Chapter 22
Assaultive Offenses
22.25 Instruction—Deadly Conduct—Presumption of Danger and Recklessness
[Insert instructions for underlying offense.]
Presumption of Danger and Recklessness
The law provides for a presumption that you may wish to apply in this case. This presumption can apply only if you find the state has proved, beyond a reasonable doubt, that the defendant knowingly pointed a firearm (regardless of whether he believed the firearm to be loaded) at or in the direction of another person.
If you find the state has proved, beyond a reasonable doubt, that the defendant knowingly pointed a firearm at or in the direction of another person, then you may infer from this fact either (1) the other person was placed in imminent danger of serious bodily injury or (2) the defendant was reckless, or both. You are not, however, required to infer or find either or both of these things even if you find that the defendant knowingly pointed a firearm at or in the direction of another person.
If you have a reasonable doubt whether the defendant knowingly pointed a firearm at or in the direction of another person, the presumption does not arise or apply. In that case, you will not consider this presumption for any purpose.
If you conclude you cannot apply the presumption or you choose not to apply it, you must still consider whether—without reference to the presumption—the evidence proves beyond a reasonable doubt that (1) the victim was placed in imminent danger of serious bodily injury and (2) the defendant was reckless.
If you apply this presumption, you may conclude that the state has proved danger and recklessness. If you do decide to apply the presumption to show the state has proved danger and recklessness, you must still find, beyond a reasonable doubt, that the state has proved that (1) the defendant engaged in the conduct alleged and (2) this conduct caused the complainant to be placed in danger.
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Constitutionality of Applying Presumption. The presumption appears to be applicable in all cases in which the jury could find the triggering facts. Nevertheless, some Committee members believe that trial judges need to be alert to the possibility that as applied in a particular case, the presumption may be unconstitutional.
A statutory permissive presumption applied in a criminal prosecution is irrational and hence unconstitutional unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. Leary v. United States, 395 U.S. 6, 36 (1969). See Bellamy, 742 S.W.2d at 685 (presumption in section 31.03(c)(3) was unconstitutional as applied in case); Gersh v. State, 714 S.W.2d 80, 82 (Tex. App.—Dallas 1986) (presumption in section 28.03(c) was unconstitutionally applied in case), pet. ref’d, 738 S.W.2d 287 (Tex. Crim. App. 1987) (“[W]e have reviewed the record and agree with the Court of Appeals opinion. We believe that they reached the correct result for the correct reasons.”).
Before including the presumption, trial judges must address whether recklessness and danger can be said with substantial assurance to flow more likely than not from proof that the defendant knowingly pointed a firearm at or in the direction of another. This might not be the case if the firearm was in fact not loaded, the defendant believed the firearm to be not loaded, or both.
In some situations, the presumption might be constitutionally applied to assist the jury in deciding either recklessness or danger, but not both.
Comment
Instructing on Presumption. The above instruction attempts to set out the presumption in Texas Penal Code section 22.05(c) in light of the effect on the remainder of section 22.05.
This instruction goes considerably beyond existing practice, which seems to be to simply give the jury the substance of section 2.05 in virtually the language of the statute. Bellamy v. State, 742 S.W.2d 677, 686 & n.1 (Tex. Crim. App. 1987) (Miller, J., joined by Teague and Campbell, J.J., concurring) (“[A] form instruction containing § 2.05 as written in the Penal Code . . . does not comply with the . . . mandate of § 2.05, but it would be better than nothing.”).
A major question in phrasing the instruction is whether to explicitly tell the jury that the presumed fact is in fact “presumed.” If the drafter believes this should be done, the approach used in Naranjo v. State, 217 S.W.3d 560, 569 (Tex. App.—San Antonio 2006, no pet.) (concerning a different statutory presumption), could be used to redraft the “application” portion of the instruction somewhat as follows:
If you find the state has proved, beyond a reasonable doubt, that the defendant knowingly pointed a firearm at or in the direction of another person, then you may infer from this fact that it is presumed, and you may find either or both that (1) the victim was placed in imminent danger of serious bodily injury and (2) the defendant was reckless. You are not, however, required to infer or find either or both of these things from the fact that the defendant pointed a firearm at or in the direction of another person.
Section 2.05 does direct that the jury is to be instructed “in terms of the presumption . . . as follows . . . .” Tex. Penal Code § 2.05(a)(2). Given the phraseology of what follows this command, however, the statute can reasonably be read as not making mandatory the use of the phrase “is presumed.”
Arguably, use of such terminology is likely to increase the risk that the jury will construe the instruction as directing or at least permitting what the case law terms a “mandatory presumption.”
An instruction under section 2.05 is probably essential to the constitutionality of application of the presumption in section 22.05(c). See Neely v. State, 193 S.W.3d 685, 687 (Tex. App.—Waco 2006, no pet.) (instruction on section 22.05(c) told jury to apply an unconstitutional mandatory presumption, where the instruction did not include the substance of section 2.05(a)(2)).
The instruction offers an additional statement making clear to the jury that it need not find the defendant not guilty if it concludes it cannot or should not apply the presumption. In that event, it should decide whether without reference to any presumption the state has proved the elements that could be “presumed” if the presumption applied.