Madrid v. State

595 S.W.2d 106, 1979 Tex. Crim. App. LEXIS 1844

• Court: Court of Criminal Appeals of Texas
• Decided: October 31, 1979
• Docket: 60116
• Status: Published

Opinions

OPINION

W. C. DAVIS, Judge.

Appeal follows a conviction for possession of heroin where punishment was enhanced by two prior felony convictions and assessed at life imprisonment. We affirm.

In his initial ground of error, appellant attacks both the validity and execution of the search warrant whereby police officers discovered the heroin. Appellant argues that the heroin seized pursuant to the search warrant should have been suppressed. However, after a hearing directed toward suppression, the trial court permitted the heroin to be introduced as evidence.-

In attacking the validity of the search warrant, appellant argues: (1) that the warrant does not “run in the name of ‘The State of Texas.’ ” Article 18.04(1), Vernon’s Ann.C.C.P. and (2) that the description of the place to be searched was general and ambiguous and is therefore unreasonable. Amendment Four, U.S.Const.; Article 18.04(2), Vernon’s Ann.C.C.P. With these propositions we cannot agree.

The face of the search warrant and affidavit of probable cause both set forth the authority of “The State of Texas” sufficiently to meet the requirements of Article 18.04(1), Vernon’s Ann.C.C.P.

Concerning the description of the place to be searched, we first note that the description in the probable cause affidavit controls the description in the search warrant. Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975). At least nine times in that affidavit the apartment at 4610 Alberta # 3 is listed. Such a listing of the address is sufficient, and specifically describes the place to be searched. Faulkner v. State, 537 S.W.2d 742 (Tex.Cr.App.1976). Appellant seems to suggest that since the confidential informant only observed heroin in two specific places in the apartment, then the warrant should be limited to a search of those two places.¹ In Riojas, supra, the probable cause affidavit stated the contraband was located in a shoe box; however, we held that a search of the entire residence was permitted under such circumstances. The same reasoning should and does apply here.

We also hold the execution of the search warrant was in compliance with Article 18.06(b), Vernon’s Ann.C.C.P. Testimony from the police officers who executed the warrant revealed that officers identified themselves and read the search warrant to several persons who were present. Appellant adduced testimony that conflicted with that of the police officers; however, we find no abuse of discretion in the trial court’s resolution of these conflicting testimonies in the suppression hearing.

Appellant’s second ground of error complains of the use of a 1954 conviction for enhancement purposes. Appellant claims that his guilty plea in the 1954 conviction could not be used for enhancement because the records in that case did not show a waiver of the right to counsel. There was no sworn testimony concerning the 1954 conviction; however, the record contains the docket sheet of the trial court in the 1954 cause which shows appellant to have been represented by counsel. The “form” judgment and sentence in the 1954 cause do not recite that appellant waived counsel; however, with the docket sheet a presumption of regularity arises and appellant failed to overcome that presumption. Allison v. State, 479 S.W.2d 674 (Tex.Cr.App.1972).

In his third ground of error appellant urges error by the action of the trial court in failing to grant a mistrial. Six different issues are discussed under this one ground of error and thus, this ground of error is multifarious. Article 40.09(9), Vernon’s Ann.C.C.P.; Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). Further, none of the issues requires review in the interest of justice.

Appellant’s final ground of error directs us to his insanity defense and the “presumption of sanity.” Appellant timely gave notice that his defense to the charge of possession of heroin would be insanity. The appellant’s psychiatrist stated he had not examined appellant and thus, could not express an opinion on mental defects. The alleged error arose when the prosecutor was permitted to argue concerning the burden of proof on the issue of insanity as follows:

“MR. ELLIS (PROSECUTOR): * * * Remember that the defendant was and is presumed to be sane until you say definitely by your verdict. And I don’t have the slightest burden in the world imposed on me in that respect. Now how did the defendant—

MR. CABALLERO (APPELLANT’S ATTORNEY): Judge, I object to any mention of presumptions, those presumptions have vanished at the point I submitted evidence of insanity and my burden is only to prove insanity by a preponderance of the evidence. * * * It is an improper remark and not the law.

THE COURT: I will refer the ladies and gentlemen of the jury to the charge, and overrule your objection.

MR. ELLIS: Look in the charge. The defendant must prove an affirmative defense by the preponderance of the evidence. Why does the defendant have to prove something, if it is not the case, because it is presumed to be the other way around.

MR. CABALLERO: Judge, I object to that. There is not a word presumption in the charge anywhere. That presumption is not given to the jury and I object to counsel arguing about a presumption that no longer exists.

THE COURT: I will refer the jury to the charge and overrule your objection.

MR. ELLIS: Let me draw an analogy that I am sure Mr. Caballero won’t quarrel with. The presumption of innocence, the defendant is presumed to be innocent until the State proves him guilty.

MR. CABALLERO: Judge, I object to that. The presumption of innocence is in the charge and the presumption of insanity is not. That is improper argument.

THE COURT: Overruled, sir.”

Further light is shed on the position of the parties and the trial court by the following:

“MR. CABALLERO: I don’t want any mention that he is presumed sane because that is not the case, he is presumed sane until I put some evidence in and you submit the issue to the jury and then the presumption is gone.

MR. ELLIS: Your Honor, the State takes issue with the last statement of counsel.

THE COURT: I will reconsider. I don’t think it is improper argument. It is not different from where you say a defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt. * * *

MR. CABALLERO: The presumption of innocence remains with the person, whereas the presumption of insanity does not.

THE COURT: I think it does until overcome by a preponderance of the evidence.

MR. CABALLERO: Once you submit the issue to the jury you have already made that determination and it is in issue.

THE COURT: We are just talking about words of argument as I understand it, I see no reason to prohibit the State from stating that in his summation of the case if he so wishes.”

The term presumption is misused almost as often as it is used. This misuse is discussed in McCormick on Evidence, 2d edition, sec. 342 at 802, as follows:

“One ventures that ‘presumption’ is the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof.’ One author has listed no less than eight senses in which the term has been used by the courts.” Citing Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich.L.Rev. 195, 196-207 (1953).

This verbal confusion is compounded by the general guidance afforded by 1 Texas Practice, McCormick and Ray, Evidence, 75, sec. 57:

“The Presumption of Sanity, like many other so-called presumptions, serves only to guide the trial court in locating the burden of proof at a particular time.”

Thus, the problem presented involves the two most misused and perhaps misunderstood terms in the legal vocabulary. Resolving the confusion is the task presented squarely by this record.

As with any legal issue, the first step toward resolution must be a definition of terms. Black’s Law Dictionary, revised fourth edition, defines presumption as:

“A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference be disproved.”

McCormick’s on Evidence, 2nd edition, sec. 342 at 803 defines presumption as:

“A standardized practice, under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts.”

These two sources defined the “true presumption” and clearly require proof of certain facts from which another fact may be inferred. In other words, “true presumption” describes the situation wherein proof of fact A permits an inference as to the existence of fact B. The example that readily comes to mind is the presumption of intoxication used in connection with the administration of a chemical breath test. If the defendant registers a blood-alcohol content of .010% or greater on the “breathalyzer” instrument, then he is presumed intoxicated. Here, the results of the test, having been established (fact A), the legal inference is that the defendant is intoxicated (fact B).

A “true presumption” serves minimally to shift the burden of producing evidence from one party to another in civil cases. The party against whom the presumption operates in a civil cause of action must produce rebuttal evidence or risk a preemptory ruling or instruction from the trial court. A “true presumption” cannot have this effect in a criminal case. No amount of evidence produced by the State can force the defendant to produce evidence or suffer an instructed verdict. Such a rule flies in the face of a defendant’s constitutional right to remain silent and have the State prove his guilt. By example, if the State adduces evidence that a defendant registered .012% on a chemical breath test, the defendant has no obligation or burden to produce evidence. The effect of “true presumptions” in criminal cases is that the jury may accept or reject the presumption of fact even in the face of no contrary evidence. See McCormick on Evidence, 2nd edition, sec. 342, et seq. Therefore, the procedural effect of a “true presumption” differs in civil and criminal causes and the reasoning of one area may not be applicable to the other.

The criminal law is complicated by the terms “presumption of innocence” and “presumption of sanity,” neither being a true presumption as defined above. The so-called presumption of innocence is not an inference based on proven fact; rather, it is an assignment of a burden of proof prior to trial based on the substantive law requiring the State to prove guilt beyond a reasonable doubt. The presumption of innocence enters the courtroom with the defendant in each case. Its existence does not depend upon proof of a fact; rather, it is a “shorthand” substitute for substantive criminal law.

Likewise, the presumption of sanity is not a true presumption at all. It is not an inference drawn from facts adduced but, rather, it is a rule of substantive law.

“An example of such a rule of law mislabeled a presumption is the ‘presumption of sanity’ as it operates against the defendant in a criminal case. The so-called presumption is simply a rule stating that the defendant has the burden of producing evidence (or of proving) his sanity at the time of the offense. The use of the term presumption is only confusing.” (Emphasis added) McCormick on Evidence, 2nd edition, sec. 346 at 830.

Therefore, the “presumption of sanity” is merely a rule fixing the burden of persuasion and is a correlative of the affirmative defense of insanity.

This rather lengthy discussion has been necessitated by the arguments and objections made by appellant’s counsel to the argument of the prosecutor on the “presumption of sanity.” Those objections treat the presumption of sanity as a true presumption. As before stated, the presumption of sanity is not a true presumption at all; rather, it is a substantive rule of law. Therefore, appellant’s arguments and objections are of little benefit.

The controlling issue, and one of first impression in this jurisdiction, according to my research, is the effect of evidence of insanity on the presumption of sanity. Once the appellant has introduced some evidence of insanity, does the “presumption of sanity” vanish or may the jury consider the presumption in conjunction with the evidence adduced? The answer to this question is best derived by first examining the nature of the defense of insanity.

By statute, insanity is an affirmative defense, V.T.C.A. Penal Code, Sec. 8.01(a). Affirmative defenses are also controlled by statute. V.T.C.A. Penal Code, Sec. 2.04 provides:

“(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.

(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.”

See also Art. 46.03, V.A.C.C.P. The practice commentary following V.T.C.A. Penal Code, Sec. 2.04 is also illuminating:

“Although there are constitutional due process limitations on the imposition of a burden of proof on a criminal defendant, Morrison v. People of State of California, 54 S.Ct. 281, 291 U.S. 82, 78 L.Ed. 664 (1934), the imposition is justified in a few situations, e. g., Leland v. Oregon, 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659 (1952). “Two of the procedural and evidentiary consequences of an affirmative defense are the same as those of a defense: state need not negate the defense in the accusation, Subsection (b), and there must be evidence in the case to warrant submitting the defense to the jury. Subsection (c).”

On the issue of insanity then, the appellant has both the burden to produce and the burden to persuade by a preponderance. Once the appellant has accepted these burdens and adduced evidence, then sanity becomes an issue. However, it does not follow that by making sanity an issue of proof, the appellant has shifted any burden of persuasion to the State.

Further, the “presumption of sanity” does not disappear when a defendant raises the insanity defense. Being a substantive rule of law, this “presumption” is available for jury consideration and may be accepted or rejected by the jury. The Supreme Court wrote on this issue:

“If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced . . .” (Emphasis added) Davis v. U. S., 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); accord, Howard v. U. S., 232 F.2d 274 (5th Cir. 1956); Lee v. U. S., 91 F.2d 326 at 330-331 (5th Cir. 1937).

The “presumption of sanity,” therefore, is available as a substantive rule of law for jury consideration. It may support a conviction without supportive evidence from the State and it stands for consideration by the jury in all cases, even in the face of attempts by the appellant to inject the defense of insanity. Davis, supra.

Therefore, in the present case, the prosecutor’s argument on the presumption of sanity was correct. The State has no burden on that issue. Insanity is an affirmative defense which must be established by a preponderance by the appellant. These arguments being proper, ground of error four is overruled.

The judgment is affirmed.

1 . The informant in the probable cause affidavit relates to having seen heroin in the kitchen of the apartment and further stated that a female occupant of the apartment carried heroin in her bra.