finding egregious harm even though the prosecutor told the jury during closing arguments that the presumption was “not binding upon the jury”; reasoning, “While it is true that the prosecutor did not devote an inordinate portion of her final argument to the presumption, she did reread it and commend its use to the jury”
How later courts described this case
- finding egregious harm even though the prosecutor told the jury during closing arguments that the presumption was “not binding upon the jury”; reasoning, “While it is true that the prosecutor did not devote an inordinate portion of her final argument to the presumption, she did reread it and commend its use to the jury”
- finding egregious harm from the lack of a § 2.05(a)(2) instruction where the presumed fact—appellant’s knowledge that the property received was stolen—was the “sole contested issue,” there was conflicting testimony on the issue, and the prosecutor mentioned the presumption to the jury
- explaining that 9 no “rebuttable presumption” arises and opposing party has no burden to disprove anything until “predicate fact has been shown”
- finding egregious harm even though evidence of the predicate fact was “undisputed”; evidence of the presumed fact was not overwhelming and it was “the sole contested issue” at trial
Written by the judges who cited it.
The opinion
MILLER, Judge,
concurring.
I join the majority opinion, writing only to point out that the court’s charge in this ease did not contain an instruction mandated by V.T.C.A., Penal Code, § 2.05. Thus, in my view, the court’s charge in the instant case instructed the jury that the presumption at bar was mandatory. See Bellamy v. State (Tex.Cr.App.1987), slip op. at 11-13.
The majority opinion faults the court’s presumption charge because it “never clearly informed the' jury that it was free to reject the presumption”. Id., slip op. at 12. Conceding for a moment- that the Sec. 31.-03(c)(3) V.A.P.C. presumption as worded falls somewhere between confusing and “utter nonsense”, id., I find that the clear mandate of § 2.05, supra, that:
“the court shall charge the jury, in terms of the presumption and the specific element to which it applies” (emphasis supplied).
was virtually totally ignored by the trial judge.
It is important to note that nowhere in the charge, except in that portion quoted by the majority, is the statutory presumption provided for in Sec. 2.05, supra, alluded to. Even a form instruction containing § 2.05 as written in the Penal Code is absent. 1 The presence of such a form instruction may not alone save a charge that is otherwise mandatory in its wording, but would have been an important factor to consider when, as here, a confusing and arguably ambiguous (taken as a whole) presumption charge is submitted to the jury.
TEAGUE, and CAMPBELL, JJ., join.
. Such an instruction does not comply with the above quoted mandate of § 2.05, but it would be better than nothing.