Moosani v. State

Page 569

914 S.W.2d 569

Aslam Pervez MOOSANI, Appellant, v. The STATE of Texas, Appellee.

No. 0034-94.

Court of Criminal Appeals of Texas En Banc.

Dec. 6, 1995.

Frank R. Hughes, Crosby, Brian W. Wice, Houston, for appellant.

Dan McCrory, Asst. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted by a jury of the offense of unlawfully carrying a weapon. Punishment was assessed at a fine of $100 and confinement in the county jail for 180 days, probated for one year. The Fourteenth Court of Appeals affirmed appellant's conviction. Moosani v. State, 866 S.W.2d 736 (Tex.App.--Houston [14th] 1993). This Court granted appellant's petition for discretionary review in order to determine whether the Court of Appeals correctly applied the requisite proof to qualify for the exception to prosecution for carrying a pistol.

We find that the Court of Appeals' reasoning is correct and adopt it as our own. Accordingly, the judgment of the Court of Appeals is affirmed.

CLINTON, J., joins the opinion of the Court, observing that contrary to assertions by Judge BAIRD, dissenting at 572-73, the Second Amendment does not grant a right to bear arms unrelated to "a well regulated Militia." See Masters v. State, 685 S.W.2d 654 (Tex.Cr.App.1985).

OVERSTREET, J., concurs in the result.

WHITE, J., dissents.

BAIRD, Judge, dissenting.

We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in holding appellant was not entitled to assert a common law defense because he habitually carried a handgun. And, if appellant was not entitled to assert the common law defense, whether he was precluded from asserting the statutory defense of traveling. The plurality avoids these issues by simply adopting the opinion of the Court of Appeals. At an ever increasing pace, a plurality of this Court is treating the issues before us with a glib nonchalance, Gabriel v. State, 900 S.W.2d 721, 728, n. 1 (Tex.Cr.App.1995) (Baird, J., dissenting), and resorting to judicial convenience, Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Cr.App.1995) (Baird, J., dissenting), in order to dispose of our docket. Believing the issues presented in this case are important and require greater thought and consideration than merely adopting the opinion of another court, I dissent.

I.

Appellant was stopped, in front of the convenience store where he worked, for failing to use a turn signal. As appellant exited his vehicle, the police officer observed a handgun in a pocket of appellant's vehicle door. Appellant was arrested for unlawfully carrying a weapon. Tex.Penal Code Ann. § 46.02. ¹ At trial, appellant contended he was entitled to the common law defense which permits one to carry a handgun between his home and work. The trial judge found appellant, who habitually carried the handgun between his home and place of business, was not entitled to assert the common law defense under Cortemeglia v. State, 505 S.W.2d 296 (Tex.Cr.App.1974). The Court of Appeals affirmed. Moosani v. State, 866 S.W.2d 736 (Tex.App.--Houston [14th Dist.] 1993) (citing, Cortemeglia, 505 S.W.2d at 296).

II.

A person commits an offense if he intentionally, knowingly, or recklessly carries a handgun. Tex.Penal Code Ann. § 46.02(a). However, there are several statutory defenses to this offense. Tex.Penal Code Ann. § 46.02(b). ² For example, a defendant may lawfully carry a handgun when "traveling." Tex.Penal Code Ann. § 46.02(b)(3). Additionally, we have recognized several common law defenses which arise when the defendant has a legitimate purpose to carry the weapon. See generally, Deuschle v. State, 4 S.W.2d 559, 560 (Tex.Cr.App.1927) (Op. on State's mtn. for rehearing). For example, a person has a legitimate purpose for carrying a weapon to any of the places excepted by § 46.02(b), such as his home or place of business. See e.g., Pressler v. State, 19 Tex.App. 52, 53 (right to carry handgun home from place of purchase); Impson v. State, 19 S.W. 677 (Tex.App.1892) (right to carry pistol to proper place to have weapon repaired); Waddell v. State, 37 Tex. 354 (1873) (right to carry a handgun home from the place of purchase); Bowles v. State, 66 Tex.Crim. 550, 147 S.W. 869 (App.1912) (right to carry gun home from place of business); Boissean v. State, 15 S.W. 118 (Tex.App.1890) (right to carry a gun from residence to place of business in order to clean the gun); Sanders v. State, 20 S.W. 556 (Tex.Cr.App.1892) (right to carry pistol from residence to place of business); Campbell v. State, 28 Tex.App. 44, 11 S.W. 832 (1889) (right to carry a gun from temporary home to a permanent home); and, Stilly v. State, 27 Tex.App. 445, 11 S.W. 458 (1889) (Person has right to carry handgun when "he ha[s] reasonable grounds for fearing an unlawful attack on his person."). These common law defenses are not unlimited, a defendant is entitled to assert such a defense only if: 1) the purpose for carrying the weapon was legitimate and not contrived; (2) the route taken was practical; and, (3) the defendant's journey proceeded without undue delay or unreasonable deviation. See generally, Cassi v. State, 86 Tex.Crim. 369, 216 S.W. 1099 (App.1919).

In connection with these common law defenses, we have considered whether a defendant may carry a handgun habitually. Cortemeglia, 505 S.W.2d 296; and, Chambers v. State, 34 Tex.Crim. 293, 30 S.W. 357 (App.1895). Cortemeglia was arrested for driving while intoxicated and a handgun was discovered in his glove compartment. Cortemeglia contended he had a legitimate purpose to carry the weapon, namely that he was in possession approximately $14,000.00 in cash and checks. There was further evidence Cortemeglia habitually carried large sums of money to his home from his store every Friday, taking the weapon for protection. Each Monday he returned the handgun to his store. Relying on Chambers, we held Cortemeglia was precluded from relying upon a common law defense because he habitually carried the handgun. Cortemeglia, 505 S.W.2d at 297.

III.

Appellant concedes that he habitually carried his handgun to and from his place of business. However, appellant asks us to overrule Chambers and its progeny which preclude the assertion of a common law defense if the carrying is habitual.

A.

We may not overrule our previous opinions simply because we disagree with them. The doctrine of stare decisis demands respect for previous opinions:

One of the principles of our legal system is that when a point of law has once been settled by decision of the highest court of the state, the decision becomes the law of the state and forms a precedent that is not afterward to be departed from.

16 Tex.Jur.3d Courts, 451, § 119. McGlothlin v. State, 896 S.W.2d 183 (Tex.Cr.App.1995). It is the doctrine of stare decisis which provides certainty and structure to the criminal justice system, and once a rule is deliberately adopted and followed, it should not be abandoned. Id., 896 S.W.2d at 189 (citing, Gearheart v. State, 81 Tex.Crim. 540, 197 S.W. 187, 188-189 (App.1917)).

Only when an earlier decision was clearly erroneous, or some special justification arises, may established precedent be overturned. Ex parte Porter, 827 S.W.2d 324, 331 (Baird, J., dissenting). This special justification may include: the precedent was based on conditions which no longer exist; the inability of the lower courts to apply the precedent; or our subsequent opinions conflict with the precedent. Id. (citing, 105 Harv.L.Rev. 177 (1991)). Based on these guidelines, and giving due deference to our earlier decisions, I believe the time has come to overrule the habitual limitation Chambers placed upon common law defenses.

B.

A careful review of Chambers demonstrates its holding was clearly erroneous. Before Chambers, evidence that a defendant habitually carried a weapon was admissible to determine whether the purpose for carrying the weapon was legitimate or contrived. In Sanders v. State, 20 S.W. 556 (Tex.Cr.App.1892), the defendant contended he held a common law defense because he carried the weapon to his place of business for the purpose of permitting the owner to redeem it. Ibid. The State was permitted to question Sanders about the number of times he had previously carried the weapon. We held the line of questioning was relevant to determine the truthfulness of Sanders' common law defense:

... The statement of facts does not warrant the conclusion that defendant was returning the pistol to the owner ... While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law.

Id., citing, Stilly, 11 S.W. 458; and, Impson v. State, 19 S.W. 677 (Tex.App.1892). Consequently, a defendant was entitled to assert a common law defense but the State was entitled to test its validity with evidence that the defendant habitually carried a weapon.

Three years later, in Skeen v. State, 30 S.W. 218 (Tex.Cr.App.1895), without citation to authority, we held, for the first time, a defendant who habitually carried a weapon between his house and his place of employment could not assert his common law defense. We stated:

... The appellant, from the evidence, was in the habit of carrying the pistol, it seems, back and forth between his house and his business place. This is not permitted by the law, and does not come within any of the exceptions set forth in the statute.

Id., at 219. However, on rehearing, we reconsidered this holding and held that Skeen's habitual carrying of a handgun did not preclude his use of the common law defense. Skeen, 30 S.W. 554 (Tex.Cr.App.1895) (op. on reh'g). Thus, Skeen, on rehearing, was consistent with Sanders.

Unfortunately, Chambers was decided in the time between the two...