Hall v. State

• Decision Date: 19 October 1983
• Docket Number: No. 1037-82,1037-82
• Citation: 661 S.W.2d 101
• Parties: Robert Alan HALL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 101

661 S.W.2d 101

Robert Alan HALL, Appellant, v. The STATE of Texas, Appellee.

No. 1037-82.

Court of Criminal Appeals of Texas En Banc.

Oct. 19, 1983.

Leonard M. Roth, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft and Judy Polise, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

V.T.C.A. Penal Code, § 43.23(c)(1) provides that a person commits an offense if, knowing its content and character, he possesses with intent to promote any obscene device. Charged inter alia on the presumptions prescribed by § 43.23(e) and (f), respectively, a jury found appellant guilty of possessing with intent to promote an obscene device, namely, twenty nine dildos, knowing the content and character of the device. The Houston (1st) Court of Appeals reversed the judgment of conviction, finding the statutory presumptions are facially unconstitutional because violative of the First, Fifth and Fourteenth Amendments to the Constitution of the United States, but concluding:

"Without the presumptions created by the 43.23(e) and (f) there was sufficient evidence to convict the appellant under the valid sections of 43.23. However, the court's charge on the effect of 43.23(e) and (f) constitutes reversible error, and the judgment of the trial court is therefore reversed and the cause remanded."

Hall v. State, 646 S.W.2d 489 (Tex.App.--Houston (1st), 1982).

In its petition for discretionary review the sole ground presented by the State is that the court of appeals erred in holding that the trial court's jury charge on the presumptions of § 43.23(e) and (f) constituted reversible error because the statutory presumptions are facially unconstitutional. We granted leave to file the petition for review February 16, 1983, in order to consider the ground asserted by the State along with several other causes that seemed similarly situated: e.g., Skinner v. State, 647 S.W.2d 686 (Tex.App.--Houston (1st) 1982), and Davis v. State, (Tex.App.--Waco, No. 10-81-119-CR, delivered July 8, 1982). Later developments now dictate that we reverse the judgment of the Houston (1st) Court of Appeals in this cause.

We reversed the judgment in Skinner on insufficient evidence to convict, finding that "regardless of the applicability of the presumption stated in subsection 43.23(e), no rational trier of fact could have found appellant guilty beyond a reasonable doubt ...," Skinner v. State, 652 S.W.2d 773 (Tex.Cr.App.1983). On the other hand we reversed the judgment of the Waco Court of Appeals in Davis v. State, finding inter alia that "the presumption provided by Sec. 43.23(e) must fall," Davis v. State, 658 S.W.2d 572 (Tex.Cr.App., 1983) and have this day denied State's motion for rehearing with written opinion.

In the instant cause we conclude that the error found by the court of appeals in the charge to the jury with respect to the presumptions is not reversible error, for the court also found, and we agree, that even without application of the presumptions the evidence was sufficient to convict appellant. Thus, we need not, and do not, reach the holding that § 43.23(f), as well as § 43.23(e), is unconstitutional. Skinner v. State, supra, at 776.

The judgment of the court of appeals is reversed and the judgment of conviction in the trial court is affirmed.

TEAGUE, Judge, concurring. ¹

Robert Alan Hall, appellant, was charged by complaint and information with possessing with intent to promote obscene devices, namely, 29 dildos. ² The jury found appellant guilty and the trial court assessed a $350 fine as punishment. Appellant appealed his conviction to the First Court of Appeals, which reversed. See Hall v. State 646 S.W.2d 489 (Tex.App.--Houston [1st] 1982).

The Legislature of this State has proscribed possession of an obscene device, if such is possessed with intent to promote. See Sec. 43.23(c)(1). ³ A dildo is included in the statutory definition of an "obscene device." Sec. 43.21(a)(7). ⁴ If a person possesses 6 or more dildos, he is presumed to possess them with intent to promote. See Sec. 43.23(f). ⁵ Also see Sec. 43.23(e). ⁶

The majority reaches the correct result in this cause. However, it takes the wrong approach in considering why the Court of Appeals reversed the trial court. The majority appears to treat the issue before this Court as one dependent on whether the error is harmless. In doing so, it has completely overlooked the substance of what the Court of Appeals had held in its opinion. I will explain.

In reversing appellant's conviction, the Court of Appeals relied upon its decision of Skinner v. State, 647 S.W.2d 686 (Tex.App.--Houston [1st] 1983), aff'd Skinner v. State, 652 S.W.2d 773 (Tex.Cr.App.1983), which had held that Sec. 43.23(e), supra, is facially unconstitutional.

In this cause, it expanded that holding and held that Sec. 43.23(f), supra, is also facially unconstitutional, and then held that because the trial court had included in its instructions to the jury the provisions of subsections (e) and (f), this rendered the charge to the jury defective.

This Court, in its decision of Skinner v. State, Id., affirmed the judgment of the Court of Appeals without discussing the validity of subsection (e). Our sole holding was that the evidence was insufficient as a matter of constitutional law. Furthermore, this Court expressly stated the following: "To the extent that the Court of Appeals ordered appellant's conviction reversed for any reason other than what we have given, its decision is overruled." 652 S.W.2d at page 777.

Because of what we stated in Skinner, the reasons the Court of Appeals gave for reversing appellant's conviction are no longer correct. This Court therefore granted the State's petition for discretionary review to review the decision of the Court of Appeals, and decide the merits of appellant's substantive contentions.

The majority, however, in disposing of the State's petition for discretionary review, appears to have taken a "short cut" to reach the correct result. Although it reaches the correct result, I am afraid the questions that will soon be asked will make the route it took look like it took "a long road to China to get to Houston."

The Court of Appeals expressly held that the possession for sale of the 29 dildos in this cause was protected by the First Amendment to the Federal Constitution or by like provisions of the Texas Constitution. ⁷ Such, however, were not protected by either.

Had the dildos been constitutionally protected, then arguably appellant's cause would be governed by our decision of Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983) (State's Motion for Rehearing Denied, October 19, 1983), in which we discussed the issue whether the presumption provided by subsection (e) could be applied where a First Amendment right outside the privacy of one's home was implicated, and held that subsection (e) could not be used to obtain criminal convictions in those instances where a First Amendment right outside the home was implicated. However, it did not in Davis hold that if no First Amendment was implicated then "the presumption provided by Sec. 43.23(e) must fall," as the majority appears to imply.

Because no First Amendment right is implicated in this cause, I believe that the correctness of the Court of Appeals' opinion rests upon whether the presumptions provided by subsections (e) and (f), as applied in this cause, can be construed as (1) constituting mandatory presumptions, (2) having no rational connection between the fact proved and the ultimate fact presumed, or (3) that the inference of the one fact from proof of the other is arbitrary because of a lack of connection between the two in common experience. I would hold for the reasons about to be stated that the presumptions, as applied in this cause, are not unconstitutional.

Presumptions, in criminal jurisprudential parlance, are usually said to be either mandatory or permissive. The distinction between the two is usually seen in the respective effect each has. A permissive presumption allows, but does not require, the trier of fact to infer the elemental or ultimate fact from the proof offered. It places no burden on the accused. A mandatory presumption, on the other hand, directs that the elemental or ultimate fact must be found upon proof of the basic fact, unless the accused presents evidence to rebut the presumption.

A mandatory presumption is per se violative of the due process rights of the accused, because it impermissibly shifts the burden of proof from the prosecution to the appellant. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Also see Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 S.Ct. 1519 (1942); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

However, even a permissible presumption may be in violation of the accused's due process rights if there is no rational connection between the fact proved and the ultimate fact presumed, or if the inference of the one from proof of the other is arbitrary because of a lack of connection between the two in common experience. Tot v. United States, supra. Also see C.T. McCormick, "The Validity of Statutory Presumptions of Crime under the Federal Constitution," 22 Tex.L.Rev. 75 (1943).

I agree with appellant that subsections (e) and (f), supra, if applied standing alone, arguably could be construed as mandatory presumptions, and thus violative of appellant's due process rights. However, in this instance, they were not applied in mandatory or irrebuttable fashion. Furthermore, in this instance, I find there...