Willis v. State, 155-87

• Citation: 790 S.W.2d 307
• Decision Date: 16 May 1990
• Docket Number: No. 155-87,155-87
• Parties: Barry O'Neal WILLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 307

790 S.W.2d 307

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

No. 155-87.

Court of Criminal Appeals of Texas,

En Banc.

May 16, 1990.

Charles Tessmer, Dallas, for appellant.

John Vance, Dist. Atty., and Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S AND THE STATE'S PETITIONS FOR

DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury found appellant, Barry O'Neal Willis, guilty of theft for which he received a sentence of two years confinement. He appealed. The Dallas Court of Appeals reversed appellant's conviction finding that the trial court had erred in refusing to submit in its jury charge an instruction concerning appellant's good faith purchase. Willis v. State, 724 S.W.2d 87, 91 (Tex.App.-Dallas 1986). The lower appellate court also decided that the statutory presumption provided in Texas Penal Code Section 31.03(c)(3) was constitutional. 724 S.W.2d at 88-90. The State sought discretionary review of the Court of Appeals' holding that appellant was entitled to the jury instruction and appellant sought discretionary review from the holding that the presumption was constitutional. We granted both petitions and now affirm in part, reverse in part, and remand the case to the Court of Appeals.

THE CONSTITUTIONALITY OF TEXAS PENAL CODE, SECTION 31.03(c)(3)

Section 31.03(a) of the Texas Penal Code provides that a person commits an offense if he "unlawfully appropriates property with the intent to deprive the owner of the property." Section 31.03(b)(2) provides that "appropriation of property is unlawful if ... the property is stolen and the actor appropriates the property knowing that it was stolen by another." Further, Section 31.03(c)(3) creates an evidentiary presumption and provides that:

"[A]n 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 the stolen property ... that the property has been previously stolen from another if the actor pays or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly: (A) fails to record the name, address and physical description or identification number of the seller or pledger; (B) fails to record a complete description of the property including the serial number, if reasonably available, of other identifying characteristics; or (C) fails to obtain a signed warranty from the seller or pledger that the seller or pledger 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 (sic) requirements."

After the evidence was presented in the guilt/innocence phase of trial, the trial court instructed the jury regarding the 31.03(c)(3) presumption and, pursuant to V.T.C.A., Penal Code, Section 2.05, the trial court further instructed that:

"The facts giving rise to such presumption must be proven beyond a reasonable doubt.

"If such facts are proven beyond a reasonable doubt, you may find that the property in question ... had been previously stolen, if it had been, but you are not bound to so find.

"Even if you find that the defendant knew that the property in question ... had been previously stolen, the State must prove beyond a reasonable doubt each of the elements of the offense, as set out on the following page, and if you have a doubt as to the existence of a fact or facts, as set out above, giving rise to such presumption, the presumption fails and you will not consider it for any purpose."

Appellant insists that the presumption is unconstitutional regardless of the trial court's application of Section 2.05. He relies upon Bellamy v. State, 742 S.W.2d 677 (Tex.Cr.App.1987), wherein we held that the 31.03(c)(3) presumption, as applied in that case, was unconstitutional. As applied in the case that is before us today, however, we agree with the Court of Appeals and find that the presumption is constitutional for the following reasons.

Presumptions and inferences are evidentiary devices and in criminal law parlance they are said to be either mandatory or permissive. The distinction between a mandatory presumption and a permissive presumption is determined by the effect that each has upon the evidence. The Supreme Court, in Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), explained:

"Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime--that is an 'ultimate' or 'elemental' fact--from the existence of one or more 'evidentiary' or 'basic' facts. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular elemental facts involved an on the degree to which device curtails the factfinder's freedom to assess the evidence independently." 442 U.S. at 156, 99 S.Ct. at 2224 (citations omitted).

Essentially, there are two types of mandatory presumptions: one type requires the fact finder to find an elemental fact upon proof of a particular predicate fact or facts--it does not allow the trier of fact to find otherwise (a "conclusive presumption"). The other type of mandatory presumption requires the accused to disprove the elemental fact once the predicate fact has been established (a "rebuttable presumption"). Both types of mandatory presumptions are deemed unconstitutional because they eliminate the State's constitutionally required burden of proving guilt beyond a reasonable doubt. See Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curium); Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Justice Scalia recently opined that:

"The [Supreme] Court has disapproved the use of mandatory conclusive presumptions not merely because it conflicts with the overriding presumption of innocence with which the law endows the accused, but also because it invades the factfinding function which in a criminal case the law assigns solely to the jury. The constitutional right to a jury trial embodies a profound judgment about the way in which law should be enforced and justice administered. It is a structural guarantee that reflects a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over life and liberty of the citizens to one judge or group of judges. A defendant may assuredly insist upon observance of this guarantee even when the evidence is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State." Carella v. California, 491 U.S. 263, ----, 109 S.Ct. 2419, 2421-22, 105 L.Ed.2d 218 (1989) (citations omitted) (Scalia, J., concurring).

Unlike the mandatory presumption, the permissive presumption allows, but does not require, the trier of fact to infer the elemental fact or ultimate fact from the predicate evidentiary fact or facts. It places no burden on the accused to refute or disprove the elemental fact once the predicate facts have been established. Since it does not relieve the State's burden of proving guilt beyond a reasonable doubt, a permissive presumption is generally deemed constitutional if the reviewing court determines that a rational trier of fact could make the connection permitted by the presumption. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

"[T]o specify the procedural consequences of a presumption [and] to satisfy ... constitutional strictures," the Legislature has enacted V.T.C.A. Penal Code, Section 2.05. See Searcy and Patterson, Practice Commentary, V.T.C.A. Penal Code, Section 2.05. Section 2.05 provides:

"When this code or another law establishes a presumption with respect to any fact, it has the following consequences:

"(1) if there is sufficient evidence of the facts giving rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

"(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 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, or any other element of the offense charged, it shall acquit the defendant and say by its verdict not guilty."

As long as Section 2.05 is adequately incorporated into the court's charge containing a presumption, that presumption will be construed to be "permissive." Bellamy, 742 S.W.2d at 682. See also Ray, Texas Law of Evidence, Section 58 at 94 (Tex.Practice 3rd Ed.1980).

Appellant does not contest the incorporation of Section 2.05 into the charge in this case, noting in his brief that "...