*1 trated in and Tex. supra, reaching Newton v. this seems a scripts,” footnote, relied on in the in- conclusion that is limited to the Jur.2d Lewis narrow volves the of of consist- of prior use evidence facts this cause. ent statements or the like. The use of the solace, were the In that I much for find transcript present- under the circumstances I majority practice the federal adopting case, as an having ed in this been identified competing would be to elucidate compelled by a accurate rendition of the conversation capsuled by the Court in Lewis views conversation, no in the is differ- participant 533, 535, (Tex.Cr. n. 1 testimony than that witness that the by ent Still, I even to the limit App.1975). dissent spoken by par- transcribed words were holding it to me that the ed since is clear conversation ticipants at the time of his jurors is for first to function the exercise awas appellant. appellant par- Since recordings of the or determine content conversation, in the it was not ticipant taped der conversations comprehend then prove rule to hearsay
violation to under they which otherwise were unable conversation.1 was evidence of Since it not stand toto. report some later about conversation partici- Moreover, that “was appellant bolstering evi- person, third was not, as the does pant in conversation” transcript not intro- dence. Since the was it, the conver- have remove majority would during jury duced and not available deliber- rule. There hearsay sations from ations, danger the jury there was no them, admitting well be a valid basis during having the evidence before them it. has not found majority but the deliberations in violation of Art. Y.A. respectfully dissent. Accordingly, I C.C.P., thereby being unduly influenced by it. J., TEAGUE, joins. presented in this Under the circumstances case we hold it was not error to overrule objection. bolstering
appellant’s Appeals the Court of
affirmed.
ONION, P.J., concurs in result. CLINTON, Judge, dissenting. & Theresa Lee JONES Seward authority majority The dearth of Jones, Appellant, a host of though provides opinion, State that federal courts says decisions it shows Texas, Appellee. The STATE permitted the use uniformly have “almost transcriptions as aids for No. 118-83. instructions proper cautionary when the Texas, Court of Criminal judge,” indi- given by have been the trial En Banc. joining not now that the Court is cates Rather, company. by 20, 1983. July overruling appellant’s court did not err in in “the objection” circumstances “bolstering case,”1 ad- in this
presented objection his
dressing at all other “subject interpretation are
tapes contained in the tran- interpretation throughout emphasis supplied hearsay objection 1. All There was not even a 1. opinion indi- unless otherwise writer cated. was set out above. trial. The trial *2 The case trial was State’s based presumption by 31.03(c)(3) provided Sec. (4), supra, and which provide: “(3) an actor in the business engaged of buying selling used or secondhand personal property, lending money on or security personal property deposit- him, presumed upon ed with know receipt by property the actor stolen (other subject than a vehicle motor 6687-1, Article Vernon’s Texas Civil Stat- utes) previous- has been property if ly stolen from another the actor pays for or loans against property or $25 (or more of equivalent consideration val- ue) and the knowingly recklessly: actor or “(i) name, address, fails to record or physical description identification number or pledgor; of the seller “(ii) complete descrip- fails to record including tion of the property, serial number, available, reasonably if or other characteristics; identifying or “(iii) a signed warranty fails to obtain from pledgor the seller or the seller right pledgor possess has the property. express It is the intent of this provision presumption arises un- less with the actor each of the complies requirements. numbered (on Thomas Berg appeal only), S. Hous- “(4) Subparagraph for the purposes ton, for appellant. (i) above, number’ ‘identification means number, driver’s identifi- military license Mapel, Jim Dist. and A.B. Atty. Crowth- certificate, Jr., number, er, cation identification Asst. Dist. Atty., Angleton, Robert Huttash, capable or other of identi- official number Walker, State’s Atty. and Alfred fying an individual.” Austin, Asst. State’s Atty., for the State. precise
The was instructed in the presumption. The statutory terms however, charge, did not instruct OPINION ON PETITION STATE’S FOR use of regarding restrictions a statu- REVIEW DISCRETIONARY V.T.C.A., tory presumption, as provided That pro- Penal Code 2.05. section Sec. ODOM, Judge. vides: were Appellants convicted theft penal “When this or another law code another, receiving property V.T. stolen respect establishes a presumption C.A., 31.03(b)(2). Penal Code Sec. fact, following conse- any it has the of Appeals, unpublished opin- in an quences: ion, reversed the on a finding conviction evidence of “(1) fundamental error in if there is sufficient jury charge. We presump- granted petition give State’s discretion- facts that rise tion, review to existence of the ary consider that issue. the issue of the McCORMICK, Judge, dissenting. fact must be submitted to presumed jury, court is satisfied that unless the following the lead of the majority, precludes a clearly evidence as a whole expands of Appeals, erroneously finding beyond a reasonable doubt in the court’s doctrine fundamental error fact; presumed charge. holding that fundamental error *3 “(2) presumed if the the existence of charged occurred when the trial court on V.T.C.A., to the the court the in Pe- jury, presumption provided fact is submitted Code, 31.03, on the nal but not the jury, in terms of Section charge shall the provided effect of such as presumption to specific and the element presumption Y.T.C.A., Code, 2.05, the ma- Penal Section as follows: applies, which errs jority regards: in two to the “(A) giving facts rise that the objection 1. The rule contemporaneous proven be beyond must a presumption ignored, doubt; reasonable prior holdings 2. Under the of “(B) facts be- proven that if such are Court, not to the level such does rise may jury a doubt the yond reasonable of fundamental error. find that the element of the offense exists, to but it is not sought presumed be injus- an only Not work does find; bound so case, its tice in the instant ramifications to well of this jurisprudence the State “(C) though jury may the that even abandon- catastrophic. today Is the Court element, find the existence of such the the rule? ing contemporaneous beyond must a reasonable prove state doubt each of the other elements rule is contemporaneous objection The charged; offense jurispru to the criminal applicable clearly com applies dence of this “(D) if has a doubt State jury reasonable magnitude that are of constitutional plaints or as to existence a fact facts State, 591 as well as ones. Carrillo v. lesser pre- rise giving presumption, to the Crocker v. (Tex.Cr.App.1979); S.W.2d 876 con- sumption fails and the shall not jury State, (Tex.Cr.App.1978); 190 573 S.W.2d any purpose.” sider the for presumption (Tex. State, 540 319 Bouchillion v. S.W.2d charge Appeals The Court of found the State, Rovinsky v. 605 Cr.App.1976); charging on fundamentally defective for (Tex.Cr.App.1980); 578 Romo v. S.W.2d 31.03(c), supra, presumption under Sec. (Tex.Cr.App.1979); State, 251 577 S.W.2d on the matters charging required without State, (Tex.Cr.App. 800 Bell v. 582 S.W.2d 2.05, agree. We supra. Sec. State, 697 1979); v. 617 S.W.2d Henderson State, v. recent case of Goswick v. 611 Dunavin (Tex.Cr.App.1981); similar 656 we held a (1983), S.W.2d 68 (a search (Tex.Cr.App.1981) 91 S.W.2d driving omission in while prosecution (Tex. 554 607 case); Nelson v. intoxicated, presump- charge from a on case); Boul search (another Cr.App.1980) 67017-5, V.A. tion intoxication under Art. (Tex.Cr.App. 677 ware C.S., It was presented fundamental error. Law Key Criminal 1976); Digest, Texas 2.05 mandates a pointed there out that Sec. 1036.1(3), 1036.1(4) and 1044.- 1035(a), Nos. use of regarding charge the rules 2(1). without charge given, The presumption. recently such a rule was propriety an constituted the limitations of Sec. Supreme the United States recognized by shifting the burden of unconstitutional 107, Isaac, 456 102 Engle U.S. proof. There, 1558, (1982). L.Ed.2d 783 71 S.Ct. of the Court court in- objection, the Ohio trial without affirmed. defendant had jury structed the of self- his defense proving burden of evidence. CAMPBELL, JJ., par- not by preponderance defense MILLER and thereafter held Supreme The Ohio ticipating. submitting such method of self-defense charge allegation omits an in the indict was erroneous placing improperly proved; ment which to be required Robinson, burden of proof. State when substitutes a charge (1976). Issac, Ohio St.2d 351 N.E.2d different theory completely of the offense who was convicted the Robinson prior indictment; in the from the theory alleged decision, sought federal habeas relief chal- (3)when authorized charge to lenging constitutionality of such in- theory alleged in the in- conviction structions. and on one more other theories dictment indictment; (4) when the alleged Court,
The Supreme
recognizing Ohio’s
authorizes conviction for conduct
charge
rule,
contemporaneous objection
rejected
offense, as
is not an
well as for
saying “any prisoner
Isaac’s claim
which
bringing
conduct which is an
The situation
a constitutional claim the federal court-
offense.
house
procedural
after a state
default
in the case before us does
come under
must
*4
prejudice
demonstrate cause and actual
be-
any of the four
listed in Cambie
categories
Issac,
obtaining
Engle
fore
v.
relief.”
102
thus it is not fundamental error. This
and
at 1572.
S.Ct.
upon
legal
Court should not
fiction
build
whose
no stable support.
foundation has
bar,
the case at
was no
there
lodged in the trial
to the jury
court
instruc
more
The case before
akin to those
us
tions, and thus there
been a procedural
has
rejected
has
situations where this Court
36.14, V.A.C.C.P.;
default.
See Article
and
fundamental error
concluded
argument
State,
Hackbarth
(Tex.Cr.
v.
sumption insanity, proof and burden of an unvacated
after the introduction of committing to a the defendant State, 459 hospital.
state Hendrix v. (Tex.Cr.App.1970).
S.W.2d 634
charge
burden of
(8) Failure to
YOUNGBLOOD,
Wayne
Richard
proof
upon
in a criminal case is
State.
*5
Appellant,
(Tex.Cr.App.
(This came in of Article the face Texas, Criminal 38.23, Y.A.C.C.P., case providing any 2. Panel No. where the evidence an issue as to raises evidence, the of the legality obtaining Sept. 1983. if it believes “jury shall be instructed that 2, 1983. Rehearing Denied Nov. ... evidence in viola- was obtained of-”) (Emphasis tion added) may sym- today
The action contemporaneous
bolize the demise of the will the longer rule in No Texas. judge impartial
trial be an arbitrator will, process, necessity, solely but making appellate for the of an
responsible has
record. The role of counsel defense of the “warm religated
now been con- vehemently which this Court has
body” concurring Judge Davis’
demned. See W.C.
opinion in Ybarra 953.
(Tex.Cr.App.1982), page man- embraces the majority warmly while language of 2.05
datory Section a cold shoulder
simultaneously turning of Article mandatory language the same
36.1 n , to- likewise majority V.A.C.C.P. question previously
day posited answers the