Jones v. State

658 S.W.2d 594, 1983 Tex. Crim. App. LEXIS 1080

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellants were convicted of theft by receiving property stolen by another, V.T. C.A., Penal Code Sec. 31.03(b)(2). The Court of Appeals, in an unpublished opinion, reversed the conviction on a finding of fundamental error in the jury charge. We granted the State’s petition for discretionary review to consider that issue.

The State’s case at trial was based on the presumption provided by Sec. 31.03(c)(3) and (4), supra, which provide:

“(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 (other than a motor vehicle subject to Article 6687-1, Vernon’s Texas Civil Statutes) that the property has been previously stolen from another if the actor pays for or loans against the property $25 or more (or consideration of equivalent value) and the actor knowingly or recklessly:

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

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

“(4) for the purposes of Subparagraph (i) above, ‘identification number’ means driver’s license number, military identification number, identification certificate, or other official number capable of identifying an individual.”

The jury was instructed in the precise terms of the statutory presumption. The charge, however, did not instruct the jury on the restrictions regarding use of a statutory presumption, as provided in V.T.C.A., Penal Code Sec. 2.05. That section provides:

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

“(1) if there is sufficient evidence of the facts that give 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 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.”

The Court of Appeals found the charge fundamentally defective for charging on the presumption under Sec. 31.03(c), supra, without charging on the required matters of Sec. 2.05, supra. We agree.

In the recent case of Goswick v. State, 656 S.W.2d 68 (1983), we held a similar omission in a prosecution for driving while intoxicated, from a charge on the presumption of intoxication under Art. 67017-5, V.A. C.S., presented fundamental error. It was there pointed out that Sec. 2.05 mandates a charge on the rules regarding use of a presumption. The charge given, without the limitations of Sec. 2.05, constituted an unconstitutional shifting of the burden of proof.

The judgment of the Court of Appeals is affirmed.

MILLER and CAMPBELL, JJ., not participating.