Comment

Scattered throughout the Texas Penal Code are various presumptions that may help the state prove its case, as distinguished from those that may benefit the defense (see, e.g., Tex. Penal Code § 9.32(b)). One must be careful that presumptions that favor the state may raise constitutional issues.

Texas Penal Code section 22.05(c) provides that in a prosecution for deadly conduct, the elements of recklessness and danger are “presumed” if the defendant knowingly points a firearm at or in the direction of another, whether or not the defendant believed the firearm was loaded. Tex. Penal Code § 22.05(c). Similarly, section 31.03(c)(3) establishes a presumption that a defendant knows he is in possession of stolen property once one or more predicate facts are proven. Tex. Penal Code § 31.03(c)(3). See also Tex. Penal Code § 28.03(c)(3) (presumption that person who receives “economic benefit” of a public service has committed forbidden conduct), § 22.02(c) (presumption that defendant knew person assaulted was a public servant or security officer if person was wearing “distinctive uniform” or badge).

These presumptions effectively explain to a jury how it may consider certain evidence, and, as such, are an exception to the general rule in article 36.14 of the Texas Code of Criminal Procedure that the trial court may not single out certain evidence. See Tex. Code Crim. Proc. art. 36.14. Although presumptions may be useful to a jury, in drafting instructions on them the Committee has been mindful of four considerations.

First, and most important, trial courts must be very careful to avoid mandatory presumptions. As the Supreme Court noted in Sandstrom v. Montana, 442 U.S. 510, 517 (1979), the dictionary definition of “presume” is “to suppose to be true without proof” (emphasis added). But since the Due Process Clause requires the prosecution to prove every element of its case, an instruction mandating that the jury find against a defendant as to an element is forbidden. Sandstrom, 442 U.S. at 525 (instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” unconstitutional). Even if the trial court instructs the jury that a presumption of this sort “may be rebutted,” the instruction still violates the requirements of due process. Francis v. Franklin, 471 U.S. 307, 316 (1985).

The second danger in instructing juries on presumptions is that the trial court may fail to give the instruction set out in section 2.05(a)(2) of the Penal Code, required for all presumptions that favor the state. That provision requires that the jury be told that “the facts giving rise to the presumption must be proven beyond a reasonable doubt” and that even 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 is not bound to so find.” Tex. Penal Code § 2.05(a)(2)(A)(B) (emphasis added). Section 2.05 also directs the jury to disregard the presumption if it has a reasonable doubt as to the facts giving rise to the presumption. And finally, the judge is to remind the jury that even if it finds the element subject to the presumption has been proven, the state must prove all the other elements of the offense beyond a reasonable doubt. Tex. Penal Code § 2.05(a)(2)(C)(D).

Section 2.05 essentially turns what look like mandatory presumptions into permissive inferences, which are generally permissible. The jury is told that it may infer the element in question from the predicate fact or facts, but that it is not required to do so. As the Supreme Court said in Francis, “a mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain facts,” while a permissive inference “suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but it does not require the jury to draw that conclusion.” Francis, 471 U.S. at 314 (emphasis added).

If the trial court ignores section 2.05 and simply instructs the jury in the language of the applicable Penal Code provision, reversible error is likely if the defendant objects. Even without an objection, the instruction may be deemed to have caused “egregious” harm, at least when the element “proven” by the presumption was contested at trial. See, e.g., Hollander v. State, 414 S.W.3d 746 (Tex. Crim. App. 2013) (in prosecution for tampering with metering device, trial court instructed jury using language in Tex. Penal Code § 28.03(c); egregious harm because court did not instruct jury that state had to show predicate fact—that defendant received “economic benefit”—beyond a reasonable doubt, as required by section 2.05(a)(2)).

Most courts appear to charge the jury only in the language of section 2.05(a)(2). The Committee believes, however, that if the jury is instructed it may “presume” something, there is still a danger that the jury may give too much weight to the word “presume,” even though it is told it need not do so. The sample jury instructions at CPJC 22.7, CPJC 22.24, and CPJC 31.6 represent the Committee’s attempt to draft an instruction without any possible taint of a mandatory instruction.

Third, trial judges should be alert to the possibility that, in a given case, even a permissive instruction may be unconstitutional. In Leary v. United States, 395 U.S. 6, 36 (1969), the Supreme Court held that a presumption would violate the Due Process Clause unless the “presumed fact” was “more likely than not to flow from the proved fact on which it is made to depend.” The court found that it was error to instruct the jury that if it found Leary possessed marijuana, it could infer he knew that it had been imported illegally. Leary, 395 U.S. at 52–53.

In accord with the reasoning of Leary, the Dallas court of appeals found that the section 28.03(c) presumption was unconstitutional as applied in Gersh v. State, 714 S.W.2d 80 (Tex. App.—Dallas 1986), pet. ref’d, 738 S.W.2d. 287 (Tex. Crim. App. 1987) (finding that Dallas court “reached the correct result for the correct reasons”). In Gersh the only evidence to show that the defendant had tampered with a gas meter was the statutory presumption. Gersh, 714 S.W.2d at 81. The court pointed out, however, that just because the gas bill came to him, it did not follow that he did the tampering. His wife, for example, received the same benefits and thus had the same motive. Gersh, 714 S.W.2d at 82. A trial court, then, should never take it for granted that a permissive inference instruction will necessarily show that, more likely than not, the presumed fact flows from the predicate fact. See also Tot v. United States, 319 U.S. 463 (1943) (presumption that person convicted of a crime of violence and in possession of a firearm received that firearm in interstate or foreign commerce held unconstitutional).

Fourth, what of presumptions that are not provided for in the Penal Code? In Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003), a capital murder case, the defendant admitted he had killed the deceased but denied that he had the intent to kill him. Over objection, the trial court instructed the jury, “Intent or knowledge may be inferred by acts done or words spoken.” Brown, 122 S.W.3d at 796. Writing for the court of criminal appeals, Judge Cochran observed that this presumption was not a statutory one, rather a judicial review device for assessing the sufficiency of the evidence, and “not an explicit legal tool for the jury.” Brown, 122 S.W.3d at 802–03. Accordingly, the court held that it was an improper comment on the evidence, in violation of article 36.14. Brown, 122 S.W.3d at 798–801.

The error in Brown was deemed harmless, however, and the court appears to have rejected, at least for the time being, a bright-line rule disapproving of instructions on presumptions not named in the Penal Code. Brown, 122 S.W.3d at 802 n.40.

This product provides instructions for a few presumptions found in the Texas Penal Code. The requirements for each presumption are specific to the Code section that creates it; however the instructions may be used as models for instructions on other presumptions.