Opinion issued May 7, 2013




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-11-01057-CR
                             ———————————
                          MOHAMMED HAQ, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 263rd District Court
                            Harris County, Texas
                        Trial Court Case No. 1305365


                                    OPINION

      A jury convicted appellant, Mohammed Haq, of the state-jail-felony offense

of credit card abuse. 1    The trial court assessed punishment at ten months’


1
      See TEX. PENAL CODE ANN. § 32.31(b)(8) (Vernon 2011) (providing that person
      commits offense if he possesses credit card with intent to use it without effective
      consent of cardholder).
confinement. In two issues, appellant contends that the trial court erroneously

admitted (1) a receipt of the alleged unauthorized credit-card transaction, and

(2) two photo-arrays shown to witnesses.

      We affirm.

                                      Background

      James Jordan, the complainant, testified that he lost his wallet around the

beginning of September 2009. When he called his credit card companies to notify

them, he discovered that several charges had been made to his cards. Jordan then

went to some of the locations where the charges had been made to see if the sales

associates could remember the person who “fraudulently used [his] credit card.”

One of those locations was an auto-parts shop. Jordan told the workers that he had

found out that someone had used his credit card without his permission, and he

spoke to a man who remembered the transaction. The State showed Jordan a copy

of the receipt from the transaction, which had already been admitted into evidence,

and asked if he could read the signature. Jordan testified that the name was his

name, albeit misspelled, and he confirmed that it was not his signature.         He

testified that he did not personally know appellant, and he did not give appellant

permission to use his credit cards.

      Andrew Swan testified that on September 1, 2009, he was working as a sales

associate at an O’Reilly Auto Parts in Atascocita. Swan testified that appellant and

                                           2
another man entered the store around 8:30 a.m. and shopped for brake pads.

Appellant used a credit card during the transaction and signed Jordan’s name on

the receipt.    Swan obtained appellant’s name during the transaction because

appellant decided to purchase a lifetime warranty, and he provided his own name

and his own telephone number. Swan identified appellant in court as the man with

whom he conducted the transaction. Swan stated that he did not check appellant’s

identification because appellant did not engage in any suspicious activity while in

the store, he “moderately knew what he wanted,” and he gave Swan a name and

phone number for the warranty. He acknowledged that he should have asked for

identification and compared names and signatures on the identification, credit card,

and warranty.

      After the transaction had occurred, Jordan spoke with Swan and told him

that someone had used his credit card to purchase parts at the store. Swan searched

through the store’s copies of receipts from past transactions and found the one at

issue. The State showed Swan a copy of the receipt and asked him what it was.

Swan identified it as a sales receipt from O’Reilly Auto Parts. Swan testified that

the receipt is kept in the normal course of business and that he was the one who

generated the receipt, which he could determine because his employee number was

printed on the receipt. Defense counsel objected to admission of the receipt on

hearsay grounds, but the trial court overruled the objection and admitted the

                                         3
receipt. The receipt reflects a purchase in the amount of $109.31 and a signature

that looks like “James Jordan.”

      On cross-examination, Swan testified that he was not the one who brought

the receipt to trial; instead, it was provided by the district attorney’s office. He

stated that the receipt was generated through a computer and that he was the one

who printed the receipt out. Swan testified that store practice was to give one copy

of each sales receipt to the customer and store another copy of the receipt in a box

under the counter. At the end of each day, employees counted the receipts and

locked them in the office for storage. Swan stated that he had not seen the receipt

since he had to find it for corporate officials shortly after the incident. He stated

that he would not know if any changes had been made to the receipt in the interim

time period. He also acknowledged that he was only a sales associate, and it was

not part of his job duties to maintain the records of the store.

      Defense counsel then renewed his objection to the receipt, stating that the

receipt had not “been properly authenticated as a business record.” The trial court

and Swan then had the following exchange outside the presence of the jury:

      The Court: First time you’ve seen [the receipt] since all this
                 happened was when?
      [Swan]:       I probably say—
      The Court: Let me see the document, please. I’m sorry. Probably
                 say what?
      [Swan]:       At maximum, three weeks after the incident.

                                           4
      The Court: No. No. Since then, when is the last time?
      [Swan]:      I haven’t.
      The Court: Okay. You saw it three weeks after the incident and then
                 when did you see it again?
      [Swan]:      This part, today.
      The Court: Today.
      [Swan]:      Yes, sir.
      The Court: So my question to you is: Can you attest to the fact that
                 everything on here was what was on there when this
                 occurred back in 2009; is that—
      [State]:     September 1st, 2009, Your Honor.
      The Court: Or if somebody had taken this receipt or altered it in any
                 way, would you know that?
      [Swan]:      Yes, sir. Because all the text is on a dot matrix printer
                   and not many people use those nowadays.

Swan further informed the trial court that before he saw the receipt at trial he

would not have been able to state whose signature appeared on the receipt, nor

would he have been able to testify to the dollar amount of the purchase or the parts

that were purchased. After questioning Swan, the trial court stated, “My ruling

stands. [Appellant’s] motion’s overruled.”

      Swan also testified that during the investigation into the transaction an

officer showed him a photo-array, State’s Exhibit 2. He stated that the officer did

not tell him that he had to pick someone from the photo-array, and the officer did

not tell him whom to select. He testified that he selected someone from the photo-


                                         5
array and that he selected the person from his “visual perception of the gentleman

when he came in [the store].” Defense counsel objected to admission of this

exhibit, stating, “Appropriate foundation predicate has not been laid for the

introduction of this photospread.” The trial court overruled the objection and

admitted the photo-array. Swan identified his signature next to a picture on the

photo-array.

      Megan Messinger testified that on September 1, 2009, she was working as a

sales associate at a Kohl’s department store in Atascocita. She testified that

appellant entered the store around 9:00 a.m. with another person and started

shopping. When he checked out, the credit card that appellant used was declined

three times before he successfully used a card supplied by his companion. The

trial court admitted a clip from Kohl’s video surveillance system depicting

appellant’s transaction.   Messinger identified appellant in court as the man

involved in the transaction.

      The State then questioned Messinger about a photo-array that Harris County

Constable’s Office deputies showed her. Messinger identified the exhibit, State’s

Exhibit 12, as the photo-array that was shown to her shortly after the incident. She

stated that she “[p]icked out the criminal and initialed [her] name.” Messinger

stated that the deputy never told her that she had to pick someone from the photo-

array and that the deputy never told her whom to pick from the photo-array. When

                                         6
the State formally offered this exhibit, defense counsel objected, stating, “Proper

predicate foundation has not been established for the entry of this photo lineup.”

The trial court overruled the objection and admitted the photo-array.

         The State did not call the deputy who prepared the photo-arrays and showed

the photo-arrays to Swan and Messinger as a witness. This officer had, in the

interim time period, retired from the Constable’s Office.

         The jury found appellant guilty of the state-jail-felony offense of credit card

abuse.        The trial court subsequently assessed punishment at ten months’

confinement.

                                 Admission of Evidence

         In his first issue, appellant contends that the trial court erroneously admitted

the O’Reilly Auto Parts receipt because it constituted inadmissible hearsay.

         A.     Standard of Review

         We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing

Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v.

State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of a

photograph is within the sound discretion of the trial judge.”). We will not reverse

the trial court’s ruling unless the ruling falls outside the zone of reasonable

disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State, 268 S.W.3d 571,

                                             7
579 (Tex. Crim. App. 2008) (holding that trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree”). In applying the abuse of discretion standard, we may not

reverse a trial court’s admissibility decision solely because we disagree with it.

See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not

disturb a trial court’s evidentiary ruling if it is correct on any theory of law

applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009).

      B.      Whether Credit-Card Receipt Constitutes Inadmissible Hearsay

      Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID.

801(d). Generally, hearsay is not admissible except as provided by, among other

rules, the rules of evidence. TEX. R. EVID. 802. The business-records exception

excludes the following from the hearsay rule:

      A memorandum, report, record, or data compilation, in any form, of
      acts, events, conditions, opinions, or diagnoses, made at or near the
      time by, or from information transmitted by, a person with
      knowledge, if kept in the course of a regularly conducted business
      activity, and if it was the regular practice of that business activity to
      make the memorandum, report, record, or data compilation, all as
      shown by the testimony of the custodian or other qualified witness, or
      by affidavit that complies with Rule 902(10), unless the source of
      information or the method or circumstances of preparation indicate
      lack of trustworthiness.



                                          8
TEX. R. EVID. 803(6); Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d). The predicate for the business-records exception thus has

three requirements: (1) the record was made by or from information transmitted by

a person with knowledge of the events or conditions recorded; (2) the record was

made at or near the time of the events or conditions recorded; and (3) it was in the

ordinary course of the reporting entity’s business to make and keep such records.

See TEX. R. EVID. 803(6); Perry v. State, 957 S.W.2d 894, 899 (Tex. App.—

Texarkana 1997, pet. ref’d). The rule does not require that the witness laying the

predicate for admission under this exception be an employee of the company

keeping the record, as long as he has personal knowledge of “the mode of

preparing the record.” Huff v. State, 897 S.W.2d 829, 839 (Tex. App.—Dallas

1995, pet. ref’d); see also Campos v. State, 317 S.W.3d 768, 778 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d) (stating that testifying witness “need only have

knowledge of how the record was prepared”).

      Appellant does not argue that a credit-card receipt from a store cannot fall

within the business-records exception. See, e.g., Thomas v. State, 226 S.W.3d 697,

705 (Tex. App.—Corpus Christi 2007, pet. dism’d) (holding that business’s receipt

books fall within business-records exception).        Instead, he argues that this

particular receipt should not have been admitted under this exception because the




                                          9
State did not establish the necessary trustworthiness of the document.           We

disagree.

      Swan testified regarding the sales procedure at O’Reilly Auto Parts. He

stated that when customers purchase a product, the sales associate obtains the

customer’s signature on a computer-generated receipt. The sales associate gives

one copy of the receipt to the customer and retains one copy for the store’s records.

According to Swan, each day’s receipts are stored in a box by the cash register. At

the end of each day, the receipts are counted and stored in the locked business

office. Swan stated that the receipts are made and kept in the normal course of the

store’s business. Swan also testified that he was the sales associate who conducted

this transaction on behalf of O’Reilly Auto Parts and generated the receipt at issue,

which he was able to determine because his particular employee number was

printed on the receipt. Thus, Swan testified that the receipt was made and kept in

the regular course of O’Reilly’s business, that O’Reilly’s regular practice was to

make a record of each transaction by generating a receipt via computer, that he

generated the receipt contemporaneously with the transaction, and that he had

personal knowledge of the transaction and was acting in the regular course of

business when he generated the receipt. See Perry, 957 S.W.2d at 899.

      The facts that Swan was not an O’Reilly employee at the time of trial and

that he was not O’Reilly’s records custodian do not affect the admissibility of this

                                         10
receipt. See Huff, 897 S.W.2d at 839 (stating that sponsoring witness does not

have to be employee of company keeping record as long as he has personal

knowledge of mode of preparing record). Furthermore, although Swan first stated

that he would not know if changes had been made to the receipt during the time

period between the transaction and the trial, he then stated, in an exchange with the

trial court, that he would be able to make this determination because O’Reilly’s

used a specific type of printer to print its receipts that is not commonly used by

others. 2

       We conclude that the trial court reasonably could have determined that the

O’Reilly Auto Parts receipt was sufficiently trustworthy to fall within the business-

records exception. We hold that the trial court did not abuse its discretion in

admitting this exhibit.

       We overrule appellant’s first issue.


2
       On appeal, appellant argues, “Mr. Swan did not produce the receipt introduced at
       trial. He did not bring it with him to court and could not explain how it came into
       the possession of the district attorney’s office. In fact, no witness testified as to
       how the O’Reilly Auto Parts receipt made it from the store to the possession of the
       district attorney’s office.” To the extent appellant argues that the State did not
       properly establish a chain of custody for the receipt, we note that we have
       previously held that “[a]lthough a showing of chain of custody is required where
       there are routine or generally unidentifiable or undistinguishable scientific tests or
       analyses, it is not an issue where the items introduced are easily and readily
       identifiable.” Edlund v. State, 677 S.W.2d 204, 210 (Tex. App.—Houston [1st
       Dist.] 1984, no pet.); see also Hartsfield v. State, 200 S.W.3d 813, 817 (Tex.
       App.—Texarkana 2006, pet. ref’d) (“Articles that are easily identifiable and are
       substantially unchanged normally do not require the introduction of a chain of
       custody.”).
                                             11
      C.     Whether Photo-Arrays Were Properly Authenticated

      In his second issue, appellant contends that the trial court erroneously

admitted the photo-arrays shown to Swan and Messinger because these photo-

arrays were not properly authenticated.

      Texas Rule of Evidence 901(a) provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” TEX. R. EVID. 901(a). This rule “does not require the State to

prove anything.” Garner v. State, 939 S.W.2d 802, 805 (Tex. App.—Fort Worth

1997, pet. ref’d) (emphasis in original); see also Silva v. State, 989 S.W.2d 64, 67–

68 (Tex. App.—San Antonio 1998, pet. ref’d) (holding same). Instead, the rule

“requires only a showing that satisfies the trial court that the matter in question is

what the State claims; once that showing is made, the exhibit is admissible.”

Garner, 939 S.W.2d at 805. Evidence may be authenticated or identified by

different methods, including testimony from a witness with knowledge that an item

is what it is claimed to be. TEX. R. EVID. 901(b)(1); Dossett v. State, 216 S.W.3d

7, 17 (Tex. App.—San Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d

59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). “Articles that are easily

identifiable and are substantially unchanged normally do not require the

introduction of a chain of custody.            If the item has distinct or unique

                                          12
characteristics, a witness may authenticate it by testifying that he or she has

previously seen the item at the relevant time and place and that the witness

recognizes it by its distinctive characteristics.” Hartsfield v. State, 200 S.W.3d

813, 817–18 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Outland v. State, 810

S.W.2d 474, 475 (Tex. App.—Fort Worth 1991, pet. ref’d) and Mendoza v. State,

69 S.W.3d 628, 631 (Tex. App.—Corpus Christi 2002, pet. ref’d)).

      At trial, defense counsel objected to the introduction of the photo-arrays

shown to Swan and Messinger on the ground that the State had not established the

appropriate predicate for admission of the photo-arrays. Defense counsel did not

elaborate or specifically explain what he thought the State had failed to prove. On

appeal, defense counsel argues, in contending that the photo-arrays were not

properly authenticated, that the State did not call the officer who generated the

photo-arrays and showed them to Swan and Messinger as a witness; the State

presented no testimony as to how this officer generated the photo-arrays; the State

did not produce the original photo-arrays; no one testified how the district

attorney’s office obtained the photo-arrays; no one testified that the photo-arrays

were unaltered; the photo-arrays were not established as a business or public

record “for hearsay purposes”; and it was not established that the photograph of

appellant used in the photo-arrays was a fair and accurate representation of him at

any time. Appellant also cites the United States Supreme Court’s decision in Neil

                                        13
v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), for the proposition that courts must

consider five factors in evaluating the likelihood of misidentification when a

witness is shown a photo-array. 3

      First, to the extent that appellant contends on appeal that the trial court erred

in admitting the photo-arrays because they constitute inadmissible hearsay, they

were impermissibly suggestive, and they did not contain a “fair and accurate

representation” of appellant, appellant has not preserved these complaints for

appellate review because he failed to object in the trial court on these grounds. See

Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986) (requiring defendant

to object to out-of-court identification procedure before trial court to preserve

error); Rodriguez v. State, 975 S.W.2d 667, 673 (Tex. App.—Texarkana 1998, pet.

ref’d) (holding same); Tapia v. State, 933 S.W.2d 631, 633 (Tex. App.—Dallas

1996, pet. ref’d) (“A party must make a timely and specific objection to hearsay to

preserve a complaint for appellate review.”). Furthermore, both the Court of

Criminal Appeals and this Court have previously held that the Biggers factors cited

by appellant need only be considered once a determination has been made that the

relevant out-of-court identification procedure was impermissibly suggestive, which

3
      These factors include: (1) the witness’s opportunity to view the criminal at the
      time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the
      witness’s prior descriptions of the criminal; (4) the level of certainty demonstrated
      by the witness at the time of identification; and (5) the length of time between the
      crime and identification. See Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct.
      375, 382 (1972).
                                           14
is not an issue in this appeal. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim.

App. 1995); Rios v. State, 263 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2005,

pet. dism’d, untimely filed).

      Second, appellant cites no authority for the proposition that only the officer

who either prepared the photo-array or showed the photo-array to the witnesses can

properly authenticate the photo-array, nor does appellant cite any authority for the

proposition that testimony concerning how the photo-array was generated is

necessary to authenticate the photo-array. Instead, to properly authenticate the

photo-arrays, the State need only present evidence sufficient to support a finding

that the photo-arrays are what the State claims them to be, e.g., the photo-arrays

shown to Swan and Messinger for the purpose of identifying the user of James

Jordan’s credit card. See TEX. R. EVID. 901(a); Garner, 939 S.W.2d at 805. This

may be accomplished by the testimony of Swan and Messinger, witnesses who

have knowledge that the exhibits in question are what the State claims them to be.

TEX. R. EVID. 901(b)(1); Dossett, 216 S.W.3d at 17; Martinez, 186 S.W.3d at 62.

      Here, Swan and Messinger identified State’s Exhibit 2 and State’s Exhibit

12, respectively, as the photo-arrays shown to them by a Harris County

Constable’s Office deputy. They both identified their signatures next to the picture

that they had selected. See Hartsfield, 200 S.W.3d at 818 (stating that witness may

authenticate exhibit by testifying that he or she saw exhibit at earlier time and

                                        15
recognized it by distinctive characteristic). This testimony is sufficient to satisfy

the trial court that the exhibits were what the State claimed them to be—the photo-

arrays shown to Swan and Messinger. See TEX. R. EVID. 901; Garner, 939 S.W.2d

at 805.

      We hold that the trial court did not abuse its discretion in admitting the

photo-arrays shown to Swan and Messinger.

      We overrule appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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