Shawn Alexander GREEN, Appellant, v. The STATE of Texas, Appellee.
No. 1197-91
Court of Criminal Appeals of Texas, En Banc.
Feb. 22, 1995.
891 S.W.2d 536 (Tex. Crim. App. 1995)
Tim Curry, Dist. Atty., C. Chris Marshall and Lisa C. McMinn, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.
Appellant was convicted before the trial court for criminal mischief and assessed a fine of $250. See
Because the appellant challenged the sufficiency of evidence at both stages of trial, a brief review of the facts is necessary. The State presented evidence at trial that showed that someone diverted electrical energy from an outlet owned by the homeowners’ association at the town house complex where appellant lived by running an extension cord from that outlet to appellant‘s individual town home, without the permission of the homeowners’ association. The electrical service at the town home was in appellant‘s name, as was the lease to the town home.
The State relied on
On appeal, the Court of Appeals found, and the State acknowledged, that the presumption was unconstitutional as applied to appellant. See Gersh v. State, 714 S.W.2d 80 (Tex.App.—Dallas 1986), pet. ref‘d, 738 S.W.2d 287 (Tex.Cr.App.1987). The State claimed that its reliance on the unconstitutional presumption was trial error, and as such required reversal and remand to the trial court for a new trial. The Court of Appeals disagreed, and instead concluded that the evidence presented at trial, without the presumption, was insufficient to support the conviction. The Court of Appeals re-
In its only ground for review, the State claims its reliance on the presumption was trial error, and that the Court of Appeals should have remanded the case for a new trial, rather than reforming the verdict to reflect an acquittal. The State contends the Court of Appeals erred in excluding the improper presumption from its analysis of the sufficiency of the evidence. The State argues that there is conflicting authority from this Court on the proper remedy when a presumption is held invalid and therefore sufficiency of the evidence supporting a conviction is challenged.
When evidentiary sufficiency is challenged, the evidence is reviewed by the appellate court in the light most favorable to the prosecution. Skinner v. State, 652 S.W.2d 773, 776 (Tex.Cr.App.1983). It is well settled that the reviewing court must consider all evidence presented at trial, including evidence that was improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988); see Roeder v. State, 688 S.W.2d 856, 859-60 (Tex. Cr.App.), cert. denied, 474 U.S. 988, 106 S.Ct. 396, 88 L.Ed.2d 349 (1985). The incorrect receipt or rejection of evidence is considered a trial error, and the State should be allowed to retry the appellant if it chooses. See Burks v. United States, 437 U.S. 1, 14-15, 98 S.Ct. 2141, 2148-49, 57 L.Ed.2d 1 (1978); see also Greene v. Massey, 437 U.S. 19, 25-26, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978); Messer v. State, 729 S.W.2d 694, 697 (Tex.Cr. App.1987). It is also well settled that if, considering all the evidence (including the improperly admitted evidence) before the trial court, the appellate court determines that the evidence is insufficient to support a conviction, the proper procedure is to reverse and order the judgment reformed to reflect an acquittal. Burks, 437 U.S. at 18, 98 S.Ct. at 2150; Messer, 729 S.W.2d at 697.
The State relies on several cases where the use of an improper presumption at trial resulted on appeal in reversal and remand for retrial. Gersh; Gonzales v. State, 676 S.W.2d 437 (Tex.App. — Houston [1st Dist.] 1984), pet. ref‘d, 689 S.W.2d 231 (Tex.Cr.App. 1985); Shealy v. State, 675 S.W.2d 215 (Tex. Cr.App.1984). In Gersh, a case addressing the same presumption at issue in the instant case, the Dallas Court of Appeals held that “[t]he proper procedure when the Court holds a presumption invalid is to remand the cause to the trial court.” Gersh, 714 S.W.2d at 82. This Court, in refusing the State‘s petition for discretionary review, stated, “[w]e believe that [the Court of Appeals] reached the correct result for the correct reasons.” Gersh, 738 S.W.2d at 287.
The Fort Worth Court of Appeals, in ordering reformation of the judgment to reflect acquittal, relied only on our decision in Davis v. State, 658 S.W.2d 572 (Tex. Cr.App.1983). Davis also involved a constitutionally defective presumption, and on appeal in that case, this Court reversed the conviction and ordered acquittal. For the reasons stated below, we hold the Court of Appeals misapplied Davis to this case.
In Davis, the defendant was found guilty at trial of promoting obscenity and the judgment was affirmed by the Waco Court of Appeals. At trial, the State relied on a presumption in
The State in the instant case did not fail to prove beyond a reasonable doubt the facts necessary to raise the presumption it relied on at trial. Under
Since the evidence was sufficient to establish the facts necessary to raise the presumption, and since the presumption was unconstitutional as applied to appellant, the reliance on the presumption was trial error, and the correct procedure on appeal is to reverse the conviction and remand to the trial court for a new trial. We therefore vacate that portion of the Court of Appeals’ judgment ordering acquittal, and remand the case to the trial court for retrial.
OVERSTREET, J., dissents.
MEYERS, J., not participating.
BAIRD, Judge, concurring.
The issue is whether an acquittal or a retrial is appropriate when a conviction is based on the fact finder‘s use of an unconstitutional statutory presumption. The issue stems from Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983), where we held the statutory presumption of
I.
A.
The plurality erroneously concludes we ordered an acquittal in Davis because, regardless of its constitutionality, the State “failed to establish the facts necessary to invoke the presumption.” Ante, p. 539. As the dissent correctly notes, Davis was not premised on insufficient proof to raise the presumption. Post, pp. 542-543. Rather, we assumed the evidence was sufficient, Davis, 658 S.W.2d at 578, and held, in essence, the presumption was facially unconstitutional:
We are aware of the usual rules governing statutory presumptions. However, we believe that because the statutory presumption in this instance is applicable to a First Amendment right that this makes the usual rules governing construction of presumptions inapplicable to this cause. Our research has yet to reveal a single instance where a statutory presumption, such as this one, which could infringe upon the freedoms of speech or press, has, standing alone, ever survived constitutional challenge or muster....
Because the plurality opinion is premised on a misreading of Davis, I am unable to join that opinion.
B.
The dissent‘s reliance on Davis is equally erroneous because the portion of Davis that ordered an acquittal was sub silentio overruled by Gersh v. State, 714 S.W.2d 80 (Tex. App.—Dallas 1986), pet. ref‘d, 738 S.W.2d 287 (Tex.Cr.App.1987).1 In Gersh, the Court of Appeals held the statutory presumption in
In this case, however, we have reviewed the record and agree with the Court of Appeals opinion. We believe that they reached the correct result for the correct reasons in deciding this issue.
The dissent argues that our opinion in Gersh is not controlling because a refusal of discretionary review has no precedential value under Sheffield v. State, 650 S.W.2d 813, 813 (Tex.Cr.App.1983). Post, p. 544, n. 6. This conclusion is erroneous because Sheffield is limited to summary refusals of petitions for discretionary review and opinions refusing the petitions which disavow the reasoning employed by the courts of appeals.2 Sheffield is not implicated in situations like Gersh, where we adopt the reasoning and rationale of the Court of Appeals. The dissent errs in failing to recognize this distinction. Gersh sub silentio overruled that portion of Davis requiring an acquittal.
II.
A.
Moreover, treating this type of error as trial error is consistent with our treatment of inadmissible evidence when conducting a sufficiency review. If the sufficiency of the evidence is challenged following a jury trial, appellate courts consider all of the evidence presented whether properly or improperly admitted. Rodriguez v. State, 819 S.W.2d 871 (Tex.Cr.App.1991). See also, Fuller v. State, 827 S.W.2d 919, 931 (Tex.Cr.App.1992); Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Cr.App.1991); Chambers v. State, 805 S.W.2d 459, 460 (Tex.Cr.App.1991); Livingston v. State, 739 S.W.2d 311, 329 (Tex. Cr.App.1987); and, Dunn v. State, 721 S.W.2d 325, 327 (Tex.Cr.App.1986). Our review is the same when the sufficiency of the evidence is challenged following a trial before the court. Gipson v. State, 844 S.W.2d 738 (Tex.Cr.App. 1992).
If, after considering all of the evidence, we find the evidence sufficient, that point of error is overruled. Rodriguez, 819 S.W.2d at 871. If we subsequently find a portion of the evidence was inadmissible, we determine whether the improperly admitted evidence contributed to the verdict.
In the setting of an unconstitutional presumption, the fact finder is entitled to rely on the presumption,
B.
In this case, appellant waived a jury and his trial was before the court. During its closing argument, the State encouraged the trial judge to rely upon the unconstitutional presumption. Further, the Court of Appeals determined the evidence, absent the pre-
With these comments, I join only the judgment of the Court.
CLINTON, Judge, dissenting.
The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy.”1 The United States Supreme Court, and this Court, have long held that the Double Jeopardy Clause bars the retrial of a person who has been acquitted because of insufficient evidence. See, e.g., Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983). Because the plurality today misinterprets Davis and ignores the crucial distinction between trial error and insufficiency of the evidence, I respectfully dissent.
I.
The plurality opinion accurately recites the facts and the procedural history of the case sub judice. Shawn Alexander Green was convicted of violating
We granted discretionary review to answer the following question: “When the State relies on a statutory presumption in order to prove identity and the presumption is unconstitutional as applied, is the proper remedy to reverse and remand for trial error or to reverse and order an acquittal if the evidence of identity, without the presumption, is insufficient?” State‘s Petition at 2.
In ordering an acquittal, the court of appeals relied on our opinion in Davis, supra. This Court, in vacating the court of appeals’ judgment and remanding for a new trial, ignores the clear meaning of Davis by finding that after “careful perusal of the entire opinion, it is apparent that the ground for reversal and acquittal (in Davis) is not the insufficiency of the evidence sans the unconstitutionally applied presumption, but rather the insufficiency of the rest of the State‘s case to prove the facts necessary to invoke the presumption in the first place.” Majority op. at 538. This is a gross misreading of Davis, one which allows the plurality to blur the distinction between an appeal based upon trial error and one based upon insufficiency of the evidence.
The plurality‘s “careful perusal” notwithstanding, Davis was in fact grounded upon “insufficiency of the evidence sans the unconstitutionally applied presumption.” In Davis, the appellant was charged with violating
Trial was to the court on stipulated evidence. Davis, supra, at 574. The stipulation provided that an undercover Houston vice officer, one G.P. Hugo, had viewed an obscene film, “Little Yummy,” in a quarter-operated “peep show” at an adult book store where the defendant was employed. The defendant made change for the officer, but “had nothing whatsoever to do with activating or operating the projector” for the film. Id., at 575. This Court found the stipulated evidence insufficient to support Davis’ conviction, holding that “[t]he State had the burden to establish that appellant ‘exhibited’ the film entitled ‘Little Yummy’ to Hugo, and in doing so he knew the character and content of the film.” Id., at 576 (emphasis in the original).
Our analysis in Davis involved two elements of the obscenity statute: 1) exhibition of the film; and 2) knowledge of its character and content. Id. The plurality misreads Davis to find it based on an absence of the exhibition element; it was, instead, based on an insufficiency of the evidence to support the knowledge element. This is clear from the plain language of Davis:
“[I]t becomes readily apparent to us that the only way one could conclude that appellant had knowledge of the character and content of the film entitled ‘Little Yummy,’ which is a necessary element of the offense of exhibiting obscene material to another, is through the presumption contained in
subsection 43.23(e) , which presumption appellant claims is unconstitutional, facially and as applied to this cause.”
Because of a split in the courts of appeals, we undertook in Davis to “discuss and decide the validity of the presumption.” Id. After a recitation of the applicable federal First Amendment law, we declared that “the presumption provided by
“Closely read, in conjunction with the offense itself, the presumption actually creates or makes the offense of promotion of obscenity a strict criminal liability offense, as to knowledge of the content and character of the material.... Appellant‘s guilty ‘knowledge’ of the character and content of the film has been supplied through the presumption, by the mere fact of exhibiting the film to Hugo, assuming arguendo that appellant did ‘exhibit’ the film to Hugo.”
Id. (emphasis added).
This flies in the face of the plurality‘s declaration today that the State, in Davis, “failed to establish the facts necessary to invoke the presumption, i.e., proof that the appellant had exhibited the film, thereby promoting it.” Majority op. at 538. To the contrary, we expressly stated in Davis that “it is not necessary to make the determination whether appellant actually ‘exhibited’ the film,” Davis, 658 S.W.2d at 580, because we had assumed exhibition, arguendo, in order to address the validity of the presumption, id., at 578.
Davis, then, is fully applicable to the instant case. As in Davis, the appellant below was convicted on the basis of an unconstitutional presumption. Without that presumption, there is insufficient evidence to support his conviction. We held in Davis that, absent the unconstitutional presumption, the proof was insufficient to support a conviction, and that Davis was “entitled to an acquittal.” Id., at 580. We must likewise order an acquittal here, or else overrule Davis.
That, of course, is what the State has asked us to do,5 but what the plurality avoids by its unconvincing attempt to distinguish Davis.
III.
The State‘s argument changed little on the trip from the court of appeals to this Court. It urges this Court to find that reliance on an invalid presumption “is tantamount to the use of inadmissible evidence” and that “even improperly admitted evidence is considered in determining evidentiary sufficiency.” State‘s Brief on Petition for Discretionary Review at 6. The State, unlike the plurality, recognizes that this is in direct opposition to our holding in Davis. It asks us to overrule Davis as inconsistent with both (A) our own subsequent decisions, and (B) United States Supreme Court opinions on the proper review of sufficiency of the evidence. I will address the State‘s contentions seriatim.
The first part of the State‘s argument is grounded shakily in three cases: Shealy v. State, 675 S.W.2d 215 (Tex. Cr.App.1984); Gersh v. State, 714 S.W.2d 80 (Tex.App.—Dallas 1986), pet. ref‘d, 738 S.W.2d 287 (Tex. Cr.App.1987); and Gonzales v. State, 676 S.W.2d 437 (Tex. App.—Houston [1st] 1984), pet. ref‘d, 689 S.W.2d 231 (Tex.Cr.App.1985).
In Shealy, as in Davis, this Court affirmed a court of appeals decision to reverse an obscenity conviction because of the unconstitutional presumption in
Shealy, therefore, is not in conflict with Davis. Instead, it is in accord with an entire line of post-Davis cases in which the remedy after reversal depended upon the posture on appeal (none of which is cited by the State). See Leu v. State, 663 S.W.2d 456, 457 (Tex. Cr.App.1984) (reversing and acquitting based on Davis); Hoyle v. State, 672 S.W.2d 233, 234-35 (Tex.Cr.App.1984) (reversing and remanding based on Davis and Shealy because of error in the trial court‘s charge, which resulted because of an instruction to the jury on the presumption); Galen v. State, 672 S.W.2d 235, 236 (Tex.App.—Houston [14th] 1983), pet. ref‘d (reversing and acquitting under Davis); Burch v. State, 695 S.W.2d 264, 265-66 (Tex.App.—Houston [1st] 1985) (evidence insufficient; reversed and acquitted under Davis), pet. ref‘d, 712 S.W.2d 163 (Tex.Cr.App.1986); Knighton v. State, 666 S.W.2d 386, 388-90 (Tex.App.—Houston [1st] 1984), pet. ref‘d (evidence insufficient absent presumption; reversed and acquitted under Davis); Carr v. State, 658 S.W.2d 653, 654 (Tex.App. — Houston [14th] 1983, no pet.) (same).
Instead of explaining how its argument
Gersh likewise is of no support to the State, although perhaps less obviously so. In Gersh, the court of appeals declared invalid the same statutory presumption at issue here today, overruled the appellant‘s “no evidence point,” and remanded for a new trial. Gersh, 714 S.W.2d at 82. In refusing discretionary review, this Court issued what amounts to a brief advisory opinion, writing that “we have reviewed the record and agree with the Court of Appeals opinion [and] believe that they reached the correct result for the correct reason in deciding this issue.” Gersh, 738 S.W.2d at 287 (emphasis added). The State argues that this “opinion” refusing review “indicates a full and complete approval of the Court of Appeals’ opinion, including the holding that the case should be remanded for a new trial.” State‘s Brief on Petition for Discretionary Review at 4. That argument is without merit.
It is unclear what precedential value, if any, an “opinion” refusing discretionary review has,6 but, whatever its value, it is misapplied here. Our “opinion” in Gersh, on its face, declares that the court of appeals “reached the correct result ... in deciding this issue.” Gersh, 738 S.W.2d at 287 (emphasis added). “This issue“—the “one ground of review“—was whether “the presumption provided in the text (sic)
B.
The State‘s federal law argument is less well developed. In essence the State simply contends that the holding it urges is in accord with the applicable precedent from the United States Supreme Court. I disagree. The State cites three Supreme Court cases as supporting its argument: Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). We thoroughly analyzed both Burks and Greene in Messer v. State, 729 S.W.2d 694 (Tex.Cr.App.1987) (opinion on rehearing), and further review is not warranted here. Suffice it to say, Burks first recognized the difference between trial error and insufficiency of the evidence, and Greene, which was decided by the Supreme Court on the same day, applied that holding through the Fourteenth Amendment to the states. Nelson, which is the most recent Supreme Court case to address this issue, reaffirmed the holdings in Burks and Greene. Nelson, 488 U.S. at 39, 109 S.Ct. at 290, 102 L.Ed.2d at 272-73. It also decided a question expressly reserved in Greene, viz: whether both properly and improperly admitted evidence should be considered by a reviewing court in determining the sufficiency of the evidence on appeal. Id. The Court decided that question in the affirmative. Id.
Nelson, et al., bring us to the crux of the State‘s argument, which the plurality ignores in its haste to distinguish Davis, viz: 1) that under Nelson both improperly and properly admitted evidence must be considered in a sufficiency review; and 2) that the presumption used below amounts to improperly admitted evidence that, thus, must be considered. As the State put it: “Since the evidence, including that supplied by the presumption, was sufficient to support the conviction, the State may retry Appellant if it chooses.” State‘s Brief on Petition for Discretionary Review at 6.
The State, however, ignores one simple fact: a presumption is not evidence nor does it “supply” evidence. To the contrary, a
Here the State conceded, and the court of appeals found, that the statutory presumption was invalid. Outside the context of the First Amendment, as in Davis, a presumption that takes the form of a permissive inference7 is constitutionally invalid “only if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.” Ulster County, 442 U.S. at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 792.8 That being the case, it does not matter whether the facts are sufficient to invoke the presumption. Under Ulster County a presumption is only invalid when, after considering all the evidence, the inference purportedly supplied by the presumption is nevertheless irrational. This necessarily means that when an appellate court declares a permissive presumption invalid, unless there is other evidence from which the element purportedly supplied by the presumption may be otherwise rationally inferred beyond a reasonable doubt, it has essentially found the evidence to be insufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).9
In Nelson the Supreme Court observed:
“The basis for the Burks exception to the general rule that reversal on appeal results in remand for new trials is that a reversal for insufficiency of the evidence should be treated no differently than a trial court‘s granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a motion considers all of the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court.”
488 U.S. at 41-42, 109 S.Ct. at 291, 102 L.Ed.2d at 274. In the instant cause the court of appeals considered the “same quantum of evidence” that the trial court did. The court of appeals did not refuse to take into account in its sufficiency analysis evidence admitted as a result of trial error. Instead, it considered the same evidence as the trial court, and found it insufficient. That that evidence may have been sufficient to invoke the § 28.03(c) presumption does not make a whit of difference if the inference underlying the presumption is not a rational one. The court of appeals in this case found no other evidence to prove beyond a reasonable doubt the element the presumption is aimed at.
Moreover, whether the trial court committed trial error in utilizing the presumption does not change the fact that the full “quantum of evidence” it relied upon to support the conviction was insufficient under Jackson v. Virginia, supra. Indeed, it is quite possible for evidence to be insufficient even considering that part which was admitted erroneously. For example, a trial court commits trial error when it admits hearsay evidence over objection. If that error is raised on appeal, and does not prove harmless beyond a reasonable doubt, the proper remedy is reversal and remand for new trial. Against a further claim that without that hearsay evidence there is insufficient evidence to support a conviction, the answer given by both the Supreme Court and this Court is that we do not conduct sufficiency analyses that way. Nelson, supra; Porier v. State, 662 S.W.2d 602, 605-06 (Tex.Cr.App.1984); Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980) (Roberts, J., concurring). But we have always entertained the claim that evidence is insufficient even considering hearsay admitted as a result of trial error, Collins, supra, at 540, and, sustaining such a claim, we have reversed and acquitted on authority of Burks and Greene.
Here the court of appeals accepted the State‘s concession that the trial court‘s reliance upon the § 28.03(c) presumption was trial error. But appellant did not merely claim “trial error,” and the court of appeals ruled that all of the evidence considered by the trial court was insufficient to support a conviction. Consistent with Burks and Greene, and, for that matter, Davis, the court of appeals had no alternative but to order entry of a judgment of acquittal.
I respectfully dissent.
MALONEY, J., joins this dissent.