holding that a magazine found in the defendant’s bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female’s blouse, skirt, and underwear to touch her inappropriately
How later courts described this case
- holding that a magazine found in the defendant’s bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female’s blouse, skirt, and underwear to touch her inappropriately
- op. on reh = g
- on motion for rehearing
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(dissenting).
By the use of suspicion, speculation, and conjectures, the majority affirm their original opinion, when in truth and in fact the evidence is totally insufficient to uphold the verdict of the jury. The appellant, presumably because he was a public official, is now denied due process in this day and age when the whole governmental process both in this State and on the national scene, is under attack. This case has witnessed the trial court and now an appellate court refuse to abide by a fundamental principle of law — that all persons indicted for criminal offenses are presumed to be innocent until their guilt is established by competent evidence beyond a reasonable doubt. “It appears at the present time, at least, that when a public official has been accused of misconduct, he is expected to deny it or credence will be given to the charge.” Fowler v. State, Tex.Cr.App., 500 S.W.2d 643 (1973), dissenting opinion by Judge Douglas.
I am aware that at the, time a case reaches this Court there has been a finding of guilt and the presumption of innocence no longer prevails; it then becomes incumbent upon the accused to establish that the evidence is insufficient or that reversible error denied him a fair and just trial. This appellant has shown both — the evidence is insufficient and error was committed in the admission of the subsequent stamp requests. The opinion on rehearing seeks to justify the sufficiency on the grounds that there is a technical distinction, when the clear, cold record proves not the guilt, but the innocence of the defendant as charged in the indictment.
As to the admission of the subsequent stamp requests, the majority on rehearing attempt to bolster their position by declaring it to be circumstantial evidence, 1 i. e., to use the additional stamp and envelope requests to show system, scheme, design, etc. In truth, there is no showing by the State as to the number of envelopes appellant had on hand prior to the stamp requests. The record fails to support a conclusion that appellant stole anything from *439 the State or that he was found in possession of any stolen items. See Judge Odom’s opinion in Garrett v. State, Tex.Cr.App., 500 S.W.2d 531 (1973).
The majority opinion has now effectively reversed a rule of law and we can now state that in Texas, at least, a public official is presumed guilty and must prove his innocence beyond a reasonable doubt. In France and many other European countries, that is the rule of law. In America, such a rule has never before existed. Shall we apply a different standard of proof to public officials than we do to average citizens? Are we to abandon our system of criminal jurisprudence when this democracy was founded in order that we might escape just such tyrannical notions?
I vigorously dissent.
ONION, P. J., joins in this dissent.
. We note that the audit report of the State Auditor, as of August 31, 1972, on the Senate and House of Representatives of the State of Texas, at page thirty-five, contains the following :
“Note H: Net of $5,250.00 postage turned in by Representative Bynum, which we are informed was left with him as effects of the Office by his predecessor, former State Representative Walter L. Knapp, Jr.”
I further realize that this report is not a part of the record in this cause and cannot be considered by this Court. But it is indicative of what has been said by the dissent in this cause.