                           NUMBER 13-17-00033-CR

                              COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


AARON MULUGETA MICAEL,                                                      Appellant,

                                               v.

THE STATE OF TEXAS,                                                          Appellee.


                       On appeal from the 22nd District Court
                             of Hays County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       By two issues, appellant Aaron Mulugeta Micael challenges his conviction for

possession of marijuana in an amount of less than five pounds but more than four ounces,

a state jail felony.    See TEX. HEALTH & SAFETY CODE ANN. 481.121 (West, Westlaw

through 2017 1st C.S.). Micael alleges that: (1) his federal and state constitutional

rights were violated by the search of a sealed container without a warrant or consent, and
(2) he was egregiously harmed by the lack of a jury instruction regarding an extraneous

offense. We affirm.

                                      I.      BACKGROUND1

       During trial, the following evidence was presented:               on February 18, 2016,

members of the Hays County Narcotics Task Force conducted surveillance in San

Marcos, looking for Micael. Members of the task force had received information that

Micael was known to distribute drugs in the area, and they were looking for any traffic

violations to detain him.

       Detective Jayson Cormier, a San Marcos Police Department detective and

member of the narcotics task force, observed Micael’s Dodge Charger commit two traffic

infractions: failure to come to a complete stop at a red light and failure to signal a right-

hand turn. See TEX. TRANSP. CODE ANN. §§ 544.004, 545.104 (West, Westlaw through

2017 1st C.S.). Detective Cormier used his cell phone to take video of Micael’s traffic

infractions and then requested a San Marcos Police Department patrol officer conduct a

traffic stop. Detective Cormier explained during trial that members of the narcotics task

force drive unmarked undercover vehicles and dress in plain clothes, so they request

uniformed officers to conduct traffic stops when necessary.

       Officer Brian Beach of the San Marcos Police Department was on patrol in the

area, witnessed Micael’s traffic violations, and proceeded to pull over the vehicle Micael

was driving. Officer Beach testified that when he approached Micael’s vehicle to ask for



         1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was

transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
                                                  2
his driver license and insurance information, he smelled the odor of fresh marijuana from

inside the vehicle. After speaking to Micael while waiting on dispatch to clear Micael’s

driver’s license and insurance, Officer Beach asked Micael about the odor of marijuana

and explained that he could conduct a probable cause search of the vehicle. While

explaining that Micael was not under arrest but being detained for officer safety, Officer

Beach had Micael step out of the vehicle and placed him in handcuffs.2 Officer Beach

stated he looked for weapons concealed in the driver’s area of the vehicle and then

proceeded to the backseat area behind the driver due to the number of items located

there. Officer Beach removed a large cardboard box, which was taped closed, from the

backseat and placed it on the ground outside the vehicle. He noticed that while the box

had Micael’s name spelled phonetically correct, the box was addressed to “Erin Micael.”

Upon completing the search of the backseat area, Officer Beach placed the box in the

backseat area of the vehicle and cut open the tape. Officer Beach testified that due to

the vehicle exception to the warrant requirement, he could open the box.                          He also

explained that the odor of marijuana became stronger when the box was opened and that

he saw manila envelope packaging inside the box.

        Prior to testimony beginning on the second day of trial, Micael filed a motion to

suppress. In an exchange with the trial court, Micael argued the search was illegal and

there was no probable cause to detain Micael. Micael requested that the trial court carry

the motion to suppress with the trial. He believed the evidence would show that Officer



          2 On the video introduced as State’s Exhibit 9, Officer Beach told Micael that if nothing was found

during the search of the vehicle, then he would be free to go, as Officer Beach had no intention of issuing
a traffic citation to Micael.
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Beach was not being truthful about smelling marijuana outside Micael’s vehicle, and

therefore, all the evidence found after the box was opened would be illegal.

       Officer Beach continued his testimony on the second day of trial. He explained

that he initially took the box out of Micael’s vehicle to look for weapons in plain sight.

Officer Beach explained that inside of the box were manila envelopes, which had been

opened previously, that contained vacuum-sealed plastic packages that appeared to

contain marijuana. Officer Beach stated he could still smell the marijuana through the

vacuum-sealed plastic. Once the marijuana was discovered, Micael’s detention became

an arrest.   Officer Beach read Micael his Miranda warnings, and Micael told him it

appeared the box had been opened prior to him receiving it. See Miranda v. Arizona,

384 U.S. 436 (1966). Micael also questioned Officer Beach regarding whether the officer

could open the box.       Officer Beach turned Micael over to narcotics task force

investigators when they arrived on scene. Officer Beach later took Micael to the local

police station.

       Detective Lee Harris, also with the San Marcos Police Department and Hays

County Narcotics Task Force, testified that he received information that Micael was

known to distribute large amounts of drugs in the local area. He explained the task force

was on the lookout for Micael, and when Detective Cormier saw Micael, Detective Harris

proceeded to the scene. Detective Harris agreed that he could distinctly smell marijuana

as he approached Micael’s vehicle.       He stated that high-potency marijuana has a

stronger smell than lesser quality marijuana. Detective Harris approached Micael and

audio-recorded the conversation on his phone. Micael explained that he received the


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package the day before and that he noticed it was his name, but misspelled. Micael

further stated that there was no smell coming from the box and that he never smokes

“weed.”     After Detective Harris explained that Micael’s phones would be examined,

Micael stated he would “tell him whatever if he [Detective Harris] helps him [Micael] not

go to jail.” Micael proceeded to state that he had spoken to a “guy” when out in Los

Angeles about marijuana but never expected the other “guy” to send anything because

they never exchanged money.                Detective Harris testified that the lease to Micael’s

vehicle was located during the search and that the vehicle was registered to Micael.3

Detective Harris explained the marijuana was shipped from Sacramento, California,

where Micael stated his “guy” was from during their interview. Detective Harris had the

marijuana taken to the narcotics task force office where the box and packaging were

photographed and discarded. The marijuana was also photographed, weighed, and sent

to the Austin Police Department (APD) forensic crime lab for testing.

        Micael objected when the State tried to introduce State’s Exhibit 22 and 23, the

evidence box and the actual marijuana for the same reasons found in his motion to

suppress.       The trial court overruled Micael’s motion to suppress.                           On cross-

examination, Detective Harris stated that the original packaging had been photographed

and discarded.        He agreed that it was not ordinary to be pulled out of a vehicle,

handcuffed, and detained and it would be unauthorized without additional circumstances,

like the odor of marijuana.




        3 Detective Harris explained they like to find an “affirmative link” to the person they arrest for drug
possession and the location of the drugs; here, Micael’s vehicle.
                                                      5
       The State’s final witness, Katherine Surma, a forensic scientist with the APD

forensic crime lab, stated she weighed and performed the analysis on the marijuana sent

to the lab in this case. Surma explained she performed multiple tests analyzing a sample

of what was sent to the lab.      Based on her testing, Surma determined the sample

contained high levels of tetrahydrocannabinol (THC), the active ingredient in marijuana.

Surma determined the weight of the marijuana to be 5.0 pounds, with a plus or minus

uncertainty of .3.

       Micael testified and explained on February 18, 2016, he possessed the marijuana

at issue. Micael stated there was no odor of marijuana coming from the box in his vehicle

and he did not grant permission to Officer Beach to search his vehicle or the box. On

cross-examination, Micael admitted he was at the apartments to drop off the box when

he was stopped and that he had opened one of the manila envelopes and handled the

plastic package, but the packages contained multiple layers of vacuum-sealed plastic and

dryer sheets, so the odor was not present.

       The jury convicted Micael of possession of marijuana, and the trial court sentenced

him to two years’ imprisonment in State Jail Division of the Texas Department of Criminal

Justice.   See TEX. HEALTH & SAFETY CODE ANN. 481.121.             However, the trial court

probated Micael’s sentence for a period of five years. This appeal followed.

                           II.    SEARCH OF SEALED CONTAINER

       By his first issue, Micael argues that his federal and state constitutional rights were

violated when Officer Beach searched a sealed container seized from his vehicle.




                                              6
       A.     Standard of Review and Applicable Law

       As with any suppression issue, we accord almost total deference to the trial court’s

determination of the historical facts, especially if those determinations turn on witnesses’

credibility or demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008).

When, as in this case, the trial court has not made specific findings of fact, we must view

the evidence in the light most favorable to the trial court’s ruling. Id. We review de novo

the trial court’s application of law to facts not turning on credibility or demeanor. Id.

       The Fourth Amendment protects against unreasonable searches and seizures by

government officials. U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.

Crim. App. 2007). To suppress evidence because of an alleged Fourth Amendment

violation, the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.

Crim. App. 2007). A defendant satisfies this burden by establishing that a search or

seizure occurred without a warrant. Id. Once the defendant has made this showing,

the burden of proof shifts to the State, which is then required to establish that the search

or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672–73;

Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005).

       Whether a search is reasonable is a question of law that we review de novo.

Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).               Reasonableness is

measured by examining the totality of the circumstances.          Id. at 63.   It requires a

balancing of the public interest and the individual’s right to be free from arbitrary


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detentions and intrusions.     Id.   A search conducted without a warrant is per se

unreasonable unless it falls within one of the “specifically defined and well-established”

exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.

Crim. App. 2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort Worth 2003,

no pet.).

       One such exception holds that the police may lawfully search an automobile if they

have probable cause to believe that the vehicle contains evidence of a crime. Neal, 256

S.W.3d at 282 (citing Wiede, 214 S.W.3d at 24). Probable cause to search exists when

there is a “fair probability” of finding inculpatory evidence at the location being searched.

Wiede, 214 S.W.3d at 24 n.29 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

Probable cause also exists when officers have reasonably trustworthy information

sufficient to warrant a reasonable belief that an offense has been or is being committed.

McGee, 105 S.W.3d 609 at 614. In determining whether there was sufficient probable

cause, this Court must consider the sum of the information known to the officers at the

time of a search. Fineron v. State, 201 S.W.3d 361, 366–67 (Tex. App.—El Paso 2006,

no pet.).

       When this so-called “automobile exception” applies, the police may search “every

part of the vehicle and its contents that may conceal the object of the search.” United

States v. Ross, 456 U.S. 798, 825 (1982). This permission extends to any containers or

packages found inside the car, without qualification as to ownership.          California v.

Acevedo, 500 U.S. 565, 571 (1991); Wyoming v. Houghton, 526 U.S. 295, 299 (1999).




                                             8
        The scope of a warrantless search of an automobile is not defined by the nature

of the container in which the contraband is secreted.                   Acevedo, 500 U.S. at 579.

Rather, it is defined by the object of the search and the places in which there is probable

cause to believe that it may be found. Id. at 579–80. Under this exception, officers may

conduct a search of the vehicle that is as thorough as a magistrate could authorize in a

warrant particularly describing the place to be searched.                  Id. at 570. For example,

probable cause to believe that a container placed in the trunk of a taxi contains

contraband or evidence does not justify a search of the entire cab. Id. at 571. But it

does justify a search of the container. Id. at 574 (citing Ross, 456 U.S. at 821).

        In addition to the ready mobility of an automobile, the automobile exception is

justified because the expectation of privacy with respect to one’s automobile is

significantly less than that relating to one's home or office. Keehn v. State, 279 S.W.3d

330, 335 (Tex. Crim. App. 2009) (citing California v. Carney, 471 U.S. 386, 393 (1985));

see also State v. Ross, No. 02-09-109-CR, 2010 WL 87427, at *3–4 (Tex. App.—Fort

Worth 2010, pet. ref’d) (mem. op, not designated for publication).

        B.      Discussion

        The record of evidence presented at trial, which the trial court relied on to overrule

the motion to suppress, indicated the officers had reasonably trustworthy information that

led them to believe there was probable cause that Micael’s vehicle contained evidence of

the crime he was committing or about to commit.4 See McGee, 105 S.W.3d 609 at 614.


        4 Micael’s motion to suppress argued the evidence was seized “without a search warrant” and

should therefore be considered “fruits of an illegal search.” During numerous exchanges with the trial
court, Micael argued there was no probable cause to search the vehicle. However, in his brief to this Court,
Micael now contends “there was no reason Beach could not have obtained a warrant if he thought he had
                                                     9
        Detective Harris testified that he had received information in February 2016 that

Micael was distributing large amounts of drugs in the area. The narcotics task force was

able to identify the car Micael was known to drive and saw Micael commit traffic infractions

while driving the vehicle.

        As Officer Beach approached Micael’s vehicle after initiating a traffic stop, he

indicated he could smell “fresh” marijuana. Officer Beach explained that “fresh” and

“burnt” marijuana have different smells, and through his experience and training as an

officer, he could distinguish the two odors. Officer Beach also asked Micael why he was

shaking during his investigation of the vehicle; Micael stated it was because he had just

arrived from the gym.

        A search of Micael’s vehicle yielded a large amount of clothing and the box. It

could be inferred that the box would be the container within the vehicle to store the

marijuana. See Acevedo, 500 U.S. at 579–80. Additionally, Officer Beach articulated

why the box raised suspicions: it was a large box; the only other items in the vehicle

were clothes; Micael’s name was misspelled on the box; it appeared to have been opened

and retaped; Micael appeared nervous during the interaction with Officer Beach; and

Micael began pacing when Officer Beach began to open the box. Based on the initial

odor of marijuana and the additional facts developed as the investigation progressed, we

conclude that there was probable cause to open the box. See Parker v. State, 206

S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006) (describing different scenarios involving



probable cause to search the sealed container.” We find no place in the trial record where the issue of
obtaining a warrant was raised, and therefore, find that Micael has waived this particular issue related to
his motion to suppress. See TEX. R. APP. P. 33.1(a).
                                                    10
probable cause). The trial court did not err in overruling Micael’s motion to suppress.

We overrule Micael’s first issue.

                                     III.    JURY CHARGE

         By his second issue, Micael alleges he was egregiously harmed by the lack of a

jury instruction explaining extraneous offenses.

         A.      Standard of Review

         All alleged jury-charge error must be considered on appellate review regardless of

preservation in the trial court.    Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.

2012). Appellate review of purported error in a jury charge involves a two-step process.

Id.   First, we determine whether the jury instruction is erroneous.      Id.    Second, if error

occurred, then an appellate court must analyze that error for harm.             Id. The issue of

error preservation is not relevant until harm is assessed because the degree of harm

required for reversal depends on whether the error was preserved.          Id.

         If the “defendant never presents a proposed jury instruction (or fails to object to the

lack of one), any potential error in the charge is reviewed only for ‘egregious harm’ under

Almanza.”       Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)).              As in

this case, when an “appellant d[oes] not object to the charge, the error does not result in

reversal ‘unless it was so egregious and created such harm that appellant was denied a

fair trial.’”   Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (quoting

Almanza, 686 S.W.2d at 171). “Errors that result in egregious harm are those that affect

the ‘very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a


                                               11
defensive theory.’”    Id. at 461–62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996)).

       B.     Applicable Law and Discussion

       Michael complains that the trial court committed error when the jury was not given

an extraneous offense instruction in the jury charge.    Since there was no objection by

Micael to the jury charge, he must show egregious harm if we determine error occurred.

       There was testimony presented both by the State and Micael that alluded to prior

dealings with drugs.   Detective Harris stated the narcotics task force had information that

Micael was distributing drugs in the area.   Micael did not object. When the conversation

between Detective Harris and Micael was played for the jury, Micael explained he had

spoken to a “guy” in California about sending marijuana but that he never expected to

receive anything because there had been no monetary exchange.              During Micael’s

testimony, he admitted to possessing the marijuana and lying to the police.          Micael

additionally stated that he had received packages of marijuana from California before,

was at the apartments where he was stopped to drop off the box of marijuana, and knew

how the marijuana was packaged.

       At no point during the testimony did Micael request a limiting instruction regarding

any extraneous offense or bad act.       Therefore, “because [Micael] did not request a

limiting instruction at the first opportunity, the evidence was admitted for all purposes.”

Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). “Jury instructions, if

requested, should be given when the evidence is admitted and then again at the final jury

charge.” Id. The Texas Court of Criminal Appeals has noted that “it is impossible for


                                             12
[the jury] to go back at the close of trial and reassess the evidence in light of the limiting

instruction, even if they could appreciate which items of evidence the instruction was

supposed to apply to.”     Id. (quoting Rankin v. State, 974 S.W.3d 707, 712 (Tex. Crim.

App. 1996)).   Because the evidence in question was admitted for all purposes, a limiting

instruction on the evidence was not “within the law applicable to the case,” and the trial

court was not required to include a limiting instruction in the charge of the jury.        Id.

(quoting TEX. CODE CRIM. PROC. ANN. art. 36.16 (West, Westlaw through 2017 1st C.S.)).

       Here, even though not required, the trial court, during the charging conference,

clarified with Micael that he was not requesting an instruction regarding prior bad acts.

Micael agreed that he was not requesting the instruction in the jury charge.      Therefore,

because Micael previously did not request a limiting instruction, we find the trial court did

not commit error by not including an extraneous offense instruction in the jury charge.

We overrule Micael’s second issue.

                                    IV.     CONCLUSION

       We affirm the judgment of the trial court.



                                                                 GINA M. BENAVIDES,
                                                                 Justice

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

Delivered and filed the
29th day of August, 2018.




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