Comment

In 2007, the legislature added presumptions to both sections 9.31(a) and 9.32(b) of the Texas Penal Code. These presumptions trigger section 2.05(b), specifying the procedural effect of a presumption favoring a criminal defendant. See Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011) (“If there is a conflict in the evidence on the relevant matters, then there may be a fact issue supporting the submission of the presumption 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.’”). Cf. Reyna v. State, 597 S.W.3d 604, 606–07 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (defendant was not entitled to have jury instructed in accordance with presumption because uncontradicted evidence showed that he was in possession of cocaine and thus engaged in criminal conduct at the time of the charged murder).

The court of criminal appeals has emphasized that, when charging the jury on this presumption, the jury should be instructed as to every element of the presumption that applies to the defendant. Elizondo v. State, 487 S.W.3d 185, 205–06 (Tex. Crim. App. 2016).

Drafting jury instructions implementing these presumptions poses unusual difficulties because these presumptions favor the party who does not have the burden of persuasion on the relevant issue. Generally, a presumption is used to ease the burden of persuasion placed on the party given the presumption.

Another problem is identifying what section 2.05(b) calls “the presumed fact.” Jury instructions on presumptions must, under section 2.05(b), identify and distinguish between (1) the facts giving rise to the presumption and (2) the presumed fact. Although section 2.05(b) is phrased in singular terms, most likely a presumption might provide for multiple facts to be presumed.

The “facts” that might be presumed include—

1. the defendant believed the force used was immediately necessary to protect the defendant against the injured person’s use or attempted use of unlawful force; or
2. the defendant’s belief was reasonable.

The specific terms of the statute suggest the only presumed fact is that the defendant’s belief was reasonable. The language concerning the presumption could have been phrased to include both the belief and its reasonableness (for example, “The actor is presumed to have acted in the reasonable belief that the force used was immediately necessary as described by this subsection if . . . . ”). In Lozano, the court of criminal appeals concluded that there is a presumption only with regard to the reasonableness of the belief and not the belief itself. Lozano v. State, 636 S.W.3d 25, 33 (Tex. Crim. App. 2021), reh’g denied (Jan. 12, 2022) (“By its own terms, the presumption applies under Section 9.32(b) only if the defendant first harbors a subjective belief that the use of deadly force was immediately necessary to defend himself from another’s use or attempted use of deadly force.”). The instruction at CPJC 9.10 is framed to so provide:

A portion of this instruction on the presumption has been cited with approval by the court of criminal appeals. Villarreal v. State, 453 S.W.3d 429, 435 (Tex. Crim. App. 2015).