Janjua v. State

• Decision Date: 22 April 1999
• Docket Number: No. 14-97-00014-CR,14-97-00014-CR
• Citation: 991 S.W.2d 419
• Parties: Atif JANJUA, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 419

991 S.W.2d 419

Atif JANJUA, Appellant, v. The STATE of Texas, Appellee.

No. 14-97-00014-CR.

Court of Appeals of Texas Houston (14th Dist.).

April 22, 1999.

Alex G. Azzo, Houston, for appellant.

Joni M. Vollman, Houston, for appellee.

Panel consists of Chief Justice MURPHY and Justices HUDSON and DRAUGHN. ^*

OPINION

J. HARVEY HUDSON, Justice.

Appellant, Atif Janjua, was convicted of promoting child pornography upon his plea of guilty. See TEX. PENAL CODE § 43.26. ¹ After appellant's conviction, the State moved to forfeit and destroy certain criminal instruments and obscene devices that had been seized from appellant, namely, a Packard Bell central processing unit, a Gold Star color monitor, a Packard Bell keyboard, two video cassette tapes, twenty 3 1/2 inch diskettes, and two 5 1/4 inch diskettes. In four points of error, appellant challenges the sufficiency of the evidence to support the court's order. We affirm.

The Code of Criminal Procedure provides authority to forfeit certain items used in the commission of an offense involving a criminal instrument. See TEX.CODE CRIM. PROC. ANN. art. 18.18(a) (Vernon Supp.1999). In his first point of error, appellant contends the trial court erred in granting the State's motion because there is no evidence he was convicted of an offense involving a criminal instrument. The forfeiture, however, was not predicated solely upon the theory that the items seized from appellant are criminal instruments. Article 18.18(a) of the Code of Criminal Procedure states, in pertinent part:

Following the final conviction of a person ... for an offense involving a criminal instrument ... [or] an offense involving an obscene device or material, the court entering the judgment of conviction shall order that the ... instrument, obscene device or material be destroyed or forfeited to the state.

TEX.CODE CRIM. PROC. ANN. art. 18.18(a)(Vernon Supp.1999) (emphasis added). Moreover, the State's motion for forfeiture is styled "In the Matter of the Seizure of Certain Criminal Instruments and Obscene Devices and Materials "; the introductory paragraph requests the forfeiture of certain "criminal instruments and obscene devices and materials "; and it ultimately concludes with a prayer for forfeiture of "criminal instruments and obscene devices." (emphasis added). Accordingly, we find the State's motion was predicated upon the theory that appellant's conviction for promotion of child pornography was an offense which involved (1) a criminal instrument, (2) an obscene device or (3) obscene material. ² Thus, if there is sufficient evidence to support any of the theories alleged in the motion we must affirm the trial court's order. ³

Criminal Instrument

For purposes of Article 18.18, the term "criminal instrument" has the same meaning defined in the Penal Code. See TEX.CODE CRIM. PROC. ANN. art. 18.18(g)(1) (Vernon Supp.1999). Within the Penal Code, however, the term "criminal instrument" is used only in connection with Section 16.01, a preparatory offense derived from an earlier statute that made it unlawful to be in possession of burglary tools. As codified in the 1925 Penal Code, Article 1402b prohibited any felon from having in his possession ...

any engine, machine, jimmy, tool, false key, pick-lock, bit, nippers, steel wedges, drill, tappins, or other implements or things adapted, designed or commonly used for the commission of burglary or safecracking, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of burglary or safecracking, or knowing that the same are intended to be so used.

Although the statute speaks in terms of instruments that are "designed" or "adapted" for use in committing a burglary, the list of implements expressly includes drills, bits, wedges, nippers, ⁴ and other ordinary tools. Possession of these instruments was an offense, however, only if the defendant's possession was under circumstances evincing an intent to use or employ the tools in the commission of a burglary. Thus, the gravamen of the offense was not the possession of these devices, but their intended use.

The offense was preparatory in nature and differed only slightly from attempted burglary. In an attempted burglary, the actor's intent was established by evidence that he had made some attempt beyond mere preparation to commit the crime, but had failed. ⁵ Under Article 1402b, the actor's intent was established by (1) possession of tools commonly used to commit burglary (2) under circumstances indicating that he was about to use them for that purpose.

In 1973, the Legislature adopted a new penal code, and possession of burglary tools became "unlawful use of a criminal instrument." ⁶ Like its predecessor, the new statute was anticipatory in nature and was aimed at criminalizing conduct occurring immediately prior to the commission of a more serious offense. It was appropriately placed under Title 4 of the new code, entitled "Inchoate Offenses." No longer limited to burglary and safecracking, the new statute provided that a person could commit an offense if he possessed a criminal instrument with intent to use it in the commission of any offense. See TEX. PEN.CODE ANN. § 16.01 (Vernon 1994). Where Article 1402b had listed a variety of ordinary tools "adapted, designed or commonly used for the commission of burglary or safecracking," the new statute defined "criminal instrument" as "anything that is specially designed, made, or adapted for the commission of an offense." ⁷ Thus, it appears to have been the legislative intent to expand the scope of the former statute.

However, the first court to examine the new statute construed it so narrowly as to extinguish its practical application. In Universal Amusement Co. v. Vance, 404 F.Supp. 33 (S.D.Tex.1975), vacated, 425 U.S. 262, 96 S.Ct. 1527, 47 L.Ed.2d 774 (1976), an undercover vice-officer purchased a ticket to an adult theater. After viewing a sexually explicit film, the officer concluded it was obscene. At that time, the penalty for commercial obscenity was a Class B misdemeanor. ⁸ Seeking a more potent offense, the police seized the film projector as a "criminal instrument" and charged the operator with unlawful use of a criminal instrument which was then a third degree felony. ⁹ To prevent a misuse of the statute, the court reduced its scope by holding:

The words of subpart (b) of the statute clearly indicate that a criminal instrument is not equipment which is designed, made, or adapted for a lawful use, but which incidentally may be used for the commission of a crime. There are many, many common, ordinary, everyday objects which can be used to commit crimes, but these are not criminal instruments.

Universal Amusement, 404 F.Supp. at 38-39.

The following year, the Court of Criminal Appeals cited Universal Amusement with approval and concluded the "statute was designed to deal with a very small class of property which can be used only for the commission of crime." Fronatt v. State, 543 S.W.2d 140, 142 (Tex.Crim.App.1976) (quoting Universal Amusement, 404 F.Supp. at 49) (Emphasis added). However, it is difficult to imagine an instrument that has no conceivable purpose apart from the commission of crime. Even the criminal instrument found in Fronatt, i.e., a lock pick, is a legitimate tool in the hands of a locksmith. Thus, for the most part, the only objects that have no lawful use are those whose mere possession constitutes a criminal offense such as silencers, "crack" pipes, and child pornography. See TEX. PEN.CODE ANN. § 46.05 (Vernon 1994); TEX. HEALTH & SAFETY CODE ANN. § 481.125 (Vernon Supp.1999); TEX. PEN.CODE ANN. § 43.26 (Vernon Supp.1999). But in 1975, the Legislature amended Section 16.01 and redefined the definition of "criminal instrument" to mean "anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense." See Act of June 2 1975, 64 th Leg., R.S., ch.342, § 7, 1975 Tex. Gen. Laws 912, 913.

By eliminating contraband from the scope of items that may be classified as criminal instruments, the Legislature significantly clarified its intention. It is almost impossible to conceive of an object which may be lawfully possessed, but has no legitimate use. Presuming the Legislature did not intend a useless act, we find the term "criminal instrument," as defined in Section 16.01, is not restricted to objects that can be used only for criminal purposes. Although Fronatt contains contrary language, that decision is not controlling because the Court of Criminal Appeals was interpreting the pre-amendment definition of the term. ¹⁰ Moreover, the Court of Criminal Appeals has had no further occasion to construe the term since the 1975 amendment.

Assuming the term "criminal instrument" is not restricted to objects that can be used only for criminal purposes, the issue we must now decide is to what extent must the instrument be "specially designed, made, or adapted for use in the commission of an offense." TEX. PEN.CODE ANN. § 16.01 (Vernon 1994). The Austin Court of Appeals focused on the word "specially" and concluded that while the commission of an offense need not be the object's only use, it must be its primary purpose. See Eodice v. State, 742 S.W.2d 844, 846 (Tex.App.-Austin 1987, no pet.). In that case, a police officer spotted a person standing in the doorway of a pawn shop at 2:00 a.m. The pawn shop was not then open for business, and as the officer approached, he noticed the suspect was carrying a pair of heavy black leather gloves. The man told the officer that he had been looking in the pawn shop out of curiosity and that he used the gloves for driving. When the officer looked inside the suspect's car, he saw an assortment of tools, including a feeler gauge, a circuit tester, and a bent cotter pin. The officer then frisked the suspect and...