Browning v. State

• Decision Date: 17 September 1986
• Docket Number: No. 0245-85,0245-85
• Citation: 720 S.W.2d 504
• Parties: Gary Wayne BROWNING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

720 S.W.2d 504

Gary Wayne BROWNING, Appellant, v. The STATE of Texas, Appellee.

No. 0245-85.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

James K. Johnson, Lawrence B. Mitchell (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty. and Michael A. Klein, Asst. Dist. Atty., Dallas, 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 convicted of burglary of a habitation and after proof of one prior conviction his punishment was assessed at twenty years' confinement. The trial court in its charge on guilt/innocence instructed the jury that, "Our law provides that the act of breaking and entering at nighttime raises a presumption that the act was done with the intent to commit theft. Such presumption is rebuttable." Appellant's objection to this portion of the charge was overruled. In an unpublished opinion the Dallas Court of Appeals held that this statement in the charge "is a substantially correct statement of the current Texas law," and affirmed the conviction. Browning v. State, No. 05-83-01098-CR (Tex.App.--Dallas, delivered January 11, 1985). We granted appellant's petition to review this holding of the court of appeals.

Initially this Court refused review of the court of appeals' decision. On motion for rehearing after petition for discretionary review was refused, however, appellant pointed out that since the filing of his petition a different panel of the same court of appeals had reached the opposite result on the same question presented in appellant's appeal. Shockley v. State, 695 S.W.2d 754 (Tex.App.--Dallas 1985) (PDR pending). We therefore granted review pursuant to Tex.Cr.App. Rule 302(c)(5).

Appellant's contention is that the jury could have inferred intent to commit theft from the nighttime entry into the dwelling, but that it was error to instruct the jury that the law provides such a presumption. For the first time the State argues this error, if error, has not been preserved because appellant's ground for review does not comport with the objection made in the trial court. We disagree.

Appellant made an oral pretrial motion in limine asking that the State not be allowed to instruct the jury that intent to commit theft could be presumed if entry was made into the habitation at night. Appellant's counsel explained that appellant had been indicted for burglary with the intent to commit theft, so that that specific intent was an element of the offense. "... [T]hat is a basic element of which they [the State] have the burden of proof to show the jury beyond a reasonable doubt, and unless they demonstrate by that evidence beyond a reasonable doubt that the entry was made with the intent to commit the crime of theft, then they are not entitled to a conviction. And I would object to them telling the jury that when a person enters a habitation at nighttime, or any other time, that the intent to commit the crime of theft is presumed, because that is not a proper statement of the law." Appellant further stated, "That's a legal presumption, Judge, and not one that you instruct the jury on." The trial court denied this requested motion in limine.

When attorneys for the State did begin to explain this so called "presumption" to the jury panel during voir dire, appellant objected, on the basis of his pretrial motion. His objection was overruled. Finally, appellant objected to this portion of the court's charge on the basis that it was "not a correct statement of the law and that it is a comment on the weight of the evidence." Again his objection was overruled. By that time both the State and the trial court had been amply informed of the basis for the objection.

In the court of appeals appellant argued, "The charge in the instant case misstates the law and would have permitted the jury to convict appellant without finding each and every element of the State's case to be true beyond a reasonable doubt." This is the same argument made to the trial court. The counterpoint of the State is that the charge is correct. In this Court appellant argues, "The instruction complained of herein misstated the law and permitted the jury to convict Appellant upon the finding of less than all of the elements of the State's case beyond a reasonable doubt. Such a charge is fundamentally defective for failure to require the State to prove each and every allegation of a material element of the offense." This is virtually identical to the argument made to the court of appeals. It is true that in this Court appellant cites cases that were not available to him in the trial court and the court of appeals, as shall be shown post, but the basis for appellant's objection has remained the same, that the instruction lessened the State's burden of proof. Accordingly, we find the belated argument advanced by the State is without merit.

Furthermore, we granted appellant's petition in order to review the decision of the court of appeals, Art. 44.45, V.A.C.C.P., which held only that the instruction given in the charge was a correct statement of law. To that holding we now turn.

The court of appeals' opinion in this case was delivered January 11, 1985. The court was apparently, and understandably, unaware of this Court's opinion in Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985), delivered only two days earlier. In Aguilar, supra, Judge Miller stated for the Court, "The 'presumption' of intent to commit theft arising from non-consensual nighttime entry is an appellate vehicle employed to review the sufficiency of the evidence, not a trial vehicle used to prove an element of the State's case." Id. at 558 (footnote omitted). Except in consideration of a motion for instructed verdict or new trial for insufficiency of evidence, this inference of intent to commit theft is not a trial level presumption. As Judge Miller explained concerning another so called presumption in Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983) (the "presumption" of guilt of theft arising from unexplained possession of recently stolen property), this is only a permissible inference. It is not conclusive, nor does it shift the burden of proof, as a true presumption would do. Id. at 77. Appellant's entry into a habitation at night is simply a circumstance perhaps indicating guilt, from which the jury may or may not infer an intent to commit theft. The State still has the burden of proving that element of the offense, circumstantially or otherwise.

When this issue again came before the Dallas Court of Appeals, in Shockley, supra, the court held, "Following Aguilar, we hold that the presumption of intent to commit theft arising from non-consentual [sic] nighttime entry is intended solely as a guide for appellate consideration to determine sufficiency of the evidence to sustain a conviction and is not to be given in a charge to the jury." Id. at 756. The court also cited the Fort Worth Court of Appeals' opinion in Roberts v. State, 672 S.W.2d 570 (Tex.App.--Fort Worth 1984) (also dealing with the deduction of guilt of theft arising from unexplained possession of recently stolen property). That court held the giving of a charge on such a presumption is error. Such a charge in effect tells the jury the minimum amount of evidence from which they may find an element of the offense; i.e., the intent to commit theft. But that is something for the jury itself to decide. Giving such an instruction is "inescapably a comment on the weight of the evidence." Id. at 579.

The State argues that the "presumption" is well founded in Texas law, citing a long line of cases applying its logic, e.g., Mauldin v. State, 628 S.W.2d 793 (Tex.Cr.App.1982); Alexander v. State, 31 Tex.Cr.R. 359, 20 S.W. 756 (Tex.Cr.App.1892). This argument, however, misses the point.

In Mauldin, supra, the defendant claimed it had been error for the prosecutor to argue to the jury that they could make such an inference. This Court found no error, noting that "we cannot conclude that the prosecutor was in fact telling the jury that the presumption was in fact the law." Id. at 795. When this argument comes from the State's attorney in the form of a suggested inference, it is merely a request for the jury to make a reasonable deduction from the evidence. Mauldin, supra, at 795. Defense counsel could argue other plausible inferences, such as that because no property in the house was disturbed, appellant hadn't entered with the intent to steal.

The trial court in the instant case, by contrast, instructed the jury that, "Our law provides that the act of breaking and entering a habitation at nighttime raises a presumption that the act was done with the intent to commit theft ..." (emphasis added). In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference. In fact neither statute nor caselaw ^* provides such a "presumption" at the trial level. Instructing the jury that it does constitutes, in effect, a comment on the weight of the evidence. We do not hold that the jury may not make such an inference, nor that an appellate court in reviewing the sufficiency of the evidence may not assume that the jury made such a reasonable inference. The error lies in instructing the jury that they may apply such an inference.

Briefly, the facts of the instant case showed that the complaining witness woke at approximately one o'clock in the morning to find appellant in his house. Appellant was carrying nothing and after he fled the complainant found no property missing. Appellant testified that the night of the offense he had gotten drunk for only the second time in his life and the next day remembered...