Willis v. State

• Decision Date: 11 August 1986
• Docket Number: No. 05-85-00569-CR,05-85-00569-CR
• Parties: Barry O'Neal WILLIS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 87

724 S.W.2d 87

Barry O'Neal WILLIS, Appellant, v. STATE of Texas, Appellee.

No. 05-85-00569-CR.

Court of Appeals of Texas Dallas.

Aug. 11, 1986.

On Motion for Rehearing Dec. 30, 1986.

Rehearing Denied Dec. 31, 1986.

Charles W. Tessmer, Dallas, for appellant.

Elizabeth L. Phifer, Asst. Dist. Atty., Dallas, for appellee.

Before AKIN, VANCE and HOWELL, JJ.

VANCE, Justice.

Barry O'Neal Willis appeals his conviction of theft for which the court, after a jury trial, assessed punishment at two years' confinement. The court also assessed a fine of $5,000. Appellant, contends that: (1) Texas Penal Code, section 31.03(c)(3) is unconstitutional; and (2) the trial court erred in refusing to grant appellant's requested instruction on his good faith purchase defense. We agree with appellant's contention that the trial court erred in failing to give a charge on his affirmative defense of his good faith purchase. Accordingly, for the reasons stated below, we reverse and remand the cause for a new trial. Appellant presents other grounds of error which we need not address. However, because appellant's challenge to the constitutionality of the statute affects future proceedings in this cause, we will also address this ground of error.

The evidence, viewed in the light most favorable to the jury verdict, shows that appellant, then owner of a jewelry store, on eight occasions in October 1980, purchased items of jewelry and other valuables from Dean Landrum. Landrum, who was then fifteen years old and using the alias name of Dean Drake, stole the valuables during the commission of numerous residential burglaries and sold them to appellant. Although appellant recorded the transactions with Landrum, he never asked Landrum for identification, for a warranty of ownership, or for proof of from where the merchandise came. Once, appellant told Landrum to act as if he were a customer if anyone entered the store while he was there. Appellant also asked Landrum to bring him specific items such as a silver tea service. Victor Willis, appellant's son and former employee, participated in some of the transactions with Landrum.

On October 20, 1980, Landrum burglarized the home of Alice Baker, the complaining witness. Landrum stole a coin collection and jewelry from Baker and sold these items to appellant. After Landrum was arrested, appellant was indicted for third-degree felony theft. He was accused of violating section 31.03 of the Texas Penal Code. ¹ At trial, the evidence showed that appellant paid $1,600.00 for property actually worth $15,000. Appellant denies that he ever knew the merchandise was stolen and appeals his conviction.

Appellant contends that section 31.03(c)(3) is unconstitutional because it contains a presumption of law that violates his due process rights. In addition, appellant asserts that the trial court's instruction concerning the statutory presumption is likewise erroneous because it shifts the burden of proof to appellant and is a comment on the weight of evidence. We disagree.

The elements of the theft statute, section 31.03(b)(2), are: (1) a person, (2) with intent to deprive the owner, (3) appropriates property (4) which is stolen property (5) knowing it was stolen (6) by another. Franklin v. State, 659 S.W.2d 831, 833 (Tex.Crim.App.1983). Section 31.03(c)(3) creates a presumption that a person in the business of buying and selling used property has knowledge that the property is stolen if he pays twenty-five dollars or more and fails to maintain the required records.

Section 31.03(c)(3) provides:

(c) For purposes of subsection (b) of this section:

* * *

* * *

(3) an actor engaged in the business of buying and selling used or secondhand personal property or lending money on

the security of personal property deposited with him, is presumed to know upon receipt by the actor of stolen property ... that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more ... and the actor knowingly and recklessly:

(A) fails to record the name, address, and physical description or identification number of the seller or pledgor;

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

(C) fails to obtain a signed warranty from the seller or pledgor that the seller or pledgor has the right to possess the property. It is the express intent of this provision that the presumption arises unless the actor complies with each of the numbered requirements.

The evidence shows that, although appellant gave Landrum receipts for each transaction, he did not make the records the statute requires. However, section 31.03(c)(3) must be read in conjunction with section 2.05. Section 2.05(2)(B) provides that the trier of fact may find the presumed fact if the underlying facts are proven beyond a reasonable doubt, but is not required to do so. Both sections 31.03(c)(3) and section 2.05 were presented to the jury in the form of instructions in the charge. In summary, the presumption in section 31.03(c)(3), as presented to the jury, was permissive, not mandatory.

The constitutional standard for a permissive statutory presumption is found in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). The Court in Ulster set out the due process tests as follows:

When reviewing this [permissive presumption] device, the Court has required the party challenging it to demonstrate its invalidity as applied to him ...

Because this permissive presumption leaves the trier of fact free to ... reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.

Id. at 157, 99 S.Ct. at 2224-2225 (emphasis added). The court in Ulster further stated that the validity of a permissive presumption rests on the record of the case, not on the face of the statute itself. Id. at 163, 99 S.Ct. at 2227. The court specifically stated that a party has no standing to argue that a statute is unconstitutional if applied to others in hypothetical situations (except for statutes that prohibit speech protected by the First Amendment). Id. at 155, 99 S.Ct. at 2223. Instead, a party must show the unconstitutionality of the statute as applied to him.

As applied to the facts of this case, the presumption of appellant's knowledge that the goods were stolen is entirely rational. Appellant was a professional in the jewelry business, not an occasional buyer. Landrum was then only fifteen years old and brought into appellant's shop merchandise valued at fifteen thousand dollars. Landrum also used an alias name in selling to appellant. The fact that appellant never asked for identification when buying valuable items from a fifteen-year old stranger supports the inference that he knew the goods were stolen. A simple request for identification would have disclosed the falsity of the alias name. Furthermore, appellant never inquired as to Landrum's ownership or means of acquiring the valuables. Instead, appellant directed Landrum to bring the other items such as a silver tea service. Also, the fact that appellant paid $1,600 for property valued at $15,000 is another circumstance that implies appellant's knowledge of the stolen property. When one purchases property from a stranger at a price far below its actual value, "that factor is evidence to believe the property was stolen.:" Fillmore v. State, 647 S.W.2d 300, 304 (Tex.App.--Corpus Christi 1982, no pet.). Especially is this true in this case, when appellant, as a professional, knew the actual value of the items.

Under these circumstances, the jury was entirely reasonable in concluding that the failure of appellant to keep the records required by section 31.03(c)(3) was due to his knowledge that the property was stolen. The application of the statutory presumption comports with the standard laid down in Ulster because there is a "rational connection" between the basic facts that the prosecution adduced at trial and the ultimate fact presumed (appellant's knowledge that the property was stolen). Under the circumstances of this case, the fact presumed is "more likely than not to flow from" the evidence presented at trial. Ulster, 442 U.S. at 166, 99 S.Ct. at 2229. Thus, the constitutional tests are met.

Appellant, however, argues that his case is analogous to the statutory presumption of knowledge in obscenity cases which have been held unconstitutional. We disagree. Materials such as magazines are presumptively protected by the First Amendment to the Federal Constitution as well as by article 1, section 8 of the Texas Constitution. Shealy v. State, 675 S.W.2d 215, 216 (Tex.Crim.App.1984). Therefore, knowledge of the obscene nature of a magazine cannot be established solely by a statutory presumption. Id. at 217. However, jewelry, coins, and other valuables are not so protected. Consequently, we evaluate the permissive statutory presumption of knowledge that goods are stolen by the less stringent standard of Ulster.

Finally, appellant argues that the instructions to the charge on the statutory presumption shifted the burden of proof so that the state was not required to prove his guilt beyond a reasonable doubt, but appellant was required to produce evidence of his innocence. In addition, appellant argues that the presumption instructions constitute a comment on the weight of evidence. We disagree. Because the instructions in the charge informed the jury that it was free to ignore the presumption of knowledge, the burden of proof was not shifted from the State to appellant. Ulster, 442 U.S. at 157, 99 S.Ct. at 2225. The instructions also did not affect the "reasonable doubt" standard because there is a rational connection...