Before PARKER and DOSS and YARBROUGH, JJ. The State of Texas charged Appellee, William Robinson, with the offense of possession of methamphetamine in an amount of four grams or more but less than 200 grams in a drug-free zone.[1] Before trial, the trial court granted Appellee’s motion to suppress evidence and the State appealed this order. We affirm the suppression order. .BACKGROUND On January 25, 2021, Hereford Police Department officers went to a residence owned by Derrick Adams to effectuate an arrest warrant for Appellee. The officers found Appellee and Amanda Dandridge in a bedroom. The officers immediately removed Dandridge from the bedroom and placed Appellee under arrest. While arresting Appellee, officers observed a “bong” containing a red liquid in the room. One of the officers, Garrett Hutchens, picked up the bong but then set it back down where he found it. No testing or measurements of the liquid were performed at that time. As officers were escorting Appellee to a patrol car, Dandridge requested permission to go back into the bedroom to put on pants.[2] The officers allowed Dandridge to return to the room while the officers were outside of the house. Hutchens re-entered the house to retrieve the bong, but it was not where he had previously seen it. Dandridge, who was still in the room, admitted that she had moved the bong under a stack of clothing. Because Dandridge was still not wearing pants, the officers again left her alone in the room with the bong. A few minutes later, Hutchens re-entered the bedroom, took physical possession of the bong, and arrested Dandridge for possession of a controlled substance and tampering with evidence. Before Appellee’s trial, he filed a motion to suppress forensic analysis of evidence relating to the bong. During the suppression hearing, the body camera video footage from two of the officers was admitted into evidence. In the videos, Hutchens picks up the bong and asks Appellee if this “meth pipe” is his. Subsequently, the officers left Dandridge alone in the room with the bong on two separate occasions. Testifying officers admitted that they have no knowledge of what Dandridge did to the bong during the times she was left in the room unattended. Following the hearing, the trial court granted Appellee’s motion to suppress the results of forensic analysis of the bong because the chain of custody had been broken after the officers first took possession of the evidence. From this ruling, the State timely appealed. See TEX. CRIM. PROC. CODE ANN. art. 44.01(a)(5) (authorizing State to appeal grant of motion to suppress). By its appeal, the State presents one issue contending that the trial court abused its discretion in suppressing the forensic analysis evidence because the State proved the beginning and end of the chain of custody and no tampering occurred within the chain. Appellee contends that the officers took possession of the bong when they secured the bedroom, and the chain of custody was broken when Dandridge was left unsupervised in the bedroom with the bong on two separate occasions. STANDARD OF REVIEW In reviewing a trial court’s ruling concerning a motion to suppress, appellate courts afford almost total deference to the trial court’s determination of historical facts that the record supports, especially when the trial court’s findings are based on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). This standard is also utilized when reviewing mixed questions of law and fact if those questions depend on the credibility and demeanor of the witnesses. Id. However, an appellate court may review mixed questions of law and fact that do not depend on credibility and demeanor de novo. Id. Because the evidence in the present case is undisputed, resolution of the suppression issue does not require consideration of the credibility and demeanor of the witnesses. When the trial court fails to file findings of fact, the reviewing court views the evidence in the light most favorable to the trial court’s ruling and presumes that the trial court made implicit findings of fact that support its ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). Review of the trial court’s rulings by a court of appeals, both as to the facts and the legal significance of those facts, is limited to a determination of whether the trial court abused its discretion. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). LAW The admissibility of evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Before physical evidence is admitted, it must be identified by “evidence sufficient to support a finding that the item is what its proponent claims it is.” TEX.R.EVID. 901(a). This can be accomplished by testimony from a witness with knowledge that an item is what it is claimed to be. TEX. R. EVID. 901(b)(1); see also Davis v. State, 992 S.W.2d 8, 11 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The chain of custody begins when the law enforcement officer takes possession of the evidence. Pierson v. State, No. 12-10-00017-CR, 2011 Tex. App. LEXIS2356, at *5 (Tex. App.—Tyler Mar. 31, 2011, pet. ref’d) (mem. op., not designated for publication). Possession means “actual care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(39). Proof of the beginning and the end of the chain of custody is sufficient to support admission of the evidence absent any showing of tampering or alteration. Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref’d). However, when there is reason to believe that the evidence has been tampered with, a “more elaborate foundation” is required. Bonds v. State, 573 S.W.2d 528, 533 (Tex. Crim. App. 1978). Such a foundation “will commonly entail testimonially tracing the ‘chain of custody’ of the item with sufficient completeness to render it improbable that the original has either been exchanged with another or been contaminated or tampered with.” Id. (quoting C. McCormick, Handbook on the Law of Evidence, § 212, at 527 (2nd ed. 1972)). ANALYSIS Neither party to the present appeal disputes that the chain of custody begins when law enforcement takes possession of the evidence. Pierson,2011Tex. App.LEXIS2356, at *5. Rather, the key issue in reviewing the trial court’s suppression ruling is determining when law enforcement took possession of the evidence. The evidence establishes that the police officers secured the bedroom containing the bong when they removed Dandridge and Appellee from the room. Further, the evidence establishes that, at this time, Hutchens knew of the bong’s presence in the room, that the bong was a “meth pipe,” and that it constituted evidence in the ongoing criminal investigation. Because the officers exercised actual custody, control, and management of the bedroom after Dandridge and Appellee were removed from the room, we conclude that the State had possession of the bong at that time. See TEX. PENAL CODE ANN. § 1.07(39). After obtaining possession of the bedroom and, consequently, the bong, the chain of custody was twice broken by officers allowing Dandridge unsupervised access to the bedroom. However, we are mindful that “[g]aps or theoretical breaches in the chain of custody do not affect the admissibility of the evidence, absent affirmative evidence of tampering or commingling.” Pierson, 2011 Tex. App. LEXIS 2356, at *6. Here, that Dandridge tampered with the evidence is established by the fact that she, at least, attempted to hide the bong. Further, the officers felt that this was sufficient evidence of tampering that they arrested Dandridge for the offense of tampering with evidence. Because there is affirmative evidence that Dandridge tampered with the bong, a “more elaborate foundation” is required before the evidence can be admitted. Bonds, 573 S.W.2d at 533. However, the State did not present any evidence at the suppression hearing that traced the chain of custody of the bong “with sufficient completeness to render it improbable that the original has either been exchanged with another or been contaminated or tampered with.” Id. As such, we conclude that the bong was not sufficiently authenticated for it to be admissible. See TEX. R. EVID. 901(a). We overrule the State’s sole issue. CONCLUSION Because we conclude that the evidence was not sufficiently authenticated, we overrule the State’s sole issue and affirm the trial court’s suppression order. Judy C. Parker Justice Do not publish.
