Malik v. State

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 [*235] 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 Malik v. State, No. C14-92-01293-CR, 1994 WL 622002, (Tex.App.—Houston [14th Dist], delivered November 10, 1994)(unpublished).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 Malik v. State, No. 1369-94 (Tex.Crim.App., delivered March 29, 1995)(unpublished).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. C14r-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 App.—Houston [14th Dist], delivered February 15,1996)(unpublished).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.