Offic er Carmona explained that a couple of rec eipts fell out of the

car when Office r R apier opened the door and that one of the re ce i p t s matched an unopened set of cookwa re that was in the vehicle. Fur ther, he rela ted that he noticed “that there was a printer [i n the backse at] that was hooked up to a power conver ter that was” plugg ed into the car ’s cig are tte lighter , that “the roll of paper ” in the printer was rec eipt paper and “matche d the siz e of the rec eipt that” was found, and that there was another roll of paper . I n addition, Offic er Carmona stated that the printer

was a Canon MP480 printer and that it appea red to him to have been altere d to make it easie r to make copies, and he specifie d that a Bla ck & Dec ker power amp was connec ted to the printer. Fur t h er, he stated that there wer e various ty pes of paper

work in the car , including “a bunch of

rec eipts.” F inally , he testified that it appe are d that Rucks was using t he printer to alter r ece ipts to defr aud Wal-Mar

t. Once Offic er Carmona finished testify ing, Offic er Rapier descr ibed his rec ollection of the events in question. I n his testimony , he corr oborate d Offic er Carmona’ s testimony reg arding the cookware and the “ Canon copier printer.” Reg arding the printer, Office r R apier admitted that he never tested the printer to see if it worke d, but he testified that he found the printer in the backse at and that the printer was plugg ed into the car ’s cig are tte lighter by use o f a p o wer cord and the Bla ck & Dec ker pow er a

mp inverter. I

n addition, Office r Rapier rec alled that there was a box for

4the printer and a binder “filled with paper work or rec eipts,” including Wal-Mart rec eipts. Moreove r, he stated that one of the Wal-Mart rec eipts “wa s g lued or pasted toge ther.” Next, he rela ted that he found “anothe r rec eipt that was copied or made from the g lued rec eipt

. . . it looked like a leg itimate

rec eipt

. . . with the same numbers and ever y thing like that.” The rec eipt t hat was cut and pasted toge ther was admitted as exhibi t 8, and the rec eipt that was alleg edly a completed copy was admitted

as exhibi t 9. Finally , Offic er Rapier also explained that he g ather ed the various ty pes of documents that wer e located in the car , place d them in the printer box , closed the box , and transporte d the box , the printer, a

nd the power

cords to the e vidence locker of the Sche rtz P olice De partment. After Offic er R ap i er t estified, Detec tive Kelly Kallies was called to the stand and testified that she was the evidenc e technicia n for the S chertz Police Depa rtment and cata logue d the evidenc e that Offic er Rapier broug ht to t h e ev idence locker , including the printer and the
contents of the printer box

. I n her testimony , she detailed that she examined the Wal-Mart rec eipts
to deter mine which rece ipts wer e altered and documente d t h e condition of t he rece ipts, that some of the rec eipts had been cut and pasted toge ther, that other rec eipts wer e copies of the altere d ones, that exhibi t 8 was a rec eipt that was in the p ro ce s s of being modified, and that exhibi t 9 was a duplicate of the finished alter ation. Moreove r, she rela ted that there wer e sever al “piec es of paper with Wal-Mart rec eipts copied on them ” an d that the evidenc e was consistent with an intent to 1 defr aud or ha

rm Wal-Mart.

During the trial, Offic er J ason Erben testified that afte r Rucks was arr ested, a Wal-Mart 1 rec eipt for a mix er was found in his pocket. Fur ther, Offic er Erben explained that he transporte d the rec eipt from the detention center to the S cher tz Police Depa

rtment so that it could be entered into evidenc e. That rec eipt formed the basis for the fourth count in Rucks’s indictment, but Rucks does not appea l his conviction for that count. 5I n addition to testify ing a bout the receipts, Detective Kallies rela ted t hat s he found in the printer box insurance car ds with Rucks listed as the policy holder. Earlier i n t h e t ri al, two individuals working for an insurance company , Mark Tickerh o o f and Carol Have y , testified that Rucks had purcha sed an automobile-insuranc e policy with an eff ective period from J une 17, 2009,
to J uly 17, 2009. I n her testimony , Detec tive Kallies stated that the insurance car ds that she found 2 in the box had the same policy number and vehicle descr iption as the monthly policy that Rucks purcha sed previously , but she testified that the eff ective and expiration dates on the car ds had been chang ed. Reg arding the first car d, she testified that it had “a small piece of paper taped or g lued—attac hed to the—over the origi n al effective date and it say s ‘7-17- 2009.’ Under neath it it say s 6-17-2009.” I n addition, she explained that the expiration date had been chang ed from J uly 17, 2009, to Aug ust 17, 2009, and descr ibed the document as in the proce ss of being altere d. Reg arding the second car d, Detec tive Kallies mentioned that the eff ective date and the expiration date had been succe ssfully chang ed to “7-17- 2009” and “8-17- 2009,” respe ctively

. I n other words, Detec tive Kallies stated that the second car d was a copy of the first car d. Moreove r, she emphasized that both

car ds were counter feit. B oth car ds were admitted into evidence as exhibit s.

Although Detec tive Kallies conce ded that she had not tested to see wheth er the printer or the power inverter worke d, she testified that the printer was a machine used in the making of counte rfe it insurance doc uments and re ceipts.

I n his testimony , Ticker

hoo f explained that Rucks did not have permission to alter the 2 insurance document. 6I n light of the evidenc e summarized above as we l l as the rea sonable infere nces

that the jury could have made from that evidenc e and g iven th at t h e s t an d ard of revie w for leg al-suff iciency challeng es obl igates appellate courts to defe r t o the j ury ’s resolution of conflicts in the testimony and to r eview the evidenc e in the light most fa vorable to the verdic t, see Jack son , 4 4 3 U. S

. at 319; Clayton , 235 S.W .3d at 778; Hooper , 214 S.W .3d at 16-17, we cannot concl u d e that t he evidenc e was leg ally insufficient to support Rucks’s conviction under count three of the indictment, see W

illiams v. State , 688 S.W .2d 486, 488 (Tex. Crim. App. 1985) (providing that intent to defr aud may be established throug h circ umstantial evidenc e); Hill v. State , 608 S.W .2d 932, 934 (Tex. Crim. App. 1980) (providing that “[t] he intent to defr aud can be proven circ umstantially upon proof of

the ac cused’ s knowledg e that the instrument is a for g ery”). Acc ording ly , we ove rrule Ruc ks’s fourth issue on a ppeal.
Double Jeopardy

I n his second issue, Ru ck s argues that his “[c]onviction and punishment under the second count of the indictment violates the prohibition on multipl e punishments for a single offe nse beca use the offe nse in the second count is a lesser included offense of the offe nse alleg ed in the first count of the indictment.” In his third issue on appea l, Rucks raises simil ar double-jeopa rdy

conce rns and a lleg es that the sixt h count in the indictment is the same as the fifth count.

“The Double J eopar dy Clause o f the Fifth Amendment

. . . protec ts an acc used ag ainst a second prosec ution for the same offe nse for which he has been previously acquitted or previously convicted” and “also p rot ects an acc used from being punished more than once for the same offense.” Litt rell v. Stat e , 271 S.W .3d 273, 275 (Tex. Crim. App. 2008 ); s ee Bigon v. Stat e , 7252 S.W .3d 360, 369 (Tex. Crim. App. 2008) (explaining that Fifth Amendment protec ts “ag ainst

multipl e punishments for the sa me offe nse”) . “I n the multiple-punishments contex t, two offense s may be the same if one offe nse stands in rela tion to the other as a lesser- included offe nse.” Litt rell , 271 S.W .3d at 275-76. An offe nse is a lesser- included one if “it is established by proof of the same

or less than all the fac ts require d to establish the commission of the offe nse char g ed” or if “it differ s from the offe nse char g ed only in the respe ct that a less culpable mental state suffice s to establish its commission.” Tex. C ode Crim. Proc. ar t. 37.09(1), (3)

. Reg arding his second issue, in the first and second counts of the indictment, Rucks

was char g ed under subsection 548.603(b)( 1) of the Transpor tation Code, which prohibits making

or possessing, “with the intent to sell, circ ulate, or pass, a counter feit” vehicle insurance document. Tex. Transp. Code § 548.603(b)( 1). The first count of the indictment a lleg ed that Rucks “did then and there , with intent to defr aud another , make with intent to circ ulate or pass a counter feit insurance document, to-wit: one Texas I nsuranc e I dentifica tion Card with forg ed policy eff ective date and/or expiration date” or that Rucks “did then and there , with intent to defr aud another , possess with intent
to circ ulate or pass a counter feit insurance document, to- w it : o n e T e xa s I nsuranc e I dentifica tion Card with forg ed policy eff

ective date and/or expiration date.” The second count alleg ed that Rucks “did then and ther e, make with intent to circulate or pass a c ounterfe it insurance doc ument, to-wit: one Texas I nsuranc e I dentifica tion Card with forg ed policy expiration date” or that Rucks “did then and there , possess with intent to circ ulate or pass a co unterfe it insurance document, to-wit: one Tex as I nsuranc e I dentifica tion Card with forg ed policy expiration date.”

8I n light of the fac t that both counts wer e char g ed under subsection 548.603(b)( 1) and

g iven that the lang uag e of the second count is near ly identical to t he first c ount except that it does not contain the phra ses “with intent to defr aud anothe r” a nd “ef fec tive date,” Rucks urg es that the second count is a lesser included offe nse of the first one. See Litt rell , 271 S.W .3d at 276 (explaining that deter minations re g arding lesser- included offe nses are made by compar ing elements of g reater offe nse as alleg ed in indictment with elements of statute th at d efine s alleg ed lesser offe nse). Acc ording ly , Rucks contends that the coun ts “ar e the same offe nse for jeopar dy purposes and both may not stand without doing violence to the Double J eopar dy Clause” and asks t his Court to aff irm the conviction of the more serious offe nse and vaca te the other one. See Ex parte Cavazos , 203 S.W .3d 333, 337 (Tex. Crim. App. 2006). Although Rucks notes that he wa s g iven t he same
sentenc e under both counts, id. at 338 (explaining that g ener ally most serious off en s e is one “for which the g reatest sentenc e was assessed” ), he asser ts that the first count is th e more serious one beca use it contains the fra

ud element and was char g ed as a second- deg ree felony while the second
count was charg ed as a thi rd-de g ree felony

. See Tex. Transp. Code § 548.603(d) (expl aining that offe nse under subsection 548.603(b) is third-deg ree felony and elevating offe nse level to seco n d

deg ree felony

if “pe rson ac ts with the intent to defraud” ). Reg arding his third issue, both the fi ft h and the six th counts alleg ed that Rucks forg ed Wal-Mart rec eipts. The Penal Code define s “[f]orge ” as “to alter, make, complete, execute,

o r authenticate any writing so that it purports

. . . to be the act of another who did not aut h o ri z e the act”; “to i ssue, t ransf

er, reg ister t he trans fe r o f, p as s , publish, or ot herw ise utter a writing that is forg ed”; or “to possess a writing that is forg ed

. . . with in t en t t o u t t er it.” Tex. Penal Code

9§ 32.21(a) (1). Moreove r, the Penal Code states that a person is g uilty o f forg ery if “he forg es a

writing with intent to defr aud or harm another” and elevates t he offense level “if t h e wr i t i ng is or purports to be a . . . commerc ial instrument.” Id. § 32.21(b), (d). The fifth count of the indictment alleg ed that Rucks “did then and there , wi t h i n t en t to defr aud and harm another , alter or make a writing so it purported to be the act of another to-wit: Wal-Mart, who did not authorize the act, and said writing was a commerc ial instrument; to-wit: rec eipt of t he tenor follow ing.” Following this alleg ation, the i ndictment contained a copy of a rece ipt purporting to be a rece ipt for the purcha se of cookwa

re from Wal-Mart. The six th count made an identical alleg ation and contained a copy of

a Wal-Mart rec eipt also for the purcha se of cookwa re. The amounts ref

lected in the rec eipts as well as the da tes listed on them are the same.

I n light of the identical wording in the two counts and the simil arity of the t wo

rec eipts, Rucks contends that “the offe nse alleg ed in the six th c ount is the same offe nse alleg ed in the fifth count of the indictment.” Acc ording ly , Rucks argues that “both may not be allowed to stand without doing violence to the Double Jeopardy Clause.” More over, be cause the offe nse leve l and the punishments imposed for both offe nses are the same, Rucks sug g ests that neither offe nse is more serious than the othe r and tha t this C ourt should just vacate the six th count.

I n resolving these issues on appea l, we note, as a preliminary matter, that Rucks did
not prese nt these double-jeopa rdy claims to the district court. See Tex. Code Crim. Proc. art. 1.14(b) (spec ify ing that defe ndant waives rig ht to appea l erro r i n indictment if he does not object to

err or b ef o re t ri al commence s); see Gonzalez v. State , 8 S.W .3d 640, 642 (Tex. Crim. App. 2000) (explaining that defe ndant has burden to prese rve double-jeopa rdy objection at or befor e time char g e

10is g iven to jury ). Ty pically , the failure to prese nt an issue to the district court preve nts the issue from being considere d on appea l. See Tex. R. App. P. 33.1(a) (re quiring that complaint be made to trial
court in order to prese rve issue for appea l). Howeve r, the court of criminal appea ls has deter mined that “bec ause of the fundame ntal nature of double jeopar dy protec tions, a double jeopar dy claim may b e r a is e d f o r th e f ir s t ti me o n a

p p e a l

. . . w h e n th e u

n d is p ute d f

a c ts s h o w th e d o u

b le je o p a r d y v io la ti o n is clea rly appar ent on the fac e of the rec ord and when enforce m en t o f usual rules of proce dural defa ult serve s no leg itimate state interests.” Gonzalez , 8 S.W .3d at 643. “A double-jeopa rdy claim is appar ent on the fac e of the trial rec ord if resolution of the claim does not require further proce eding s for the purpose of introducing additional evidenc e in sup p o rt o f t he double-jeopa rdy claim.” Ex parte Denton , 399 S.W .3d 540, 544 (Tex. Crim. Ap p . 2 013). Having revie wed the

rec ord in this case , we cannot conclude that the first requirement is met for either issue. See Barriga-Hermosillo v. State , No. PD-0879-13, 2014 Tex. Crim. App. Unpub. L EXI S 46 7 , at *12 (Tex. Crim. App. May 7, 2014) (not desig nated for publication) (explaining that both require ments must be satisfied befor e revie wing court may addre ss double-jeopa rdy claim that was not prese nted to trial court). During the trial, evidenc e was prese nted demonstrating that two differ ent documents purporting to be insurance car ds wer e found in the car that Rucks was driving , and those documents

serve d as the basis for the first two counts of the indictment. As descr ibed in the previous issue, the State alleg ed that one of the car ds was in the proce ss of being altere d by pasting alterations to its fac e and that the second car d was a copy of t h e fi rs t o n e b u t that it had been succe ssfully chang ed. Moreove r, both documents wer e admitted as exhibi ts. Simi larly , during the trial, the State prese nted

11evidenc e of multipl e counter feit rec eipts purporting to be from Wal-Mart, and the State admitted as

exhibi ts two of the altere d rec eipts, which serve d as the basis for the fifth and six th counts. As with the insurance car ds, the State argued that one rec eipt was a g enuine Wal-Mart rec eipt that was in the proce ss of being chang ed and tha t the other one was a

completed c opy

of the fir st one. Acc ording ly , as urg ed by the State, the jury could have found Rucks g uilty of the four
counts based on four dist inct alleg edly altere d docu m en t s . S ee id. at *11-12 (providing that “[i] n

a p p r opriate circ umstances, a defe ndant may proper ly be char g ed with, and convicted of, tw o o f f e n s e s

u n d er the same statute that are alleg ed in the same indictment with the same date” ); Gonz a l ez , 8 S.W .3d at 645 (e x plaining that when indictment contained multi ple par ag raphs a nd when jury ’s g ener al verdic t c ould have be en base d on resolution of those par ag raphs in manne r that would not have c onstitut ed double jeopa rdy , no double-jeopa

rdy violation is apparent on f ace of re cord)

. For the rea sons previously g iven, we overr u l e Ru cks’s second and third issues on appea l.
Motion to Supp ress

I n his fifth i ssue on appeal, Rucks contends that the di strict court erre d by denying his motion to s u ppress the insurance car ds as well as testimony perta ining to those car ds. When seeking to suppress the evidenc e in the suppression hear ing, Rucks did not challeng e the seizure of the evidenc e by the police or the inventory of h i s ca r; i nstead, he arg ued that Detec tive Kallies improperly sear ched without a war rant the printer b o x m o n t h s afte r it was place d in the evidenc e locker

. Acc ording ly , Rucks argued d u ri n g t h e hear ing that the district court should suppress the

12i n s u

r a n c e c a r d s t h a t D e t e c t i v e K a l l i e s f

o u n d i n t h e b o x a l o n g w i t h a n y t e s t i m o n y p e r t ai n i n g t o t h o s e c a r d s . I n its conclusions of law, the district court deter mined that the printer box “ w as seized

as evidenc e in a potential criminal m at t er rathe r than as mere inventory in a sear ch incident to an

ar re s t

. ” Further, the court conclude d that Rucks “fa iled to demonstrate that he had a continui n g, leg itimate[ , and] r easona

ble expectation of privac y in the seized evidentiar y materia l r equiring the issuance of a sear ch war

rant befor e further investigation of the evidenc e contained within the box .” When prese nting this a

rg ument on appea l, Ruc ks argues that althoug h the rig ht is a diminis hed one, the court of criminal appea ls has nonethele ss rec og nized that “ar restee s do reta in

some level of privac y interest in the persona l eff ects or belong ings taken from them incident to their

arr est.” Oles v. State , 993 S.W .2d 103, 108 (Tex. Crim. App. 1999). Moreove r, Rucks contends that altho u gh t h e ci rcumstanc es might have justified the issuance of a sear ch war rant to examine the
contents of the box , see State v. Jordan , 342 S.W .3d 565, 568-69 (Tex. Crim. App. 2011) (desc ribing

c ir c u ms ta n c e s in w h ic h w a

r r a n t ma y is s u e ) , n o s e a

r c h w a r r a n t w a s a p p li e d f o r o r is s u e d

. A c c o r d in g ly , Rucks insists that the sear ch was presumptively unrea sonable. See McG ee v. State , 105 S.W .3d 609, 615 (Tex. Crim. App. 2003) (explaining that there are exceptions to war rant require ment). For
t h es e rea sons, Rucks urg es this Court to conclude that the district court should have sup p re s s ed the evidenc e rela ting to th e i n s u ra n ce car ds, which formed the basis for the first three counts of Rucks’s indictment.

A trial court’s ruling on a motion to s u p p r e s s is r e v ie w ed under an abuse- of-discr etion standard. Crain v. State , 315 S.W .3d 43, 48 (Tex. Crim. App. 2010); s ee also Smith v. State , 286 S.W .3d 333, 339 (Tex. Crim. App. 2009) (spec ify ing that trial court abuses its discretion when

13its decision lies outside zone of rea sonable disag ree ment); State v. Me chler , 153 S.W .3d 435, 439

(Tex. Crim. App. 2005) (noting that trial court abuses its discretion when its ruling is unrea sonable

o r ar b i t rar y ). I n a suppression hear ing, the trial court is the sole judge of the cre dibilit y of t h e witnesses and of the weig ht to be g iven to their testimony

. St. George v. State , 237 S.W .3d 720, 725 (Tex. Crim. App. 2007). When r eviewing a ruling on a motion to suppress, appellate courts apply

a bifurca ted standard of revie w. W ilson v. State , 311 S.W .3d 452, 457-58 (Tex. Crim. App. 2010). Under that standard, appellate courts “af ford almost total defe renc e to a trial judge ’s finding s of fac t in a suppression hear ing as long as those fac tual finding s are supported by the rec ord,” S t ate v. Granville , 423 S.W .3d 399, 404 (Tex. Crim. App. 2014); see W ade v. State , 422 S.W .3d 661, 666 (Tex. C ri m . Ap p. 2013), but revie w de novo the t rial court’s application of the l aw to those fac ts, W ilson , 311 S.W .3d at 4 5 8

. S i m ilarly , appellate courts g ive almost total defe renc e to “ruling s on mix ed que s t i o n s of l aw and fac t when the resolution” depends on an evaluation of credibility and demea nor but “re view de novo mix ed questions of law and fac t that do not depend on an evaluation of cre dibilit y and demea

nor.” State v. Johnston , 3 3 6 S .W.3d 649, 657 (Tex. Crim. App. 2011). Moreove r, purely leg al questions are revie wed de novo. Id. On appea l, the trial court’s ruling will be upheld if it is corr ect unde r any applicable theory of law. Y oung v. State , 283 S.W .3d 854, 873 (Tex. Crim. App. 2009).

As a preliminary matter, we note that this case does not prese nt the more ty pical fac t p at t er n in which courts have had to deter mine whether a war

rantless sear ch runs afoul of Fo u rt h Amendment restric tions. See, e.g. , Granville , 423 S.W .3d at 402, 412-17 (consider ing whether

sear ch without war

rant of defe ndant’s phone when he had been arr ested for unrela ted char g e violated

14his Four

th Amendment rig hts); Oles , 993 S.W .2d at 105, 106-11 (addressing whether testing of defe ndant’s clothing after his arr est on an unrelated matter and when “[t] here was no evidence on

or within his clothing that was immediately appar ent to the naked ey e” violated Four th Amendment). I nstead, in this case , afte r the police pulled Rucks over for a traff ic violation, they noticed in the car multipl e rec eipts from Wal-Mart that appea red to have been alt ered as well as a printer that they believed was being used to make the counter feit documents. I n an eff ort to collect the evidenc e, the police g ather ed the printer and its acc essories, place d the paper work that was located in the car into the printer’ s box , and transfe rre d the box to the evidenc e locker

. For that rea son, the district c ourt conclude d that the printer box was seized as evidenc e, and Rucks does not c ontest the propriety of these actions by the police. Acc ording ly , the fac t that the police later found additional evidenc e of other counter feiting inside the box would not se em to implicate any Four th A mendment conce rns, and we have been unable to find any authority stand i n g fo r the proposition that the police wer e obligated to obtain a sea

rch w arr ant when it chr onicled the e vidence located inside the box

. Even assuming t hat Fourth Amendment rights are implicated, we would be unable
to conclude that the district court abused it s d i s cr et i on by denying Rucks’s motion to suppress. Although the ty

pes of documents and persona l eff ects have chang ed over time, the “ce ntral conce rn underlying th e Fo u rt h Amendment” is still “the conce rn about g iving police office rs unbridled discretion to rummag e at will among a person’ s private eff ects.” Arizona v. Gant , 556 U.S. 332, 345 (2009). To succe ssfully prese nt a claim that a sear ch or seizure wa s unrea sonable, an individual
must show that “he has a subjective expectation of privac y in the place o r o b j ect sear ched, and” that “socie ty

is prepa red to rec og nize that expectation as ‘reasona ble’ or ‘leg itimate.’” Granville ,

15423 S.W .3d at 405 (quo t i n g Minnesota v. Olson , 495 U.S. 91, 95-97 (1990); Kothe v. State ,

152 S.W .3d 54, 59 (Tex. Crim. App. 2004)). “A ‘leg itimate’ expectation of privac y acknow ledg es the lawf ulness of the pe rson’s ‘subjec tive’ expectation of pr ivacy .” Id. at 407. As discussed ea

rlier, Rucks doe s not challeng e the takingof the box or its contents when he was a

rre sted, and we do not believe that he has demonstrated a s ubjective ex pectation of privac y to the contents of the box or shown t h at s o ci ety would rec og nize as rea sonable an expectation of privac y reg arding those items when they wer e taken as evidenc e of criminal activity from the car and placed i n an evidence storag e locker. See Oles , 993 S.W .2d at 105, 109, 110-11 (conc luding that fore nsic testing perf ormed on defe ndant’s clothing day s afte r h i s ar rest was

rea sonable, that defe ndant had no subjective expectation of privac y in clothes i n p o l i ce custody , and that society would no t d ee m an y expectation of privac y rea sonable and noting that lawen fo rcement-storag e fac ility is not commonly associate d with notions of privac y and that “[n] o situation imag inable is as alien to the notion of privac y than an ar re s tee sitti ng in a jail cell, completely separ ated from his eff ects that are lawfully controlled and inventoried by the very police that are investigating him”). Moreove r, unlike the contents of a persona l cell phone, which the court of criminal appeal s h as rec ently deter mined car

ries a rea sonable expectation of privac y , see Granville , 423 S.W .3d at 40 8

- 1 7 ( e xp la in in g th a t c e ll phones now contain more persona l information than most persona l proper ty and that they are “not like a pair of pants or a shoe” and concluding that

arr estee h as rea sonable expectation of privac y in contents of cell phone that is being temporar ily stored in jail proper

ty room), the signific ance of the documents at issue h er e was appar ent from looking at the face of the d o cu m en t s , cf

. United St ates v. Phil lips , 607 F.2d 808, 809-10 (8th Cir.

161979) (upholding admi s s ion of robber y chec klist found in defe ndant’s wallet afte r defe ndant was

arr ested a nd his belong ings w ere place d in police custody ). For these rea sons, we cannot conclude that the district court abused its discretion by denying Ruc ks’s motion to suppress, and there fore , we ove rrule Ruc ks’s fifth issue on appe al.

Chain of Custody I n his six th issue on appea l, Rucks contends that the district court err ed by admitting into evidenc e the contents of the printer box beca use “the State could not establish the beg inning of the chain of custody .” When making this argument, Rucks acknow ledg es that g aps in the chain of custody g ener ally g o to the weight to be given to t h e evidence rather than its admissibili ty , but he insists that evidenc e establishing the beg inning and the end of the chain of custody is alway s require d. See Porter v. State , 969 S.W .2d 60, 66 (Tex. App.—Austin 1998, pet. ref ’d) (explaining
t hat when proof of chain of custody is require d, “the St ate must prove only the beginn i n g an d t h e end of the chain of custody , and any g aps in the interim g o to the weight o f t h e ev i d ence, not

a d mi s s ib il it y ” )

. A s s u p p o r t f o r h is a s s e r

ti o n th a t th e o r ig in o f th e c h a in o f c u s to d y w a s n o t e s ta

b li s h e d , Rucks points to testimony by Offic er Rapier i n which he admitted that when he w as g ather ing the documents in the car , he failed to comply with evidenc e-c ollecting policies beca use he did not mark the documents or seal them in an evidenc e bag

. I n addition, Rucks highlig hts that Offic er Rapier’ s evidenc e-r etention form did not individually list the items g ather ed an d that Detec tive Kallies testified that the insurance car ds wer e not identified in Offic er Rap i er ’s ev i dence -re tention form. I mportantly , Rucks notes that Offic er Rapier testified that he did not see any insurance car ds when he wa s collecting documents fr om the car

. 17Testimony establishing a chain of custody is used to link collecte d ev i d en ce wi th

testimony g iven during the trial conce rning the evidenc e and often addre ssing the results of scientific testing, “such as DNA testing,” see Dossett v. State , 216 S

. W

. 3 d 7, 17 (Tex. App.—San Antonio 2006, pet. ref

’d), and urine testing, Porter , 969 S.W .2d at 66, “whe re the rele vant char acte ristics of the evidenc e are distinguishable only by scientific tests or analy sis.” Id. On appea l, we re view a trial court’s “dec ision on the admissibilit y of evide nce . . . unde r an a buse of discr etion standard.” Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011).

Although Rucks corr ectly points out that Offic er Rapier admitted that he did not notice the insurance d o cu m en t s when he was collecting evidenc e from the car , it is simil arly

u n d isputed that Offic er Rapier g ather ed paper documents from inside the car , including vario u s Wal-Mart rec eipts that appea red to have bee n altere d, place d them into a printer box that was also located inside the car , closed the box, and transporte d the box t o the evidenc e locke r. I n addition, Offic er Rapier identified the two rec eipts admitted as exhibi ts as two of the rec eipts that he collecte d from the c ar a

nd place d in the box

. Moreove r, Detec tive Kalli es p rovi ded extensive testimony descr ibing how the insurance car ds and Wal-Mart r ece ipts were located in the box containing evidenc e g ather ed from the car that Rucks was driving and how the box had b ee n s t ored in the evidenc e locker from the day that Offic er Rapier collecte d the evidenc e. See Tex. R. Evid. 901(a) , (b) (providing that “[t] he require ment of authentication or identification as a condition prec edent to admissibili ty is satisfied by evidenc e sufficie nt to support a finding that the matter in question is what its proponent claims” and that authentication may be done throug h “[t] estimony that a matter is what it is claimed to be”)

.

18I n particula r, she testified that the box was closed when it wa s broug ht to the evidenc e locke r, that she took custody of the box shortly afte r Rucks’s arr est, and that s h e secur ed the evidenc e and maintained it afte r Offic er Rapier broug ht it to the evidenc e locker

. I n addition, she testified that the

car ds listed Rucks as the policy holder a nd specifie d that the exhibit s offe red by the State wer e the

same c ards that she found in the box.

F u r th e r mo r e , Rucks provided no evidenc e or testimony indicating that the documents had been tamp er ed wi th since they wer e rec overe d from the car or sug g esting that they had b ee n i m proper ly place d in the box afte r the box was stored. Cf. Dossett , 216 S.W .3d at 1 7 , 1 8 (explaining, in chain- of-c ustody context, that defe ndant has burden to prese nt evidenc e of tampering and that “me re pa ssag e of time” is not evidence of tamper ing)

.

I n light of this testimony and g iven the nature of the evidenc e at iss u e, we cannot conclude that the district court a bused its discr etion by admitting into e vidence the contents of the box , including the Wal-Mart rec eipts and the two insurance car ds that wer e discovere d in the printer box

. See id. at 17 (explaining that trial court “does not a buse its discr etion by admitting evidenc e 3 based on a belief that a rea sonable juror coul d fi n d t h at t he evidenc e has been authenticated or identified”) ; see also Sereal v. State , No. 01-09-00192- CR, 2011 Tex. App. L EXI S 2416, at *8 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. ref ’d) (m em . o p., not desig nated for publication)

I n rea ching this result, we note that the district c ourt did not allow into evidenc e all of the 3 items that wer e found i n t h e b o x . Fo r example, the district court ruled that rolls of blank printer p ap er could not be admitted beca use unlike the insurance car ds or rec eipts, they wer e not unique or distinguishable

. 19(expl aining that chain of custody may be established “throug h witness testimony ”). Acc ording ly ,

we ove rrule Ruc ks’s six th issue on appea l.

P ret rial Jail Ti m e Cr edits

I n his first issue, Rucks contends that his judgme nts should be ref orme d “ to r efle ct the p r e tria l ja il c r e d it a

w a r d e d b y th e ” d is tric t c o u

r t. S e e T e x. R. A

p p . P. 4 3

. 2 ( b ) ( a ll o w in g a

p p e ll a te c o u r t t o m o d i fy trial court’s judgme nt); see also Tex. Code Crim. Proc. art. 42.03, § 2(a) (1) (re quirin g trial court to “g ive the defe ndant cre dit on the defe ndant’s sentenc e for the time that the defe ndant has spent” in jail for

case ). There are two periods of time in question in this appea l. Reg arding the first per iod of time, the district court’s judgme nts ref lect that Rucks was g iven cre dit for jail time from Aug ust 26, 2009, to November 30, 2009. Reg arding the second period, the district court’s judgme nts specify that Rucks was g iven cr edit for time ser ved fr om J uly

29, 2011, to J anuar

y 15, 2013. During the punishment hear ing, Rucks filed two exhibi ts perta ining to his cr ed i t reque sts. The first ex h ibit showed that Rucks had been in jail starting on Aug ust 26, 2009, and rele ased on November 23, 2009. Simi larly , Rucks asked the district co u rt d u ring the hear ing for

cre dit “fr om 8-26 to 11-23 of 2009,” and the district court g rante d his reque st. On appea l, Rucks’s brief show s that the judg ments actua lly awa rded him seve n more da

y s of cr edit than he reque sted, but he does not otherwise specify in his analy sis or in his pray er whether this addition was improper. The State does not a ddress this discr epanc y in its brief and limit s its re sponse to the second period of jail-time cr edit.

20I n this issue, Ru ck s fo cu s es his challeng e on the second period of jail-time cre dit.

Specifica lly , he contends that the cre dit g iven to him in the judgme nts from J uly 2 9 , 2011, to J anuar y 15, 2013, does not comport with the jail-time cre dit actua lly awa rded during the punishment h e a r in g , w h ic h Ru c k s u

r g e s w a s f r o m O c to b e r 1 0 , 2 0 1 0 , to Ja n u a r y 1 5 , 2 0 1 3

. D u

r in g th e p u

n is h me n t hear ing, Rucks specific ally reque sted cre dit from the date of the indictment, which was October 13, 2010, throug h the date of t he sen t en ci n g h ea ri ng , which was J anuar y 15, 2013. The S tate did not object to the re quest made by Rucks. Acc ording to Rucks, he was alre ady incar cer ated at the time that the indictment was issued, and a hold was placed on him during this incar cer ation. The two e x hibits t hat Rucks filed when reque sting jail-time cre dit show that Rucks was place d on a hold from the Texas Depa rtment of Criminal J ustice starting on J une 10, 2011, and ending on September 8, 2011, and that Rucks was in prison on another ma tter fr om September 30, 2010, to Jul y 29, 2011. On appea l, t h e S t ate ag ree s that the judgme nt should be ref ormed to awa

rd Rucks additional cre dit for time serve d, but the State insists that Rucks is only entitled to additional cre dit from the time that he was place d on a hold by the Depa rtment, which acc ording to Rucks’s exhibi t

occur red on J une 10, 2011. See Ferr i n v. State , Nos. 05-98-02010–02011- CR, 1999 Tex. App. L EXI S 9611, at *2 (Tex. App.—Dallas Dec

. 30, 1999, no pet.) (not desi gn at ed for publication) (providing that if person is confine d in another jurisdic t i on, he is entitled to cre dit only when “a detainer or hold is lodge d ag ainst him by the first jurisdiction” (citing Ex parte Bynum , 772 S.W .2d 113, 114 (Tex. Crim. App. 1989)))

. Fur ther, the State argues that there is no evidenc e that “any hold was placed prior

to this date.” Ac cording ly , the S tate ins ists that Rucks is not entitled to jail time

21cre dit from the date that the indic t ment was handed down (Oc tober 13, 2010) and should only be

awa rded the additional cre dit from J une 10, 2011. See J ones v. State , No. 11-97-00189- CR, 1999 WL 33743960, at *2 (Tex. App.—Eastland Mar. 11, 1999, no pet.) (not desig nated for publication) (explaining that plac ement under indictment is not same as “de tainer or hold”). As mentioned above, Rucks and the State both ag ree that he was entitled to additional j ai l -t i m e cr edit under the second credit given by the di strict court, but they disag ree reg arding th e amount of time that should be awa rded. Fur ther, there appea

rs to be a discrepa

ncy betwee n the time reque sted by Rucks reg arding t h e first cre dit and the dates ref lected in the judgme nts as well as a discrepa ncy reg arding the start date that he claims he was entitled to in his brief for the second cre dit and the start date that he actua lly reque sted from the district court. For these rea sons and g iven our limit ed role as an appellate court, we sustain Ruc ks’s first issue on appea l but rema nd this issue to the district court to co n v ene a hear ing reg arding the amount of jail-time cre dit that Rucks should be awa rded. Cf. Carter v. State , No. 03-09-00 2 1 1 -C R , 2009 Tex. App. L EXI S 9265, at *3 (Tex. Ap p . — Au stin Dec

. 3, 2009, no pet.) (mem. op., not desig nated for publication) (conc luding that

rema nd to consider issue of jail-time cre dit was not appropr iate wher e amount awa rded was not shown to be incorr ect)

.
CONCLUSION

Having overr

uled Rucks’s second throug h six th issues on appea l, we aff irm the district court’s judgme nts of conviction. Howeve r, having sustained Rucks’s first issue on appea l,

we r emand that issue f

or proc eeding s consistent with this opi nion.

22__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and F ield Affir med in Part; Reverse d and Remande d in Part Filed: Nove mber 25, 2014 Do Not Publish

23