Opinion issued July 22, 2014




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-13-00077-CR
                         ———————————
                      JARED LEN CRUSE, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 75th District Court
                        Liberty County, Texas*
                     Trial Court Case No. CR29782




*
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred the appeal to this Court. See Misc. Docket No. 13–9008 (Tex.
     Jan. 17, 2013); see also TEX. GOV’T CODE ANN. § 73.001 (West 2013)
     (authorizing transfer of cases).
                         MEMORANDUM OPINION

      Appellant Jared Len Cruse was convicted of aggravated sexual assault of a

child and sentenced to life in prison. See TEX. PENAL CODE ANN. § 22.021 (West

2011). In this appeal, he argues that the trial court erred by admitting a video

recording of his offense because it was discovered on his mobile phone after a

police officer had seized it without a warrant. A warrant was obtained before the

contents of the phone were searched. Because the record does not demonstrate that

in the factual circumstances of this case the officer was required to obtain a

warrant prior to the initial seizure of the phone, we affirm with a modification to

the judgment.

                                  Background

      Jared Cruse, then aged 18, was one of several young men and boys who

sexually assaulted the complainant, an 11-year-old girl, at an abandoned trailer

home in Cleveland, Texas. Cruse recorded a video of the offense using his mobile

phone.

      Antonio Ford, then the Chief of the Cleveland Independent School District

Police, began an investigation. He interviewed the complainant, who reported that

several of her assailants recorded the incident with their phones. Ford received a

request from the City of Cleveland Police Department to locate Cruse. Ford found

Cruse in the hallway of the high school and detained him in his office, along with


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another suspect. In the office, Ford took both suspects’ phones and labeled them.

When a city police officer arrived, Ford gave the phones to him. At no time did

Ford view the contents of the phones or otherwise access any data contained on

them. Later that day, a detective obtained a warrant to search Cruse’s phone. As a

result, the police discovered the video recording of Cruse’s offense.

       A grand jury indicted Cruse for aggravated sexual assault. Prior to trial, he

filed a motion to suppress the video. At a pretrial conference, the court decided not

to hold a pretrial hearing on the motion to suppress, but to carry the motion with

the trial.

       At trial, the State offered the testimony of officers who had custody of

Cruse’s phone, including Ford, the officer who obtained the search warrant, and

the forensic specialist who extracted the video. When the State offered the video

into evidence, Cruse objected. His counsel stated that his “only concern here” was

“Chief Ford and the fact that he seized the two cell phones without a warrant at

that particular time.” The court overruled the objection and admitted the evidence,

stating:

       I’m going to overrule your objection. I’m going to find that there is no
       expectation of privacy of the cell phones themselves exclusive of the
       contents of the cell phone, that there is no expectation of privacy of
       the physical object itself, and therefore, it does not present a search
       issue under the Fourth Amendment.




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In addition to the video evidence, the State identified Cruse as one of the assailants

through the testimony of the complainant, a cooperating witness who had also

participated in the crime, and a nurse who served as an outcry witness. The jury

found Cruse guilty, and after a punishment hearing, it sentenced him to life

imprisonment. Cruse timely filed notice of appeal.

                                       Analysis

I.    Seizure of mobile phone

      Cruse argues that Ford violated the Texas and federal constitutions by

seizing his phone without a warrant. Cruse has challenged only the initial seizure

of his phone and not the search of its contents that followed pursuant to a warrant.

       “In reviewing a trial court’s ruling on a motion to suppress, appellate courts

must afford great deference to the trial court’s findings of historical facts as long as

the record supports those findings.” Tucker v. State, 369 S.W.3d 179, 184 (Tex.

Crim. App. 2012). “An appellate court affords ‘almost total deference to a trial

court’s determination of historical facts’ and reviews de novo the court’s

application of the law of search and seizure.” Id. “When the trial court does not

make findings of fact, appellate courts view the evidence in the light most

favorable to the trial court’s ruling and assume that the trial court made implicit

findings ‘that buttress its conclusion.’” Id. “We will sustain the trial court’s ruling

if that ruling is ‘reasonably supported by the record and is correct on any theory of


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law applicable to the case.’” Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex.

Crim. App. 2010).

       The federal constitution declares, “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” U.S. CONST. amend. IV. The Texas

Constitution states, “The people shall be secure in their persons, houses, papers and

possessions, from all unreasonable seizures or searches . . . .” TEX. CONST. art. I,

§ 9.

       The prohibition on unreasonable seizures is distinct from the prohibition on

unreasonable searches. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.

Ct. 1652, 1656 (1984). “A ‘seizure’ of property occurs when there is some

meaningful interference with an individual’s possessory interests in that property.”

Id. “A ‘search’ occurs when an expectation of privacy that society is prepared to

consider reasonable is infringed.” Id.

       During his testimony, Ford acknowledged that he seized Cruse’s phone.

Ford’s testimony, however, did not describe the manner in which he took

possession of the phone. For example, the record gives no indication whether Ford

commanded Cruse to give him the phone, whether he took the phone from Cruse’s

hand, or whether he retrieved the phone during a search of Cruse’s pocket.




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      “To suppress evidence on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). As part of this initial burden, the defendant must show that a

search or seizure occurred. Id. In this case, Cruse did not present evidence at trial,

and has not argued on appeal, that Ford obtained the phone as the result of an

illegal search or detention of his person.

      Adhering to the presumption of proper police conduct, we will not assume

that Ford obtained access to the phone as a result of an improper search or

detention. See id. Accordingly, our review is confined to whether Ford’s

interference with Cruse’s possession of the phone, i.e., his seizure of the phone,

was lawful. See Jacobsen, 466 U.S. at 113, 104 S. Ct. at 1656.

      “[T]he Texas Constitution contains no requirement that a seizure or search

be authorized by a warrant. Thus, a seizure or search that is otherwise reasonable

will not be found to be in violation of the state provision because it was not

authorized by a warrant.” Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App.

1998). In contrast, a seizure of personal property is ordinarily considered “per se

unreasonable within the meaning of the Fourth Amendment unless it is

accomplished pursuant to a judicial warrant issued upon probable cause and




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particularly describing the items to be seized.” United States v. Place, 462 U.S.

696, 701, 103 S. Ct. 2637, 2641 (1983).

      To support his appellate challenge, Cruse relies upon the recent Fourth

Amendment decision of the Court of Criminal Appeals in Turrubiate v. State, 399

S.W.3d 147 (Tex. Crim. App. 2013). In that case, the Court held, “When a

defendant moves to suppress evidence based on a warrantless search, the State has

the burden of showing that probable cause existed at the time the search was made

and that exigent circumstances requiring immediate entry made obtaining a

warrant impracticable.” Turrubiate, 399 S.W.3d at 151. Cruse argues that the State

did not present adequate evidence of exigent circumstances to justify the seizure of

his phone without a warrant.

      Cruse’s invocation of Turrubiate (a case involving the warrantless search of

a home) is inapposite because he has not challenged a search but rather the seizure

of his personal property. As previously explained, the record is silent as to whether

a warrantless search occurred, and in that silence, we adhere to the presumption of

proper police conduct. See Ford, 158 S.W.3d at 492. We thus assume that Ford

was lawfully in a position to view and access Cruse’s phone when he seized it.

      “[I]f police are lawfully in a position from which they view an object, if its

incriminating character is immediately apparent, and if the officers have a lawful

right of access to the object, they may seize it without a warrant.” Minnesota v.


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Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2136–37 (1993). An object’s

incriminating character is considered immediately apparent if an officer has

probable cause to believe it contains contraband. See Arizona v. Hicks, 480 U.S.

321, 326–27, 107 S. Ct. 1149, 1153–54 (1987); Jacobsen, 466 U.S. at 121–22, 104

S. Ct. at 1661; State v. Dobbs, 323 S.W.3d 184, 189 (Tex. Crim. App. 2010).

      Cruse has not argued that Ford lacked probable cause to seize the phone. At

trial, he complained only that Ford “seized the two cell phones without a warrant at

that particular time.” When asked during cross-examination “what probable cause”

he had to seize the phone, Ford replied, “[T]he fact that I had been advised that

[Cruse] had taped himself having sex with her and it was told to us that multiple

individuals had photographed it.” Ford had previously testified that he had

interviewed the complainant and learned from her that mobile phones had been

used to record her assault. Subject to certain defenses, it is a crime to possess

images of a child engaging in sexual conduct, and therefore, such images are

contraband. See TEX. PENAL CODE ANN. § 43.26 (West 2011).

      As Ford had probable cause to believe that Cruse’s phone contained

contraband and because we assume, pursuant to the presumption of proper police

conduct, that Ford was in a position from which he could lawfully observe and

access the phone, he was not required to obtain a warrant before seizing the phone.

See Dickerson, 508 U.S. at 375, 113 S. Ct. at 2136–37; Ford, 158 S.W.3d at 492.


                                         8
Accordingly, the trial court did not err in overruling Cruse’s objection to admission

of the video. Cruse’s issue is overruled.

II.   Modification of judgment

      The jury found Cruse guilty of the felony offense of aggravated sexual

assault of a child, as charged in the indictment. The indictment alleged that Cruse

had intercourse with a child younger than fourteen and did so in concert with

another person who also had intercourse with the child in the same criminal

episode. See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(v). The minimum term of

imprisonment for such an offense is 25 years. See id. § 22.021(f)(2). The offense is

classified as a first-degree felony. Id. § 22.021(e). The range of punishment

specified for Cruse’s offense therefore included imprisonment for life or for any

term of not more than 99 years or less than 25 years. Id. §§ 12.32(a), 22.021(f)(2).

      In the punishment phase of the trial, the jury was correctly so charged, and it

assessed Cruse’s punishment as confinement for a term of life. When the judge

pronounced sentence orally, he sentenced Cruse to imprisonment for “a period for

and during your natural life.” Nevertheless, although the oral pronouncement of the

sentence made no reference to the possibility of parole, the trial court’s written

judgment specified punishment as “LIFE IN THE INSTITUTIONAL DIVISION,

TDCJ WITHOUT POSSIBILITY OF PAROLE.” Life without parole is within the

range of punishment specified under the Penal Code for capital felonies, see id.


                                            9
§ 12.31(a), but not for first-degree felony, see id. § 12.32(a). Government Code

section 508.145(a) currently specifies that Cruse and others convicted of an offense

punishable under Penal Code section 22.021(f) are ineligible for release on parole.

TEX. GOV’T CODE ANN. § 508.145(a) (West 2012). However, that is a function of

an inmate’s eligibility for parole under the Government Code, not an aspect of the

sentence for his offense under the Penal Code section 22.021.

      “[W]hen there is a variation between the oral pronouncement of sentence

and the written memorialization of the sentence, the oral pronouncement controls.”

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). When an appellate

court has the necessary data and evidence before it for reformation, the judgment

and sentence may be reformed on appeal. Banks v. State, 708 S.W.2d 460, 462

(Tex. Crim. App. 1986). Therefore, we will modify the judgment in this case to

reflect the oral pronouncement of sentence, and remove the words “WITHOUT

POSSIBILITY OF PAROLE.”




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                                    Conclusion

      We affirm the judgment of the trial court as modified to remove the words

“WITHOUT POSSIBILITY OF PAROLE.”




                                                Michael Massengale
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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