Sedani v. State

com- a wrecker and Officer Treat called BASS, JONES, Before SAM COHEN inventory cabin. search of the pleted an JJ. bag driv- a white bank under the He found six loaded with er’s seat with a .38 revolver OPINION rounds, checks, pa- assorted live some BASS, Justice. SAM pers. Manharlal B. Sedani of juryA convicted third first Sedani’s We address punish- carrying handgun, then assessed sufficiency of the evi- attacking the error days, probated, and fine of “where the ment of 180 his conviction support dence error, a rational Sedani as- points In three evidence was insufficient $500. [sic] concluded that Officer overruling his fact to have court erred in trier of serts the trial beyond a reasonable you If do not so find probable Treat has cause to believe doubt, you have a reasonable doubt or in court as re- appellant would matters, you disregard will as to such argues that Treat quired.” Sedani Officer derived from said seizure such evidence him probable needed cause to re-arrest af- any it as evidence what- and not consider the evi- up ter he tore his citation. Since your verdict not say soever and support finding proba- dence does not guilty. cause, argues, illegal, ble he the arrest was jury ignored gun and the should have Thus, admits the evidence must Sedani acquitted him. The State counters and Viewing support a “reasonable belief.” charge required only a belief “reasonable light in a most favorable to the evidence in appellant appear would not court” that verdict, a rational factfinder could have support to and the evidence sufficient tearing up concluded that Sedani’s act charge. gave Treat reasonable the notice Officer in appear that would not belief Sedani reviewing sufficiency of the When required charge That is all the court. reviewing must appeal, court evidence prove subject. to on that See Boozer State light most favor view the evidence (Tex.Crim. 717 S.W.2d determine prosecution able to the and App.1984) (sufficiency of the evidence trier of fact could rational whether charge given). that was measured the essential elements of the have found Therefore, the was sufficient to evidence doubt. beyond crime a reasonable Jackson support conviction. Sedani’s 307, 319, 99 S.Ct. Virginia, three is overruled. Point of error (1979). The 61 L.Ed.2d 560 must be consid sufficiency two, of the evidence points In one and of error Sedani charge given. Nickerson v. ered from overruling asserts the trial court erred (Tex.Crim.App. suppress to the evidence of his his motion 1990). not conform to required support If the evidence does handgun, which was to given, handgun. it is insufficient as a In carrying the instructions conviction of his one, revers- point matter of law. Id. of error Sedani asserts peace must error officer ible because “[a] Treat needed Sedani contends Officer a motorist arrested for a traffic release appellant to probable cause believe promise he a written offense after secures He cites the appear not would two, In of error appear in court.” mea- following portion charge of the as the did not have he asserts Officer Treat sufficiency suring stick for of the evidence: appellant would “probable cause to believe Therefore, you if believe that HPD Offi- not chal- appear in court.” Sedani does not suspicion cer R.G. Treat had a reasonable initial arrest for lenge legality of the activity to connect the Defendant traffic violations. or that the Defendant related crime argues that he was summary, In Sedani you and if had commited an offense [sic] Treat did illegally arrested because Officer Treat had that HPD Officer R.G. believe authority arrest him after have the not alleged con- a reasonable belief that signed citations. Since Officer Defendant, tearing any, duct of the him, authority to arrest have Treat did not citation, all, if at issued up the traffic authority to have the Treat did not Officer Treat, all, if at and the HPD Officer R.G. car, his inventory conduct an search did, you I’ll see stating, if he Defendant the inven- incident to the arrest. Without conduct, Court, all, if at and that said search, not have tory Officer Treat would Treat to warranted Officer R.G. believe would not handgun, found the and Sedani that the Defendant would handgun. carrying convicted of have been for which court for the traffic citations all, had stopped, if at Treat had been The State counters Officer Defendant statutory authority to arrest Sedani you shall consider the evidence ob- then under Tex.Rev.Civ.Stat. as a result of the traffic violations by the officer tained 6701d, 148(a) (Vernon Supp. Ann. art. the Defendant. stop and seizure of § citation; (Vernon 1977), that the defendant tore the cita- 1993) and that until & § Sedani, had the tion in half and stated that the officer Officer Treat he released issuing regret cita- his conduct. Thereafter to arrest him instead option he had Treat testified that Officer Treat arrested defendant Officer tions. custody custody. into placed from because the defendant not released Sedani him time Treat inventoried the yet reviewed with Thereafter Officer he had not Whereupon a appearance accord- interior of the automobile. place for his policy. zipped bag ar- of a ing departmental seizure was made bank amongst things a legal because which contained other the arrest was gues promise appear by pistol weapon, .38 caliber which was load- negated Sedani citations and ed that I tearing up copies papers his of the and checks. And charged believe the then had reason to find that Officer Treat then Officer Treat in court. the additional appear would not defendant Sedani with Sedani charge, committed offense of in- does not contend Sedani the misdemeanor copies of tentionally knowingly carrying the another violation after [on] person gun. delivered. Evers v. citations were See or about his a hand State, (Tex.Crim.App. 576 S.W.2d [Panel of law is that I The Court’s conclusions 1978) (after Op.] giv- a traffic citation was had the defendant Sedani not find that en, posi- parked from a “improper an start ripped up his action and conduct own gravel throwing po- tion" mud and on the citation, subsequent any the traffic that lice and his car was a traffic viola- officer assuming search based on that fact that justifying tion a second arrest and subse- fact, have no then Officer Treat would search). quent inventory probable cause to invade the interior pursu- traffic the vehicle under the laws trier of The trial court is the sole to 147 of Article 6701d. ant Section suppress, to hearing fact at a on a motion actions, However, by the defendant’s such, may and as choose to or believe his Treat’s reli- own conduct and Officer any or disbelieve all of the witnesses’ testi conduct, ance on that that the defendant mony. Taylor v. 604 S.W.2d court; promise appear to negated his 1980). (Tex.Crim.App. Op.] [Panel to then had reason be- that the gives wrong Even if the officer trial court ap- lieve that the ruling defendant sup reason for its on a motion to pear And based the offi- in court. evidence, press this uphold Court will to that the defendant cer’s reason believe ruling any theory if it is correct on of law appear on the defen- would not based applicable Calloway to the case. dant’s thereafter accordance conduct (Tex.Crim.App. regula- the traffic 147-5 of with Section 1988). 6701d, that then had tions of Article of the hearing At end on the motion Sedani, right place Mr. the defen- to suppress, to the trial that court found Se- dant, the in- custody and thereafter into negated promise appear dani to tear- indeed autho- ventory of the vehicle was ing up his citation: of Tex- of the state rized under laws I that Officer Treat a traffic find wrote as in the United States. citation to the defendant Manharlal B. 147(5) added.) provides (Emphasis Section January Sedani on or about 1991 for traffic misde- person arrested for a that a rules and two violations the traffic immediately taken meanor shall be I find regulations of the State of Texas. magistrate, “In event when the other Officer Treat told the defendant that give to his written refuses person arrested go jail that the defendant would appear court as hereinafter promise ticket; sign did not that is defendant art. provided.” Tex.Rev.Civ.Stat.ANN. citation; in fact that the defendant did 1977). 6701d, 147(5) (Vernon § citation and the defen- receive the copies Here, up his citation; tore signed defen- Sedani dant that the Treat retained Officer copy a true of the the citation. dant Sedani received original copies 148(b) reflecting other specifies Seda- tion appearance must promise appear. ni’s written days Section be set at least 10 after the arrest. 149(a) provides person 6701d, of the act guilty 148(b) art. § Tex.Rev.Civ.Stat.Ann. (Vernon 1977). 148(d) wilfully provides of misdemeanor if he Section violates his copy that when a promise appear in the written notice is Tex.Rev.Civ. arrested, person delivered to the 6701d, (Vernon 149(a) art. officer § Stat.Ann. shall 1977). forthwith release him. However, out, points as Sedani Tex.Rev.Civ. 6701d, 148(d) (Vernon art. appearance § date must be days Stat.Ann. set 10 1977). section, 148(e), The next section pro- after the arrest. Tex.Rev.Civ.Stat.Ann. penalty vides for the when an officer does 6701d, 148(b) (Vernon 1977). art. There- § procedure: not adhere to “Any this officer fore, he possibly could not have violated his violating any provisions of the of this sec- promise night on the of his ar- tion guilty shall be misconduct office rest. subject and shall be to removal from of- 6701d, 148(d), Article section of the Tex- 6701d, fice.” Tex.Rev.Civ.Stat.Ann. art. provides: as Civil Statutes 148(e)(Vernon 1977). following sec- § person The arrested in order to secure act, 149(a), tion of the provides section provided section, release as in this must penalty person the willfully when a violates give promise his written so to promise his written appear: person to the by signing duplicate court the written guilty is aof misdemeanor. Tex.Rev.Civ. prepared by notice arresting the officer. 6701d, 149(a) (Vernon art. § Stat.Ann. original The of said notice shall be re- 1977). by tained said officer copy and the there- 148(d) Construing section in the context of person delivered to the arrested. statute, of the entire we conclude Sedani Thereupon, said officer shall forthwith illegally was detained after he received his arrested, person release the from custo- copies of the citation. The fact Sedani tore dy- up his citation and did not have notice of 6701d, 148(d) art. § Tex.Rev.Civ.Stat.Ann. place appearance the time and for court (Vernon 1977) (emphasis added). is of no moment. We hold the statute is Thus, legally whether Sedani was de- mandatory penalizes because it an officer tained given after the were him citations to provisions. who does not follow its Since turns on whether the term “shall forthwith mandatory obligation the officer had a to Sedani, release” allows Officer Treat to re-arrest release probable there was no parties any signed Sedani. The do not cite cause to hold him after he prom case on appear. to point. ise Lewis v. 664 Cf. 345, (Tex.Crim.App.1984) S.W.2d 351 n. 4 Statutes should read as a whole (Clinton, J., dissenting). Because the ar give and construed to meaning every police handgun rest that led to the was part. Morter v. 718 illegal, handgun suppressed. must be (Tex.Crim.App.1977) (looking to both civil 38.23(a)(Vernon Tex.Code Crim.P.Ann. art. construing and criminal law in case Supp.1993). Points of error one and two Code). determining Penal The issue in are sustained. meaning of the word “shall” is “what con reversed, The is and the cause sequences follow a failure comply.” is remanded. $435,000, (Tex. State S.W.2d 1992). JONES, J., participating not 148(a) provides per- Section that when a opinion. violation, son is arrested for a traffic and is OPINION ON REHEARING1 immediately magistrate, taken before a COHEN, Justice. prepare the officer shall a “written notice appear.” rehearing, art. On the State contends that Tex.Rev.Civ.Stat.Ann. 6701d, 148(a) (Vernon Supp.1993). because, appellant’s legal arrest was Sec- § review, give parties seeking peri- 1. In order to time full ods for further we withdraw our Calloway concluded its traffic dropping pieces some the torn by stating, he committed the ground, lengthy to the discussion ticket presence; littering in officer’s crime of it is well established that Further thus, justified arrest was the warrantless ruling given fact that a correct is mere 14.01(b)(Ver art. by Tex.Code Crim.P.Ann. wrong will not result in a reason 1) 1977). concedes non State If is correct on reversal. the decision trial that he arresting testified at officer any theory applicable of law the case littering, but for appellant not for arrested it will not be disturbed. reasons, 2) the trial court totally unrelated added). (emphasis 743 S.W.2d at 651-52 the arrest was prosecutor never contended totally littering, but relied on justified Thus, is not the issue whether 3) reasons, the trial court unrelated law, theory any decision is correct on for litter judge did not find the arrest was theory but whether it is correct on totally justified ing, found it was but require That applicable law to the case. Nevertheless, the unrelated reasons. State significant ment makes a difference this appellant’s should overrule contends we littering is not theory The State’s case. rul judge’s a trial point of error because it applicable to the case because was not correct, if ing, upheld should be even the State raised in the trial Both wrong made for the reasons. For this was totally expressly relied on judge and trial proposition, Calloway the State relies on grounds. If the believed different (Tex.Crim. State, 743 S.W.2d littering to the theory applicable App.1988). case, have said that the trial should distinguishable. That deci- Calloway court, proof when it had burden grant victory sion did not the on State ap justify warrantless search and when a theory totally a different appeal based on heard, pellant right present had a be it in the trial court. from what claimed evidence, argue the facts and to relevant mo- judge Calloway The trial in denied a and law. suppress tion to because the defendant had six decisions Calloway opinion cited standing. judge incorrectly no stated ruling proposition that a supporting the standing Calloway there was no because if on it is correct will not be disturbed or interest in proprietary possessory had no Like theory applicable to the case. of law correctly argued the house. The defendant the State to of them allows Calloway, none appeal standing that not determined on totally unre- appeal on theory new invent a interest, possessory but proprietary or in argued it the trial lated to what reasonably expected privacy whether 130, State, 131-32 v. 491 S.W.2d O’Neal place in the searched. The Court Crimi- court, (trial reject- in (Tex.Crim.App.1973) although Appeals judge held that the nal errone- plea probation, ing defendant’s legal wrong used the test decide the an accom- ously that defendant was stated issue, standing appellant was not harmed he was plice, evidence showed where he had no evidence showed stand- because 790, State, S.W.2d principal); Miles v. 488 test, i.e., ing under the correct that he had (trial judge incor- (Tex.Crim.App.1972) 792 expectation privacy. Id. at a reasonable defendant’s statement rectly that stated Thus, Calloway the court did 650-51. the of- gestae of as res was admissible requests what here. nothing like the State fense, gestae of the actually it res but uphold appeal on judgment It did 238, State, arrest); 475 S.W.2d Smith trial. On theory on a unheard of at based (trial judge incor- (Tex.Crim.App.1971) 239 standing litigat- contrary, the issue was the state- consistent prior that court, rectly stated trial Calloway ed truth to determine admissible ment was Court of Crimi- appeals, and than testimony, rather the witness’ at 646-49. Appeals. 743 S.W.2d nal opinion and order. denying opinion the order without earlier rehearing and substitute this State’s motion for 320 impeach- 245-47,

rehabilitate the witness after 58 S.Ct. at 157-59. That is not ment); State, 231, Venable v. 397 S.W.2d story, the end of the however. Instead of (trial (Tex.Crim.App.1965) judge 233 found rendering judgment government, for the guilty allowing DWI defendant was an supreme court remanded the case to car, person intoxicated to drive his where appeals, the board of tax give order to alleged proved fact, and as taxpayer the “opportunity to establish personally well as that defendant drove Board additional facts which intoxicated); while Moreno v. 247, would affect the result.” Id. at 410, (1960) Tex.Crim. 341 S.W.2d Thus, S.Ct. at 158. taxpayer, Mr. Gow- (trial judge erroneously ruled that search ran, did not on appeal lose based on some void, partially warrants were correctly but theory government new discovered anyway); admitted evidence Parsons v. long after he opportunity had lost the to be 160 Tex.Crim. opposition heard in to it. The State would (1953) (when (op. reh’g) trial opposite have us do the of what the Su- judge struck defendant’s motion for contin- preme in Helvering. Court did It would uance personally because defendant did not against appellant have us rule based on a it, swear to there was no error because theory court, never mentioned the trial proved missing defendant never what the giving appellant right without to be said). witnesses would have heard. We decline to do so. Parsons, In Ap- the Court of Criminal There why are two reasons peals quoted approval Helvering from line Calloway of cases should not be used Gowran, 238, 245-47, 58 S.Ct. First, urges. as the State Texas law re (1937): 82 L.Ed. 224 “In the re- quires appellant an specific state judicial view proceedings the rule is set- grounds objection for an and to state rea that, tled correct, the decision below is any ruling sons for or he desires. affirmed, must although the lower court 52(a). Tex.R.App.P. requirement This en upon wrong ground gave relied or judge ables the trial to know the basis for wrong reason.” 271 S.W.2d at 655. motion, objection gives or approved While the Helvering court opposing party knowledge the same so that rule, applied way it did so in a com- may present argue oppo it evidence and pletely different way from the the State party sition. When a is allowed to hide the Helvering have us rule. was a tax requested reasons for its relief until the case. The taxpayer lost in the board of tax appeal, purposes both are defeated. It is appeals, appeal, an administrative and then comply unfair to make a criminal defendant appealed ap- to the federal circuit court of requirements, with these reasonable but peals. 240, 302 at at At U.S. 58 S.Ct. 155. exempt the State from them. See State litigation, government Gonzales, (Tex.App. 850 S.W.2d 672 theory urged raised a new had — San 1993, h.) pet. (refusing Antonio no defen appeals. the board of taxpayer, tax The request apply dant’s the Calloway rule however, instead, object; did not he con- suppressing to affirm an order evidence appeals reject vinced the court of grounds on new not raised in the based government’s theory new and to rule for . court) get trial The State should not 240-41, him. Id. at 58 S.Ct. at 155-56. secret, keep its theories of the case a while government appealed then to the Su- require the courts the defendant to reveal Court, preme raising theory. the same At open may his in court so that the State point, taxpayer objected this that the Moreover, if the rebut them. State is to be government theory had failed to raise this 245, allowed to raise new theories of law for the appeals. board of tax Id. at then, least, appeal, very at first time on Supreme S.Ct. at 157-58. The Court held requests the defendant it should government that the could the theo- who be assert court, that, ry appeal, agreed given a remand to the trial so for first time on Gowran, government’s theory, op new and reversed like Mr. “he should have judgment appeals. portunity of the court of Id. to establish before the [finder affect facts which would additional fact] 247, at Helvering, the result.” opportunity to Without that

S.Ct. 158. facts, party is denied additional

establish has because process

due law rea- on secret imposed upon it based

been until after has lost

sons not revealed

right to heard. Calloway nor the that neither

We hold af- to be there allow this case

cases cited theory of on the new

firmed based State’s

littering. rehearing over- motion for

The State’s

ruled. BAILEY, Appellant, Clay

Theo Houston, Bolden, appellant. R. Hazel Texas, Appellee. STATE Jr., Holmes, Alan Atty., B. Dist. John Attys., Schwarz, Dist. Curry, Asst. Melissa No. 01-91-00987-CR. Houston, appellee. Texas, Appeals of Court of (1st Dist.). Houston COHEN, Before PRICE1 MIRABAL, JJ. Feb. 1993.

Rehearing Denied March 1993. OPINION Discretionary Review Granted COHEN, Justice. June 1993. guilty of deliver- jury appellant

A found Appellant pled true to two ing cocaine. jury paragraphs, and as- enhancement 60-years confine- punishment sessed and remand. ment. We reverse error, appellant In his third insufficient. We asserts the evidence is sufficiency under the standard review the Virginia, set out Jackson 61 L.Ed.2d 99 S.Ct. (1979). appellant made showed evidence face-to-face, sale of cocaine hand-to-hand He police was arrested Houston officer. attempt flee. later, despite his minutes Houston, Price, assignment. participating by justice, C. Frank former 1. The Honorable Appeals, First District of Texas at Court of

Case Details

Case Name: Sedani v. State

Court Name: Court of Appeals of Texas

Date Published: Jun 9, 1993

Citation: 848 S.W.2d 314

Docket Number: 01-91-00839-CR

Court Abbreviation: Tex. App.