Willis v. State

724 S.W.2d 87, 1986 Tex. App. LEXIS 9441

• Court: Court of Appeals of Texas
• Decided: December 30, 1986
• Docket: 05-85-00569-CR
• Status: Published

Opinions

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 Land-rum 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:

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(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 Land-rum 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 between the facts of this case and the presumption. Id. For the same reasons, the instructions were not a comment on the weight of evidence. We note that the concurring opinion addresses the issue of another defect in the charge in relationship to the presumption. This issue is not addressed in the majority opinion because it was not raised by appellant. Accordingly, we overrule this ground of error.

Appellant next contends that the trial court erred in refusing to grant a jury instruction on his defense of a good faith purchase. We agree. At trial appellant requested the following instruction:

There is evidence in this case that the defendant, Barry O’Neal Willis bought the property in question in good faith and had no knowledge that it had been stolen by Dean Landrum at the time he received it.

The trial court correctly refused this instruction because it constitutes an impermissible comment on the weight of evidence. It is an affirmative statement that there is evidence proving a disputed fact (i.e., that appellant purchased the goods in good faith). Andrews v. State, 652 S.W.2d 370, 374 (Tex.Crim.App.1983). Since the jury charge is given by the judge, there is a significant risk that the jury would interpret the above statement as an instruction for acquittal. The jury, however, is the exclusive judge of the facts and any instruction which interferes with the jury’s function is properly refused. Id.

Appellant argues however, that even if his requested issue on his good faith purchase was defective, he was still entitled to his defensive issue because: (1) the issue of his good faith purchase defense was properly raised by his own testimony and (2) his requested issue was sufficient to call the court’s attention to the necessity of including the defense in the charge. We agree.

At trial, appellant admitted he purchased goods from Drake, but denied any knowledge of the stolen nature of the property and knowledge of the burglaries. He testified that he would not buy anything if he thought the items were stolen. This testimony alone is sufficient to raise the issue of a good faith purchase. Knowles v. State, 672 S.W.2d 478, 480 (Tex.Crim.App.1984).

Secondly, the submission of the good faith defensive issue, though defective, was sufficient to call the court’s attention to the need to charge on the issue. Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982). Thus the error of its omission is preserved for our review. Id.

A good faith purchase defense is not required to be included in the charge when the defendant denies any participation in the crime (i.e. the defendant denies stealing the car and contends that he purchased it in good faith). Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986). However, when a defendant acknowledges participation in the offense, his good faith purchase defense is not just a denial of the crime. It is a defense which justifies his conduct in the same manner as an affirmative defense and must be included in the charge. Id. at 81 n. 3. In the instant case, appellant admits buying goods from Landrum, but denies knowing the goods were stolen. Thus, his good faith purchase defense which was raised by the evidence and requested to be included in the charge was erroneously omitted by the trial court. We, therefore, sustain this ground of error, and accordingly, reverse and remand this cause to the trial court for a new trial.

Reversed and remanded.

1 . All references are to the Texas Penal Code unless otherwise indicated.