NO. 07-04-0045-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D SEPTEMBER 6, 2005

______________________________ DOUGLAS ARNOLD, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-400,857; HON. CECIL PURYEAR, PRES IDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and REAVIS, and CAMPBELL, JJ. Ap pellantDouglas Arnold was convicted of possessi ng a controlled substance , namelymethadone. He challenges the conviction by contending the trial court erred in 1) failing to grant his motion to suppress, 2) failing to charge the jury with the law applicable to illegally

seized evidence, 3) failing to charge the jury with respect to extraneous offenses, and 4) denying his request for a continuance for time to obtain the appearance of a material witness. We affirm the judgm ent of thetrial co urt.1 The letter w as a ddre sse d to a ppe llant at a truck s top a nd w as th erefo re un delive rable

. 2 Background On July 8, 2002, a female went to the Federal Express office in Lubbock to send an overnightletter. The customer service a gent, Bridget White, smelled the odor of marijuana
on the letter. After accepting the package, she notified her sup e rvisor, Tammy Mapp. Another supervisor was summoned and, pur suant toFederal Express policy, the package
was opened by the two supe rvisors. The letter contained a black tar substance within other packaging. The police were contacted, and Investigator Manuel R eyna took possession of the pa ckage after determi ning tha t he beli eved it to contai n heroin

. Several days later, the person to whom the package was addressed, l ater identified
as appellant, arrived at the office seeking to c lai m the package. 1 Reyna was contacted, and at his d irection , a “dummy”packagewas prep ared and given to appellant. As appellant
was leaving the Federal Express office, he was stopped and questioned by Reyna and Officer Michelle Fletcher. Appellant admitted that the sende r of th e package was a prostitut e and that

he was aheroin u ser. He also gave consent for a search of his vehicle (a commercial 18 wheeler). Hypodermic needles and an aspirin bottle containi ng a small bottle of liquid were found inside. The bottle was later determined to contai n 11.96 g rams of methad one for w hich app ellant d id not ha ve a pres cription

.

Issues 1 & 2 - Motion to Suppress and Charge E rror Appellan t argues in his first issue that the trial court erred in faili ng to suppress evidence obtained as a result of the search of the envel ope and th e vehicle and the questioning of him by police. We overrule the issue.3

Search of the Envelope We review the trial court’s ruling on a m otion to su ppress un der the standard announced in Johnson v. S tate, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v. State, 955 S.W.2 d 85 (Tex . Crim. Ap p. 1997). In doing so, we give almost total deference to the trial co urt’s findings of historical fact and review de novo the application of the law to the fac

ts. Johnson v. State, 68 S.W.3d at 652-5 3. The air bill used by Federal Ex press provides that the company retains the right “to open and ins pect . . . p ackages . . . .“ Th e company also retains theright to reject a shipmentwhen, among other things, the shipmen t is prohibited by law. When persons choose to use Federal Express, they are on notic e of those rights. United States v. Young, 350 F.3d 1302, 1307-1309 (11 th Cir. 200 3). When a p rivate overnight shipper such as Federal Express inspects a package to assure it i s not being used as a mean s to deliver contraband, the search is a private one and do es not offend Fourth Amendment rights. United States v. Jacobse n, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984); United States v. Young, 350 F.3d at 1309 ; United S tates v. B arry, 673 F.2d 912, 914- 15 (6 th Cir. 198 2). However, appella nt arg ues that the act o f the Federal Express employees in openi ng a package addressed to him violates §1702 of Title 18 of the United States Code. That section p rovides:

Whoever takes any let ter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depo s itory, or in the custody of any letter or mail carrier, before it has bee n delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry in to the bu siness o r secrets of anothe r, or ope ns, secretes,4

embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C.A. §1702 (2000). Appellant bases his argument on the fact that two employees of Federal Express answered affirmatively to his que stion whether Federal Express was an “authorized depository for mail matter” although they alsotestified thatFederal Express was not a ssociate d with th e United States P ostal Se rvice. Initially, we note that this statute falls within Chapter 83 of Title 18, which is entitled “Postal Service.” Further, it has been stated that an “authorized deposi tory” of the mail is
one that is a part of the United States Postal Service’snationw ide syste m for the d elivery and receipt of m ail. Uni ted States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114 , 128, 10 1 S.Ct. 26 76, 2684 , 69 L.Ed .2d 517 ( 1981). It has also been decided that a le tter withi n th e contemplation of the statute is one that is sent and received through the Post Offi ce Depar tment. United States

v. Maxwel

l, 137 F. Supp. 298, 303 (W.D. Miss ouri 195 5), aff’d, 235 F.2d 930 (8 th Cir. 1956). We have further foun d authority holding that §1702 is applicable to mail within the control and responsibility of the United States Postal Service

. United S tates v. A shford, 530 F.2d 792, 795(8 th Cir. 1976) (holding that the statute applies to mail that is the responsibi lity of the United States Postal Service) ; United S tates v. Bradford, 493 F.2d 1282, 12 84 (7 th Cir. 1974) (stating that §1702 applies to anything transferred by the postal serv ice); Giraud v. United S tates, 348 F.2d 820, 822 (9 th Cir. 1965) (holding that it is incumbent to establi sh as one of th e elemen ts of the offense that the check taken had been in the Unite d States mail); United States v. Lorenzen, 6 C.M.A. 512, 515 (1955) (holding that the federal act clearly requires the object to be mail matter in the custody of the United States Postal Service). Appellant cites to no5

authority and we have found none holding that the statute applies to private freight and mail carrierssuch as Federal Express. Based on these authorities, the se arch of the envelope by the Federal Express employees was not illegal and did not warrant the suppression of its contents nor did it serve as a bas is to find the detention and questioning of appe llant and the searc h of his vehicleillega l. Custodial Interrogation and Consent to Search Appellant

also claims that the statements he made in response to police questioning should be suppressed because the police officersfailed to comply with article 38.22 §3(a) of the Codeof Crimi nal Proc edure wh ich requ ires an o ral recor ding. Ho wever, th e statute applies only to c ustodial interrog ations. T EX
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. art. 38.22 §3(a) (Vernon 2005). Appellant contends he was in custody because a reasonable person would have believe d he wasnot free to leave d ue to the fact he was the only person on whom the attention of the police was focus ed, the n umber of p olice of ficers pre sent (two ), the natu re of the questioning, and the fact he was told he was being d etained for questi oning. F urther, he argues, his continued detention after the purpose for which he had been detained (the identification of the person who sent him the package) and the requ est to search his vehicle violated his cons titutiona l and sta tutory rig hts. A police officer may temporarily detain a person if he has reasonable suspicion that criminal activity

is afo ot and th e person is invol ved in i t. See Garci a v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (defining reasonable suspi cion as speci fic artic ulable f acts wh en combined with rati onal inf erences f

rom those facts whi ch would lead an officer to reasonablysuspect that a particular person has engaged or is or soon will be engaging in criminal activity). The officers knew that appellant had been mai le d an overnight letter6

containing whatwas believed to be heroin and that appellant had claimed what he believed to be that package when it was undeliverable. In the absen ce of other evidence, possession of an unopened package received by mail or co mmon carrier and containing drugs does not warrant an inference beyond a reasonabl e doubt thatthe acc used knowingly

possesse d drugs. Barber v. State, 757 S.W.2d 83, 86 (Tex. App.–Houston [14 th Dist.]1988, pet. ref’ d). Howev er, evide nce demon strating knowled ge of t he contents can be shown by claiming a box add ressed to the accused and known by l aw enf orcement agents to contai n drugs. Barber v. State, 757 S.W.2d at86. At th e very le ast, the o fficers had reasonable suspicion on the facts known to them to detain appellant for questioning. Furthermore, even assuming the officers did not have pro bable ca use to search the vehicle after app ellant confessed to being a heroin user and displayed traits of one, under both fe deral an d state l aw, an of ficer may seek vol untary co nsent to s earch. State v

. Perez, 85 S.W.3d 817, 819(Tex. Cr im. App. 2 002); James v. State, 102 S.W.2d 162, 173 (Tex. App.–Fort Worth 2003, pet. ref’d ). He ne ed not have reasonable suspicion or probable cause to do so as long as the officer do es not indicate that compliance is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Cr im. App. 1 997); Middleto n v. State , 9 S.W.3d 428, 431 (Tex. App.–Houston [14 th Dist.] 19 99, no pe t.). Reyna testified that he i dentifi ed himself to appellant, asked for appe llant’ s identification, read him his Miranda warnings, and told him he was not under arrest but was just being detained for

question ing. The basis for that questioning, according to Reyna,
was the fact t hat he be lieved t he overni ght lette r appell ant was to receive contained heroin. While Re yna was q uestioni ng appel lant as to the iden tity of the person who had sent the lett er and whether appellant knew what was in the letter, he noticed that appellant was7

nervous, shaking, and claimed to be cold even tho ugh the officer knew the temp erature
was in the upper eighties. Reyna identified the symptoms as those of drug users. Reyna told appellant what was in the package and then asked him if he was a heroin user and if he was surprised that someone was sending him heroin. Appellan t responded “yes” to the first questio n and di d not resp ond to th e second . During this ti me, app ellant was not in handcuffs

or sitting in the patrol car. Reyna then asked if he could search the vehicle after explaining to appellant

that he had the right to refuse. Appellant gave his consent. A fter the search, appellant was released pending the filing of charges. Under these facts, the trial court could have concluded that appellant was not in custody but was only temporarily detained for inve stigatio n. Because there is no evidence that the evidence was illegall y seized in violation of
a statute, see T EX
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. art. 38.23 (a) (Vernon 2005) (stating that in any
case where the legal evidence raises an issue whether the evidence was obtained i n violation of the laws of the stat e or the United States, the jury shall be instructed that if i t has reasonable doubt that the evidence was obtain e d in viola tion thereof, the jury shall disregar d any evidence so obtained), the trial court did not err in failing to chargethe jury on the same. Issue 3 - Charge on Extraneous Offenses Next, appellant contends that the trial court erre d in failing to charge the jury that extraneous offensesmay be co nsidered only for limited purposes
. We overrule the issue. There was evidence that appellant was a heroin user and had drug paraphernalia in his vehicle thereby indicating he may have p ossessed controlled substances. Also, th ere was evidence that appellan t associated with a prostitute. Appellant objected to the trial8

court’s jury charge because it did not contain an instruction with respect to extraneous offenses. However, a request for a lim iting in struction with respect to extraneous offenses must be made at

the time the evidence is admitted or else the evid ence is admitted for all purposes. Hammo ck v. Stat e, 46 S.W.3d 889, 895(Tex. Cr im. App. 2 001); Reyes v. State, 69 S.W.3d 725, 741 (Tex. Ap p.–Corpu s Christi 2002, pet. ref’d). Because appellant failed to request a limiting instruction at the earliest opportunity, the trial court did not err in excludi ng the in struction from its ju ry charge

. Hammo ck v. Stat e, 46 S.W.3d at 895. Issue 4 - Motion for Continuance In his last issue, appellant complains of the trial court’s failure to grant his motion for continuance. Appellant moved for the continuance after the State had rested its case. We overrule the issue. The denial of a motion for continuance is reviewed under the standard of abuse d discretion. Wright v. St ate, 28 S.W .3d 526, 532 (Tex. Crim. App. 2000). A continuan ce may be granted on the motion of the defendant after the trial has begun “when it is made to appear to the satisfaction of the court that by some unexp ected occurrence since the trial began, which no reasonable diligence co uld have anticipated, the applicant is so taken by surprise that a fa ir trial cannot be had.” T EX
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. art. 2 9.13 (V ernon 1989). Before the commencement of trial, appellant informed the court that he had learned the name of awitness , spoken to her, and issued a subpoena for her attendance at trial; however, he had “a strong suspicion” that she would attempt to avoid service. Nevertheless, appellant felt he could obtain service within the necessary time. After the State rested, appellant informed the court that 1) the witness had told him she had placed2 The re w as n o affida vit or tes timo ny to th is effec t. 9 the m eth adone in appellant’s vehicle, 2 2) she did not want to testify, and 3) he had been unable to serve a subpoena on her at the address where he believed she resided. On that basis, appellant sought a continuance. The court found that appella nt had ma de adequ ate attempts to locate the witness and compel her attendance and that further attempts would be unsuccessful. Therefore, the motion was denied. Appellant

w as aware pr ior to the commencement of trial that the witness was unwill ing to appea r at trial and that she would attempt to avoid service of process. The motion for continuance makes no sho wing of any unexpected occurrence which no reasonable dilige nce coul d have an ticipate d. See Marti nez v. Sta te, 867 S .W.2d 30, 40 (Tex. Crim. App. 1993) (holding that the defenda nt was aware of thepotentia l that the State would call an expert witness during the pu nish ment phase wh ich he might need to rebut
so there was no unexpected occurrence). Furthermore, appellant (through his a ttorne y) informed the court that he suspected she would invoke h e r Fifth Amendment privilege againstself-incrimination even if service was obtai ned on h er. Thiscoupled with the prior representation that the witness may avoid service of the subpoena isalso some indication that she may not have been availableto testif y. Rodriguez v. State , 21 S.W.3d 562, 565-66 (Tex. App.–Houston [14 th Dist.] 2000, pet. ref’d) (stating that a continuance may be denied when the evidence fails to indicate a probabili ty that the witness can be secured by a postpone ment). Under these circumstances, we find no abuse of discretion on the part of the trial court in denying the motion. Accordingly, the judgment of the trial court is affirmed.10 Per Curiam

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