Malik v. State

• Decision Date: 10 September 1997
• Docket Number: No. 472-96,472-96
• Citation: 953 S.W.2d 234
• Parties: Urfan S. MALIK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 234

953 S.W.2d 234

Urfan S. MALIK, Appellant, v. The STATE of Texas, Appellee.

No. 472-96.

Court of Criminal Appeals of Texas En Banc.

Sept. 10, 1997.

Jules L. Laird, Jr., Houston, for appellant.

Rikke Burke Graber, Carol M. Cameron, Asst. Dist. Attys., Houston, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

A jury found appellant guilty of unlawfully carrying a weapon, namely, a handgun. The trial court assessed punishment at 90 days confinement in the Harris County Jail, probated for one year, and a $300 fine. The Fourteenth Court of Appeals reversed appellant's conviction with an order to the trial court to enter a judgment of acquittal. Malik v. State, No. C14-92-01293-CR, 1994 WL 622002, (Tex.App.--Houston [14th Dist], delivered November 10, 1994)(unpublished). The Court of Appeals reasoned that the evidence was insufficient to support appellant's conviction because the evidence was insufficient to show reasonable suspicion to justify a traffic stop of appellant. Id. The State petitioned for discretionary review, and we vacated the Court of Appeals opinion. Malik v. State, No. 1369-94 (Tex.Crim.App., delivered March 29, 1995)(unpublished). We held that the legality of the detention, an admissibility of evidence issue, was irrelevant to a sufficiency review, and we remanded the case to the Court of Appeals to conduct a "correct" sufficiency review. Id. On remand, the Court of Appeals held that the legality of the detention was a proper part of the sufficiency review because a jury instruction concerning the issue was submitted. Malik v. State, No. C14-92-01293-CR, 1996 WL 65639 (Tex.App.--Houston [14th Dist], delivered February 15, 1996)(unpublished).

The State has again petitioned for discretionary review (which we granted), and it contends that: (1) including the detention issue in a sufficiency review is not appropriate because Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) applies only to the elements of the criminal offense, and (2) even if there were error, it is merely trial error because the instruction was erroneous and the State objected to including the detention issue in the jury charge. Appellant responds that sufficiency of the evidence is measured by the jury charge, citing Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984), and he argues that the State failed to properly object to the erroneous jury instruction. We will reverse.

The present issue arises out of a line of cases beginning with Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982)(opinion on State's second motion for r'hrg), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372(1984). In Benson, we held that the sufficiency of the evidence is measured by the indictment as incorporated into the jury charge. Id. at 715. We decided that the State's failure to object to an unnecessary narrowing, in the jury charge, of the description of an element of the offense meant that the State was bound to prove the element as described, and a failure to do so would result in an acquittal due to insufficient evidence. Id. 715-716. Subsequently, in Boozer, we held that, by failing to object to an erroneously submitted accomplice witness instruction, the State acquiesced in an increase in its burden of proof, requiring corroboration of testimony that would not have needed corroboration absent the instruction. ¹ 717 S.W.2d at 610-612. These cases have spawned a line of decisions in which the sufficiency of the evidence is measured by the jury charge if that charge is more favorable to the defendant than the law requires and if the State fails to object.

Generally, this sufficiency standard has been limited to situations in which the increased burden upon the State appears in the application paragraph of the charge. Plata v. State, 926 S.W.2d 300, 304 (Tex.Crim.App.1996). But, we have also utilized that standard when an abstract portion of the charge functions as a kind of application paragraph. Arceneaux v. State, 803 S.W.2d 267, 271 (Tex.Crim.App.1990) In Arceneaux, the jury charge contained an instruction requiring the jury to find "beyond a reasonable doubt that the exhibit introduced in evidence by the State is cocaine" before the defendant could be convicted. Id. We held that, by failing to object to the cocaine instruction, the State assumed the (unnecessary) burden to offer a cocaine exhibit into evidence. Id. Because no cocaine exhibit had been introduced into evidence (the cocaine had been destroyed through testing), we found the evidence to be insufficient to support the conviction and ordered a judgment of acquittal. Id. at 271-272.

As in Arceneaux, the present charge involves the use of an application-type charge in connection with the admission of certain evidence. The relevant portion of the instruction reads as follows:

If you fail to believe beyond a reasonable doubt that the defendant, URFAN S. MALIK, was driving his vehicle in a suspicious manner as if some activity out of the ordinary had occurred or that activity related to a crime had occurred, then you are not to consider the pistol or holster that was found in the defendant's car following the stop by the deputy, and thereby find the defendant, URFAN S. MALIK, not guilty.

(Emphasis added). The present situation is in all relevant respects identical to Arceneaux. Although Arceneaux involved evidence that was not admitted and the present case involved evidence that arguably should not have been admitted, we do not find that to be a significant distinction. Nor do we perceive a material distinction between the Arceneaux instruction requiring the admission of evidence before the jury can be permitted to find guilt and the present instruction which requires the jury to acquit if the evidence is illegally obtained. In either case, the defendant's guilt turns, according to instruction, upon the status of a particular piece of evidence. As we stated in Arceneaux, "the wording ... of the charge may also authorize the trier of fact to reach or not reach the ultimate issue in the case." Id. at 271. (Ellipsis and emphasis added).

Arceneaux would appear to require an acquittal due to insufficient evidence as the Court of Appeals has done unless we find that the instruction was erroneous and that the State properly objected. But the State's contention that Jackson, by its wording, applies only to elements of the offense is a cogent one. When, as in the present case, our precedents appear to require us to stray far afield from the holding that originated a constitutional doctrine, we should reexamine those precedents to determine their continuing validity. In conducting such a reexamination, however, we should take into account the interests underlying the rule of stare decisis: Often, it is better to be consistent than right. But, when a particular court-made rule does not produce consistency and/or the rule regularly produces results unanticipated by the constitutional doctrine on which it is based, then we should be prepared to disavow the rule and overrule the line of cases embodying the rule. With these considerations in mind, we now reexamine the court-made rule established in the Benson/Boozer line of cases.

For its holding, Benson relied upon federal constitutional precedent. ² We at least implied that our view about measuring sufficiency by the jury charge was inherent in the Jackson standard. Benson, 661 S.W.2d at 714-715. We later expressly held that the Benson/Boozer rule was based upon Jackson:

The Jackson standard is the foundation for all this Court's later machinations concerning exactly what "standard" should be used to define error in a jury charge. The first such example was Benson, supra, in which the defendant attacked the sufficiency of the evidence to sustain his conviction for retaliation.

Arceneaux, 803 S.W.2d at 269-270. In Benson, we also relied upon Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960) and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) for the proposition "that legal insufficiency means that the government's case was so lacking that it should not have ever been submitted to the jury." Benson, 661 S.W.2d at 715-716 (internal quotation marks omitted; emphasis in Benson ). We further explained that "insufficiency means that the State's case could be cured or satisfied only by the introduction of new evidence to prove, if possible, their theory of the case." Id. at 716 (emphasis added).

A review of the relevant precedents shows that the federal constitutional cases relied upon in Benson and other cases as the foundation for the Benson/Boozer rule do not in fact support that rule. Under Jackson, the sufficiency review question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis on "any" in original; other emphasis added). If an element to be proved is incorporated into the charge merely because the State failed to object, and hence, unnecessarily increased its burden of proof, then that element cannot be an "essential" element of the crime. The only answer to this observation would be to claim that whether an element is "essential" depends upon the wording of the particular jury charge. But Jackson held that its standard is not concerned with the rationality of the verdict actually rendered. Id. at 319 n. 13, 99 S.Ct. at 2789 n. 13. See also Benson, 661 S.W.2d at 717-718 (McCormick, J. dissenting). Moreover, Benson 's reliance upon Forman and Burks for the proposition that insufficient evidence means the case should never have been submitted to the jury underscores the inappropriateness of using the jury charge as a measurement of sufficiency. If the case...