
NO. 07-04-0236-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 24, 2004

______________________________


RUBEN RUIZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

NO. 3334; HONORABLE RON ENNS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ON ABATEMENT AND REMAND
	Appellant, Ruben Ruiz, has given Notice of Appeal from a judgment of conviction
and sentence in the 69th District Court of Moore County.  A copy of the Notice of Appeal
was filed with this Court on April 16, 2004.  The clerk's record was filed on May 14, 2004
and a reporter's record has not been received.  The court reporter indicates that appellant
has not paid or made arrangements to pay for the record.  On June 7, 2004, appellant's
counsel filed a Motion to Withdraw as counsel indicating that he has not been employed
by appellant to represent him on appeal.  
	Accordingly, this appeal is abated and the cause remanded to the trial court.  Tex.
R. App. P. 43.6.  Upon remand, the judge of the trial court is directed to cause notice to be
given of and to conduct a hearing to determine: (1) whether appellant's present counsel
should be allowed to withdraw from representation of appellant; (2) if appellant is indigent;
and (3) if it is determined that appellant is indigent, whether new counsel should be
appointed to represent appellant.  If new counsel is appointed to represent appellant, then
the trial court is directed to cause the name, address, and State Bar of Texas identification
number of the new attorney to be furnished to the clerk of this court.  
	The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations, and cause them to
be included in a supplemental clerk's record; (3) cause the hearing proceedings to be
transcribed and included in a reporter's record of the hearing; and (4) have a record of the
proceedings made to the extent any of the proceedings are not included in the
supplemental clerk's record or the reporter's record of the hearing.  In the absence of a
request for extension of time from the trial court, the supplemental clerk's record, reporter's
record of the hearing, and any additional proceeding records, including any orders,
findings, conclusions and recommendations, are to be sent so as to be received by the
clerk of this court not later than July 24, 2004.   
						Per Curiam
Do not publish.  

ont-size: 10pt"> Motion to Suppress and Charge Error

 Appellant argues in his first issue that the trial court erred in failing to suppress
evidence obtained as a result of the search of the envelope and the vehicle and the
questioning of him by police.  We overrule the issue.
 Search of the Envelope
	We review the trial court's ruling on a motion to suppress under the standard
announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v.
State, 955 S.W.2d 85 (Tex. Crim. App. 1997).  In doing so, we give almost total deference
to the trial court's findings of historical fact and review de novo the application of the law
to the facts.  Johnson v. State, 68 S.W.3d at 652-53.  	
	The air bill used by Federal Express provides that the company retains the right "to
open and inspect . . . packages . . . ."  The company also retains the right to reject a
shipment when, among other things, the shipment is prohibited by law.  When persons
choose to use Federal Express, they are on notice of those rights.  United States v. Young,
350 F.3d 1302, 1307-1309 (11th Cir. 2003).  When a private overnight shipper such as
Federal Express inspects a package to assure it is not being used as a means to deliver
contraband, the search is a private one and does not offend Fourth Amendment rights. 
United States v. Jacobsen, 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 States v. Barry, 673 F.2d 912, 914-15
(6th Cir. 1982). 
	However, appellant argues that the act of the Federal Express employees in opening
a package addressed to him violates §1702 of Title 18 of the United States Code.  That
section provides: 
		Whoever takes any letter, 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 depository, or in
the custody of any letter or mail carrier, before it has been delivered to the
person to whom it was directed, with design to obstruct the correspondence,
or to pry into the business or secrets of another, or opens, secretes,
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 question whether Federal Express was
an "authorized depository for mail matter" although they also testified that Federal Express
was not associated with the United States Postal Service. 
	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 depository" of the mail is
one that is a part of the United States Postal Service's nationwide system for the delivery
and receipt of mail.  United States Postal Service v. Council of Greenburgh Civic
Associations, 453 U.S. 114, 128, 101 S.Ct. 2676, 2684, 69 L.Ed.2d 517 (1981).  It has also
been decided that a letter within the contemplation of the statute is one that is sent and
received through the Post Office Department.  United States v. Maxwell, 137 F. Supp. 298,
303 (W.D. Missouri 1955), aff'd, 235 F.2d 930 (8th Cir. 1956).   We have further found
authority holding that §1702 is applicable to mail within the control and responsibility of the
United States Postal Service.  United States v. Ashford, 530 F.2d 792, 795 (8th Cir. 1976)
(holding that the statute applies to mail that is the responsibility of the United States Postal
Service); United States v. Bradford, 493 F.2d 1282, 1284 (7th Cir. 1974) (stating that §1702
applies to anything transferred by the postal service); Giraud v. United States, 348 F.2d
820, 822 (9th Cir. 1965) (holding that it is incumbent to establish as one of the elements of
the offense that the check taken had been in the United 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 no
authority and we have found none holding that the statute applies to private freight and mail
carriers such as Federal Express.   Based on these authorities, the search 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 basis to find the detention and questioning of appellant and
the search of his vehicle illegal. 
 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 officers failed to comply with article 38.22 §3(a)
of the Code of Criminal Procedure which requires an oral recording.  However, the statute
applies only to custodial interrogations.  Tex. Code Crim. Proc. Ann. art. 38.22 §3(a)
(Vernon 2005).  Appellant contends he was in custody because a reasonable person would
have believed he was not free to leave due to the fact he was the only person on whom the
attention of the police was focused, the number of police officers present (two), the nature
of the questioning, and the fact he was told he was being detained for questioning.  Further,
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 request to search his vehicle
violated his constitutional and statutory rights.    	  
	A police officer may temporarily detain a person if he has reasonable suspicion that
criminal activity is afoot and the person is involved in it.  See Garcia v. State, 43 S.W.3d
527, 530 (Tex. Crim. App. 2001) (defining reasonable suspicion as specific articulable facts
when combined with rational inferences from those facts which would lead an officer to
reasonably suspect that a particular person has engaged or is or soon will be engaging in
criminal activity).  The officers knew that appellant had been mailed an overnight letter
containing what was believed to be heroin and that appellant had claimed what he believed
to be that package when it was undeliverable.  In the absence of other evidence,
possession of an unopened package received by mail or common carrier and containing
drugs does not warrant an inference beyond a reasonable doubt that the accused
knowingly possessed drugs.  Barber v. State, 757 S.W.2d 83, 86 (Tex. App.-Houston [14th
Dist.]1988, pet. ref'd). However, evidence demonstrating knowledge of the contents can
be shown by claiming a box addressed to the accused and known by law enforcement
agents to contain drugs.  Barber v. State, 757 S.W.2d at 86.  At the very least, the officers
had reasonable suspicion on the facts known to them to detain appellant for questioning.
	Furthermore, even assuming the officers did not have probable cause to search the
vehicle after appellant confessed to being a heroin user and displayed traits of one, under
both federal and state law, an officer may seek voluntary consent to search.  State v.
Perez, 85  S.W.3d 817, 819 (Tex. Crim. App. 2002); James v. State, 102 S.W.2d 162, 173
(Tex. App.-Fort Worth 2003, pet. ref'd).  He need not have reasonable suspicion or
probable cause to do so as long as the officer does not indicate that compliance is required. 
Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997); Middleton v. State, 9 S.W.3d
428, 431 (Tex. App.-Houston [14th Dist.] 1999, no pet.).    
  	Reyna testified that he identified himself to appellant, asked for appellant's
identification, read him his Miranda warnings, and told him he was not under arrest but was
just being detained for questioning.  The basis for that questioning, according to Reyna,
was the fact that he believed the overnight letter appellant was to receive contained heroin. 
While Reyna was questioning appellant as to the identity of the person who had sent the
letter and whether appellant knew what was in the letter, he noticed that appellant was
nervous, shaking, and claimed to be cold even though the officer knew the temperature
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.  Appellant responded "yes" to the
first question and did not respond to the second.  During this time, appellant 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.  After
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 investigation. 
	Because there is no evidence that the evidence was illegally seized in violation of
a statute, see Tex. Code Crim. Proc. Ann. art. 38.23 (a) (Vernon 2005) (stating that in any
case where the legal evidence raises an issue whether the evidence was obtained in
violation of the laws of the state or the United States, the jury shall be instructed that if it
has reasonable doubt that the evidence was obtained in violation thereof, the jury shall
disregard any evidence so obtained), the trial court did not err in failing to charge the jury
on the same.
Issue 3 - Charge on Extraneous Offenses

 Next, appellant contends that the trial court erred in failing to charge the jury that
extraneous offenses may be considered 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 possessed controlled substances.  Also, there
was evidence that appellant associated with a prostitute.  Appellant objected to the trial
court's jury charge because it did not contain an instruction with respect to extraneous
offenses.  However, a request for a limiting instruction with respect to extraneous offenses
must be made at the time the evidence is admitted or else the evidence is admitted for all
purposes.  Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); Reyes v. State,
69 S.W.3d 725, 741 (Tex. App.-Corpus Christi 2002, pet. ref'd).  Because appellant failed
to request a limiting instruction at the earliest opportunity, the trial court did not err in
excluding the instruction from its jury charge.  Hammock v. State, 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 abused
discretion.  Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000).  A continuance
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 unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant is so taken by
surprise that a fair trial cannot be had."  Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon
1989). 
	  Before the commencement of trial, appellant informed the court that he had learned
the name of a witness, 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 placed
the methadone 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 appellant had made adequate
attempts to locate the witness and compel her attendance and that further attempts would
be unsuccessful.  Therefore, the motion was denied.
	Appellant was aware prior to the commencement of trial that the witness was
unwilling to appear at trial and that she would attempt to avoid service of process.  The
motion for continuance makes no showing of any unexpected occurrence which no
reasonable diligence could have anticipated.  See Martinez v. State, 867 S.W.2d 30, 40
(Tex. Crim. App. 1993) (holding that the defendant was aware of the potential that the State
would call an expert witness during the punishment phase which he might need to rebut
so there was no unexpected occurrence).  Furthermore, appellant (through his attorney)
informed the court that he suspected she would invoke her Fifth Amendment privilege
against self-incrimination even if service was obtained on her.  This coupled with  the prior
representation that the witness may avoid service of the subpoena is also some indication
that she may not have been available to testify.  Rodriguez v. State, 21 S.W.3d 562, 565-66
(Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (stating that a continuance may be denied
when the evidence fails to indicate a probability that the witness can be secured by a
postponement).  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.

 
							Per Curiam

Publish.
1. The letter was addressed to appellant at a truck stop and was therefore undeliverable.  
2. There was no affidavit or testimony to this effect.
