Bellamy v. State

• Decision Date: 16 December 1987
• Docket Number: No. 1082-85,1082-85
• Citation: 742 S.W.2d 677
• Parties: Sidney BELLAMY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 677

742 S.W.2d 677

Sidney BELLAMY, Appellant, v. The STATE of Texas, Appellee.

No. 1082-85.

Court of Criminal Appeals of Texas En Banc.

Dec. 16, 1987.

Susan Larsen, El Paso, for appellant.

Herbert B. Hancock, Dist. Atty. and Martha J. Sullivan, Asst. Dist. Atty., Nacogdoches, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was indicted for the offense of theft. The indictment alleged that on or about February 28, 1981 he "acquired" "26 sterling silver spoons and 8 sterling silver knives, of the value of more than two hundred dollars and less than ten thousand dollars," "knowing that it was property stolen from another[.]" V.T.C.A. Penal Code, § 31.03(b). After finding appellant guilty, the jury assessed punishment at five years, probated, and a fine of $5,000.00.

Among appellant's contentions on appeal was a Fourteenth Amendment due process challenge to the presumption provided for by V.T.C.A. Penal Code, § 31.03(c)(3) and (4). ¹ Appellant alleged that the jury charge given pursuant to this provision, as mandated by V.T.C.A. Penal Code, § 2.05, ² "allowed an impermissible shifting of the burden of proof from the State by raising a conclusive and arbitrary presumption." The Tyler Court of Appeals disagreed, and affirmed appellant's conviction in a published opinion. Bellamy v. State (Tex.App.--Tyler, No. 12-82-0052-CR, delivered August 29, 1985). We granted appellant's petition for discretionary review to address his renewed claim that § 31.03(c)(3), supra, is unconstitutional under the Fourteenth Amendment. See Tex.R.App.Pro., Rule 200(c)(4).

I.

Sometime in the latter part of February, 1981, the home of Mr. and Mrs. J.R. Robie Lee was burglarized by three young men, Billy Ebarb, Curtis Robinson and Darryl Hodney. The silverware alleged in the indictment to have been acquired by appellant was taken during this burglary.

Appellant was a professor at Stephen F. Austin State University, and also, as the court of appeals depicted him, "a trader and dealer in secondhand personal property." On April 2, 1981, a number of peace officers from various state and local law enforcement entities executed a warrant to search appellant's home in Nacogdoches looking for what Deputy Sheriff H.R. McDaniel described as "silverware, jewelry." ³ They found and seized from the kitchen and "shop" areas of the house literally hundreds, perhaps thousands of items of secondhand personal property, including rings, watches, silver and silverware, and divers jewelry. Aside from the silverware alleged in the indictment, and "several" rings and necklaces, however, none of these items was shown to be stolen, and all were eventually returned to appellant. No records of who sold him any of the property were found on the premises--indeed, appellant effectively testified he did not systematically keep any such records.

Pursuant to an agreement with the State not made entirely clear by the record, Billy Ebarb testified against appellant. According to Ebarb's account, he first went to appellant's house sometime before Christmas in 1980 in response to a newspaper ad appellant had placed indicating he "bought gold and silver[.]" Ebarb sold appellant "a few rings" at that time, none of which was stolen. Appellant advised Ebarb that "whenever [he] got anything just bring them on out[,]" and "[d]on't never worry about nothing." On a second occasion Ebarb took "some rings and a couple of necklaces" to appellant, this time stolen. By Christmas of 1980 Ebarb had been to appellant's house at least fifteen times, to sell him "[g]old rings, silver, gold necklaces, silverware," all of which came from burglaries committed by Ebarb, Robinson and Hodney, numbering "in the hundreds." ⁴ Appellant always paid in cash, never gave Ebarb a receipt, and never asked for or recorded any form of identification. Though Ebarb never indicated where the property was coming from, appellant at one point remarked, "I know you ain't getting this off the streets." On another occasion appellant told Ebarb "if [Ebarb] got picked up and arrested for burglary, don't say nothing about [appellant], if anything ... ever came down about him why he was getting rid of it and he wouldn't say where he got it from." For the Lees' silverware and "a few rings," appellant paid Ebarb "about $450.00 or a little more."

Following a cavalcade of defense witnesses, twenty seven in all, attesting to his good reputation in the community for being honest, truthful and lawabiding, appellant took the stand in his own behalf. He testified that he was a trader in jewelry and that he bought up gold and silver as an investment. Ebarb appeared at his house three or four times before the day appellant bought the silverware. The first occasion was in August of 1980, when appellant bought a class ring Ebarb said was his sister's. On a second occasion, in late December or January, appellant bought a few "small items" from Ebarb, and on another occasion Ebarb simply appeared and asked for a loan, which appellant refused. Appellant admitted buying one ring from Ebarb that was shown to be stolen, but denied having bought two to three hundred. He flatly denied having made the statements attributed to him by Ebarb.

Obviously the key point of contention at trial was whether appellant knew the silverware was stolen when he acquired it. Apart from Ebarb's testimony, relevant circumstances which militate in favor of the inference that appellant did know include: that a young man of Ebarb's age (17) and youthful appearance would have possession of fine silver to sell; that officers executing the search warrant observed equipment for melting down gold and silver in appellant's shop; and that appellant admittedly taught Ebarb several methods of identifying grades of gold and silver, and gave him tools for determining the authenticity of diamonds. Circumstances militating against the inference that appellant knew include: that such a minute portion of the property found in appellant's house ultimately proved stolen; that appellant cooperated fully with officers executing the warrant; and that the State's own expert testified that at the time appellant bought the silverware from Ebarb, the price he paid was reasonable, and not "ridiculously low," at least "[b]ased entirely on the fine silver content."

At the conclusion of the evidence the trial court charged the jury on the presumption contained in § 31.03(c)(3), supra, as follows:

"You are further instructed that a Defendant engaged in the business of buying and selling used or secondhand personal property is presumed to know upon receipt by the Defendant of property, other than a motor vehicle, that the property has been previously stolen from another person, if the Defendant pays $25.00 or more for the property and the Defendant knowingly or recklessly fails to do each of the following:

"(i) fails to record the names, address, and physical description or identification number of the seller or pledgor;

"(ii) fails to record a complete description of the property, including the serial number, if reasonably available, or other identifying characteristics; or

"(iii) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor had the right to possess the property.

"Identification number used in subparagraph one above means drivers license, military identification number, identification certificate, or other official number capable of identifying an individual.

"However, before such presumption may be indulged by the jury, it must find from the evidence beyond a reasonable doubt, that the property was stolen from another person and then, if such is established beyond a reasonable doubt, the jury may find that the Defendant knew the property was stolen from another person. It is the exculusive [sic] province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrants [sic] such presumption, but the jury is not bound to so find. And even if the jury so finds that the Defendant knew said property was stolen at the time of the receipt of same, as alleged in the indictment, the State must prove beyond a reasonable doubt each of the other elements of the offense set out in the indictment and recited herein ...

"If you have a reasonable doubt as to whether the Defendant, at the time he received the property knew said property was stolen from another person at the time he received said property, as alleged in the indictment, or any other element of the alleged offense as set forth in the indictment and recited herein ..., then you will acquit the Defendant, Sidney Bellamy, and say 'not guilty.' " ⁵

Appellant did not object to this or any other portion of the court's charge.

During opening final argument the prosecutor acknowledged that "almost the whole point of dispute in this matter, goes down to [appellant's] intent." She then reviewed the above portion of the court's charge, and commented:

"... So, what you have here, ladies and gentleman, is a presumption. It is not binding upon the jury, but it is placed in our law. I would submit for a reason. That is, to put a burden on people who buy and sell merchandise, secondhand merchandise."

The prosecutor went on to argue other circumstances probative of appellant's knowledge, and only once more alluded to the presumption, and then very briefly, in rebuttal.

In the court of appeals appellant relied principally upon County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), to argue that the presumption in § 31.03(c)(3), supra, was unconstitutional in that "[a]ctual knowledge that property was stolen has no rational connection to recording data about its seller." In response, the court of appeals merely observed:

"There is a rational connection between a used-goods dealer's...