Elwood Webber v. the State of Texas

• Decision Date: 24 August 2000
• Citation: 29 S.W.3d 226
• Parties: <!--29 S.W.3d 226 (Tex.App.-Houston 2000) ELWOOD WEBBER, Appellant V. THE STATE OF TEXAS, Appellee NO. 14-99-00234-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 226

29 S.W.3d 226 (Tex.App.-Houston [14th Dist.] 2000)

ELWOOD WEBBER, Appellant

V.

THE STATE OF TEXAS, Appellee

NO. 14-99-00234-CR

In The Fourteenth Court of Appeals

August 24, 2000.

On Appeal from the County Court at Law No. 2 Brazos County, Texas Trial Court Cause No. 3426-97

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Anderson, Frost, and Lee. ^*

O P I N I O N

Kem Thompson Frost, Justice

Charged with the offense of deadly conduct, the appellant, Elwood Webber was tried before a jury and found guilty. The court assessed punishment at 365 days in the Brazos County Jail. In two points of error, the appellant contends: (1) he was denied due process of law when the trial court failed to charge the jury on the law of presumptions pursuant to section 2.05 of the Texas Penal Code, and (2) he was denied effective assistance of counsel when trial counsel failed to object to the erroneous jury charge. We affirm.

Factual Background

The complainant, Eletha Steptoe, returned from work to find her house in disarray and the appellant, her common law husband, lying on the couch. Ms. Steptoe, who had planned to host a birthday party for her children at her home, became upset and began to mumble and complain about the messy state of the house. While running the water to clean the dishes, Ms. Steptoe realized that the appellant was pointing a gun at her head. He called her a "bitch" and said, "I heard everything you was saying. Do you know I will kill you?" Ms. Steptoe turned her head and tried to explain herself; then, the appellant left the room. Grabbing her car keys, Ms. Steptoe ran to the corner and drove her car to a nearby convenience store to call the police. The entire incident lasted only one or two minutes.

The appellant was arrested and charged with the offense of deadly conduct. During the jury trial that followed, Ms. Steptoe and the police detective who investigated the case were the only witnesses to testify.

Jury Charge

In his first point of error, the appellant contends he was denied due process of law when the trial court failed to charge the jury on the law of presumptions pursuant to section 2.05 of the Texas Penal Code. In addressing the appellant's contentions, we first determine whether the jury charge contained error and then consider whether sufficient harm resulted to require reversal. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc).

Section 2.05(2) of the Texas Penal Code, entitled "Presumption", provides:

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Tex. Pen. Code Ann. § 2.05(2) (Vernon 1994).

The offense of deadly conduct includes a presumption. Deadly conduct occurs when a person "recklessly engages in conduct that places another in imminent danger of serious bodily injury." Tex. Pen. Code Ann. § 22.05(a) (Vernon 1994). "Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded." Tex. Pen. Code Ann. § 22.05(c) (Vernon 1994). Therefore, when a trial court includes a section 22.05(c) instruction on a presumed fact in the jury charge, the Texas legislature requires the trial court to include a section 2.05(2) instruction.

Additionally, both the United States and Texas Constitutions also require the trial court to include a section 2.05(2) instruction when including a section 22.05(c) instruction on a presumed fact; without a section 2.05(2) instruction, the section 22.05(c) instruction would contain a mandatory presumption. Mandatory presumptions are unconstitutional. See Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990) (en banc).

A mandatory presumption compels the jury to find an essential element of the offense upon proof of a basic fact unless the accused presents evidence to rebut the presumption. See Regalado v. State, 872 S.W.2d 7, 10 (Tex. App. Houston [14th Dist.] 1994, pet. ref'd). If the state proves the predicative facts, charges containing conclusive or rebuttable presumptions lessen the state's burden of proof in violation of due process by either removing the presumed element from the case entirely or impermissibly shifting the burden to the defendant. See, e.g., Francis v. Franklin, 471 U.S. 307, 317 & 325 (1985) (finding jury instruction violated due process when it created a mandatory rebuttable presumption shifting the burden of proof to the defendant and did not, as a whole, explain or cure this error); Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979) (finding jury instruction violated due process when it included a presumption that lessened the state's burden to prove the essential elements of the case beyond a reasonable doubt). Charges which include phrases such as "are presumed" or "the law presumes" create mandatory presumptions. See Francis, 471 U.S. at 316; Sandstrom, 442 U.S. at 532-24. Section 22.05(c) creates a mandatory presumption because it states "recklessness and danger are presumed. . . ."

By contrast, permissive presumptions are generally constitutional. See Willis, 790 S.W.2d at 310. Permissive presumptions allow, but do not require, the jury to infer the element from the predicative facts. See id. To transform mandatory presumptions into permissive presumptions and thereby pass constitutional muster, the legislature enacted Texas Penal Code section 2.05. See id. Consequently, when a trial court gives a section 22.05(c) instruction on a presumed fact, failure to include a section 2.05 instruction gives rise to both statutory and constitutional error.

In this case, the trial court instructed the jury on the presumptions in section 22.05(c) but did not instruct the jury on the effect of the presumption as mandated by section 2.05(2). Specifically, the jury charge read:

Our law provides that a person commits the offense of Deadly Conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

(emphasis added). Because this charge created a mandatory presumption, the trial court committed both statutory and constitutional error by omitting a section 2.05(2) instruction. However, the appellant did not object to the error.

Generally, to preserve error, a party must object. See Tex. R. App. P. 33.1(a). The Court of Criminal Appeals carved out an exception to this general rule for jury charge error in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (en banc) (op. on reh'g). In interpreting Article 36.19 of the Texas Code of Criminal Procedure, which governs review of the jury charge on appeal, the Almanza court held that if the defendant does not object to error in the jury charge, he must show the error was fundamental in order to complain about it on appeal. 686 S.W.2d at 171. Fundamental error in the jury charge is error that is so egregious and causes such harm as to deprive the accused of a fair and impartial trial. See Taylor v. State, 7 S.W.3d 732, 736 (Tex. App. Houston [14th Dist.] 1999, no pet.) (citing Almanza, 686 S.W.2d at 171).

As a threshold matter, we must consider whether the error in this case is error to which Almanza applies. Jury charge error is defined in Article 36.19 as the disregarding of various statutory provisions, namely Articles 36.14-36.18. Article 36.14 requires the trial judge to deliver a charge setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 1981). Having already determined that section 2.05 is a required instruction given the other law on which the jury was instructed, we find that the trial court's failure to include this instruction disregards Article 36.14 and thus is jury charge error. Before determining whether this error is fundamental, i.e., caused egregious harm, we address the state's contention that the appellant waived his claim of jury charge error.

Waiver of Jury Charge Error

The state contends the appellant waived his claim of fundamental error by affirmatively approving the jury charge. In making this argument, the state cites several recent cases in which various courts of appeals have held that a defendant can waive his right to complain about a fundamental error in the jury charge by affirmatively approving the charge in the lower court. See Ly v. State, 943 S.W.2d 218 (Tex. App. Houston [1st Dist.] 1997, pet. ref'd); Reyes v. State, 934 S.W.2d 819 (Tex. App. Houston [1st Dist.] 1996, pet. ref'd); McCray v. State, 861 S.W.2d 405 (Tex. App. Dallas 1993, no pet.). This court followed suit in McCain v. State, 995 S.W.2d 229 (Tex. App. Houston [14th Dist.] 1999, pet. ref'd, untimely filed). These cases, however, appear to contradict Almanza, which rejected the waiver argument fifteen years ago.

We are unpersuaded by the state's waiver by "affirmative approval" argument for three reasons. First, it cannot withstand a careful reading of Almanza. Second, the cases that have accepted this waiver argument are not consistent with our reading of Almanza or, in the...