Ameer Hirani v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00391-CR
AMEER HIRANI APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1472571D
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In a single point, Appellant Ameer Hirani contends that because the State
voluntarily chose to pursue its motion for asset forfeiture of contraband gambling
items under Article 18.18(b) of the Texas Code of Criminal Procedure—rather
than waiting for a final conviction under Article 18.18(a) or pursuing the forfeiture
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See Tex. R. App. P. 47.4.
under chapter 59—he could not have been subsequently prosecuted for any
criminal offense related to the forfeiture. See Tex. Code Crim. Proc. Ann.
art. 18.18 (West 2015), id. arts. 59.01–.14 (West 2018). He argues that because
of the State’s choice regarding the forfeiture, the trial court abused its discretion
by denying his motion to dismiss these later criminal charges brought against
him. We disagree and affirm the trial court’s decision based on long-standing
Texas precedent and fundamental canons of statutory construction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2016, the Fort Worth Police Department executed a search
warrant on Hirani’s business, seizing the following: (1) nearly $19,000 in cash;
(2) thirty-five computer motherboards; (3) one ledger; (4) one DVR; (5) one
computer; (6) twenty-one cameras; (7) one money counter; (8) one ticket printer;
and (9) one black air pistol. Three weeks later, the State filed its “Motion for
Forfeiture of Gambling Proceeds, Devices, Equipment, and Paraphernalia,”
requesting the property’s forfeiture to the State under Texas Code of Criminal
Procedure Article 18.18(b). Hirani received notice of this motion but did not
respond, and the trial court ordered that the seized assets be forfeited to the
State. The State did not provide written notice to the Fort Worth Police
Department (or Hirani) that no criminal prosecution would follow the asset
forfeiture.
On October 6, 2016, Hirani was indicted and charged with the felony
offense of engaging in organized criminal activity and the misdemeanor offense
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of keeping a gambling place. 2 On August 30, 2017, he filed a motion to dismiss
the indictment, averring that the State was barred from pursuing charges against
him because it failed to provide him with notice that he would not be prosecuted
after the gambling equipment was seized pursuant to Article 18.18(b) of the
Texas Code of Criminal Procedure. The trial court denied the motion to dismiss,
and on November 17, 2017, Hirani pled guilty to the felony offense as part of a
plea bargain. Hirani preserved his right to appeal the trial court’s ruling on his
pretrial motion to dismiss.
III. ANALYSIS
A. The Denial of a Motion to Dismiss Is Reviewed for an Abuse of
Discretion.
We review the trial court’s denial of Hirani’s motion to dismiss for an abuse
of discretion. Williams v. State, 464 S.W.2d 842, 844–45 (Tex. Crim. App. 1971).
A trial court abuses its discretion when its ruling lies outside the zone of
reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.
App. 2010), cert. denied, 563 U.S. 1037 (2011). In this case, we review whether
the trial court abused its discretion by denying Hirani’s motion to dismiss when
the State pursued its forfeiture under Article 18.18(b) of the Texas Code of
Criminal Procedure but did not provide notice under that statute that it would not
prosecute him.
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The misdemeanor charges are not the subject of this appeal.
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B. Texas Code of Criminal Procedure Article 18.18 Provides Two
Methods for the Forfeiture of Contraband.
Article 18.18 of the Texas Code of Criminal Procedure prescribes two
methods for the forfeiture of contraband. Tex. Code Crim. Proc. Ann. art. 18.18.
These methods are independent of forfeiture procedures in Chapter 59. Tex.
Code Crim. Proc. Ann. art. 59.011; see Burnom v. State, 55 S.W.3d 752,
754 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“Because Article 18.18(b)
provides a valid basis for the forfeiture, we need not address appellants’
contention that the State cannot rely on Article 59.02 to justify the forfeiture. In
fact, the State did not rely on Article 59.02 in the court below, or on appeal, as
authority for the forfeiture.”) Under Article 18.18(a), the State can pursue the
seizure and forfeiture of contraband gambling items, including machines,
devices, equipment, and gambling paraphernalia. Tex. Code Crim. Proc. Ann.
art. 18.18(a). Article 18.18(a) applies only when a person is convicted for one of
its enumerated crimes, such as possession of gambling equipment or offenses
involving obscene devices or criminal instruments. Id.; see State v. Dugar,
553 S.W.2d 102, 103 (Tex. 1977).
In contrast, under Article 18.18(b), the State may initiate the forfeiture of
seized gambling items, including machines, devices, equipment, gambling
paraphernalia, and other items, in proceedings against someone “[i]f there is no
prosecution or conviction following seizure.” Tex. Code Crim. Proc. Ann.
art. 18.18(b) (emphasis added). Forty-one years ago, in Dugar, the Texas
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Supreme Court addressed the meaning of that emphasized language in resolving
the counterpart to the issue Hirani raises on appeal. Dugar, 553 S.W.2d at 104.
Dugar complained about the forfeiture of his gambling funds because, although
he was convicted of an offense related to the seized items, he was not convicted
of an offense listed in Article 18.18(a). Id. Addressing whether forfeitures could
occur following convictions of offenses not listed in subsection (a), the Court
issued a resounding “yes.” Id. Interpreting Article 18.18 in its entirety and as it is
plainly written, the Court held that if Article 18.18(b) is interpreted to apply only to
persons who have not been prosecuted or convicted “for any offense as the
literal language of the statute indicates, funds that are clearly gambling proceeds
could not be forfeited solely because the State obtained a conviction of an
offense that was not among those listed in Section (a).” Id. at 104 (emphasis
added). “Such a reading is too narrow” and “contrary to the basic premise of an
in rem forfeiture proceeding that, while the possessor may not be guilty of any
criminal offense, the property seized is of such a nature that it should be
destroyed or confiscated by the State.” Id. “Therefore, we believe that the
Legislature must have intended that Sections (b)–(f) provide the authority for
forfeitures in all cases not covered by Section (a), that is, in all cases other than
those in which there is a conviction for a listed offense.” Id.
C. Article 18.18(b) Permits Both Forfeiture and Prosecution in This Case.
Hirani contends that the State’s choice to pursue forfeiture proceedings
under Article 18.18(b) prevented it from pursuing any conviction thereafter.
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Claiming that the “plain text” demands that we do so, he asks that we interpret
Article 18.18(b) as barring the State from prosecuting him for any offense related
to the seized and forfeited evidence because he was not charged with one of
Article 18.18(a)’s enumerated crimes. Hirani relies on the statutory language
emphasized above as well as language in the last sentence of Article 18.18(b)
requiring “[a] law enforcement agency [to] make a motion under this section in a
timely manner after the time at which the agency is informed in writing by the
attorney representing the state that no prosecution will arise from seizure.” Tex.
Code Crim. Proc. Ann. art. 18.18(b) (emphasis added).
Hirani invites us to divert from well-settled, decades-old Texas Supreme
Court precedent. We decline to do so. Here, as in Dugar, Article 18.18(b) was
appropriately utilized. The record shows that Hirani was not charged or
convicted of one of Article 18.18(a)’s enumerated offenses. See Tex. Code
Crim. Proc. Ann. art. 18.18(a). The State correctly declined to pursue forfeiture
under that section. However, Hirani’s gambling operations utilized property that
“is of such a nature that it should be destroyed or confiscated by the State.”
Dugar, 553 S.W.2d at 104.
Like the Texas Supreme Court in Dugar, we decline to “don blinders” and
read snippets of Article 18.18 without reading the statute as a whole. Indeed,
statutory interpretation does not involve cherry-picking phrases from statutes in
isolation; rather, courts are admonished to guard against interpreting statutes in a
manner that treats statutory terms as redundant or mere surplusage. See Nat’l
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Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501, 118 S.
Ct. 927, 939 (1998) (Thomas, J.); see also, e.g., Babbitt v. Sweet Home Chapter
of Cmtys. for a Great Oregon, 515 U.S. 687, 698, 115 S. Ct. 2407, 2413 (1995)
(“A reluctance to treat statutory terms as surplusage supports the
reasonableness of the Secretary’s interpretation.”); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“If possible,
every word and every provision is to be given effect . . . . None should be
ignored. None should needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.”) If this court were to
adopt Hirani’s position, as the Texas Supreme Court pointed out in 1977, Article
18.18(b) would be effectively neutered, rendering it mere surplusage. See Tex.
Code Crim. Proc. Ann. art. 18.18; Babbitt, 515 U.S. at 698; 115 S. Ct. at 2413;
Dugar, 553 S.W.2d at 104–05; see also Sturges v. Crowninshield, 17 U.S.
(4 Wheat.) 122, 202 (1819) (Marshall, C.J.) (“It would be dangerous in the
extreme, to infer from extrinsic circumstances, that a case for which the words of
an instrument expressly provide, shall be exempted from its operation.”).
For Article 18.18(b) to have meaning, we must infer, like the Texas
Supreme Court, that it applies to persons charged with crimes not listed in
subsection (a) as well as persons not yet charged with crimes but in possession
of property of “such a nature that it should be destroyed or confiscated by the
State.” See Dugar, 553 S.W.2d at 104–05; see also Tex. Code Crim. Proc. Ann.
art. 18.18(b). Reading article 18.18 as a whole and according to its plain
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language, we hold that just as Dugar’s conviction for an offense not listed in
subsection (a) did not prevent the later forfeiture of his gambling funds under
subsection (b), the forfeiture of Hirani’s assets under subsection (b) did not
prevent his later prosecution and conviction for an offense not listed in
subsection (a), despite the language in subsection (b) stating that “no
prosecution will arise from the seizure” and referring to “no prosecution or
conviction following seizure.” Tex. Code Crim. Proc. Ann. art. 18.18(b); see
Dugar, 553 S.W.2d at 104–05; see also In re Seizure of Gambling Proceeds and
Devices, 261 S.W.3d 439, 446–48 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (acknowledging language in Article 18.18(b) alluding to a search warrant
but holding that the statute contains no language requiring a warrant before
forfeiture or penalizing the State for not getting a warrant). We overrule Hirani’s
point insofar as he argues that Dugar was wrongly decided and that the plain
language of the statute requires the dismissal of the indictment or his conviction.
D. Absence of Notice Under Article 18.18 Does Not Require Dismissal of
Hirani’s Conviction or of the Case Against Him.
Relying on the last sentence of Article 18.18(b), Hirani also complains that
the State failed to provide notice to the Fort Worth Police Department that no
prosecution would occur, which he contends was a condition precedent to
forfeiture under Article 18.18(b). But Hirani states in his brief that he does not
challenge the forfeiture of his assets. He instead argues that the notice failure
should be remedied with the dismissal of his criminal case. To the extent this
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argument relates to the interpretation of Article 18.18, we overruled it above. To
the extent that Hirani focuses on the alleged notice defect itself and argues that it
must be remedied with the vacatur of his conviction and the dismissal of the
criminal charges against him, we overrule this argument as inadequately briefed.
See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim.
App. 2011) (citing cases), cert. denied, 566 U.S. 1036 (2012). Nevertheless, in
the interest of justice, we note that vacating Hirani’s conviction and dismissing
the criminal charges against him because of an alleged defect in civil forfeiture
proceedings—the result of which he did not appeal—is a drastic and
inappropriate remedy. Cf. Ex parte Walsh, 530 S.W.3d 774, 779 (Tex. App.—
Fort Worth 2017, no pet.) (holding that “[t]he dismissal of an indictment is a
‘drastic measure’ only to be used in the ‘most extraordinary circumstances’”)
(quoting State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003)). Further,
the sentence Hirani points to is cabined to the prior sentence in the statute
discussing situations in which law enforcement agencies confiscate firearms, a
situation not present here. See Tex. Code Crim. Proc. Ann. art. 18.18(b). We
overrule Hirani’s point in its entirety.
IV. CONCLUSION
Having overruled Hirani’s sole point, we affirm the trial court’s judgment.
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/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 12, 2018
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