concurring and dissenting.
Although I cannot agree with all that the majority opinion states, which causes me to write, I do agree with its conclusion that the trial court erred in instructing the jury on the non-statutory presumption of intent arising from non-consensual nighttime entry into a habitation. However, given the record of this cause, I am compelled to dissent to the majority opinion’s holding that this cause should be remanded to the Dallas Court of Appeals, for it “to decide whether appellant has sustained ‘some harm’ as a result of the objected-to error in the court’s charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).” In the immortal words of former President Harry S. Truman, “The Buck Stops Here,” and this Court, not the Dallas Court of Appeals, should be addressing that issue. I find that what this Court does by remanding this cause to the court of appeals represents nothing less than this Court engaging in a form of appellate “ping pong justice,” which I find despicable. Given the record of this cause, I do not believe that there is any way that any rational appellate court judge could conclude that the appellant was harmed by the error in the charge to the extent that he was deprived of or denied a fair trial.
What caused the trial judge in this cause to give the complained of instruction perhaps lies in the fact that this Court has in the past used the term “presumption” rather loosely in some of its opinions, although a reading of those cases where the term has been invoked and applied in a non-statutory setting makes it obvious to me that its usage was intended only to mean the drawing of a permissible inference from the facts of the case, and was not used in the sense of a true presumption. See the discussion in Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985); Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983).
The portion of the charge about which complaint is made in this cause is as follows: “If it is proven to you beyond a reasonable doubt that the said defendant did break and enter the building in question on the occasion in question at nighttime, the defendant’s intent to commit theft may be presumed from these facts, but you are not bound to so find.”
However, the trial judge in this cause did not stop there but also instructed the jury pursuant to Y.T.C.A., Penal Code, Section 2.05, which provides: “When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted 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; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may *509find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.”
There should be no question that the above instructions should not have been given in this cause because there is nothing in our burglary statute or the penal code that might reflect or indicate that such a presumption gives rise to proof of intent to commit the offense of burglary. See V.T. C.A., Penal Code, Section 30.02. Apparently, this type instruction is unfortunately now in vogue in Dallas County. See Shockley v. State, P.D.R. number 1009-85; La Point v. State, P.D.R. number 0227-86, presently pending before this Court.
Judge Clinton, the author of the majority opinion, states that the above instructions permitted the jury to “ignore appellant’s defensive issue altogether. In giving such an instruction the trial court improperly commented on the weight to be given to each party’s evidence.” I am unable to agree with his first statement, although I do agree with his latter statement.
The above presumption that was given in this cause is not a “true” presumption, but is one that is usually used by appellate courts to view and establish the sufficiency of the evidence. See Aguilar, supra, and Hardesty, supra.
“[Statutory] presumptions, in criminal jurisprudential parlance, are usually said to be either mandatory or permissive. The distinction between the two is usually seen in the respective effect each has. A permissive presumption allows, but does not require, the trier of fact to infer the elemental or ultimate fact from the proof offered. It places no burden on the accused. A mandatory presumption, on the other hand, directs that the elemental or ultimate fact must be found upon proof of the basic fact, unless the accused presents evidence to rebut the presumption ... A mandatory presumption is per se violative of the due process rights of the accused, because it impermissibly shifts the burden of proof from the prosecution to the appellant ... However, even a permissible presumption may be in violation of the accused’s due process rights if there is no rational connection between the fact proved and the ultimate fact presumed, or if the inference of the one from proof of the other is arbitrary because of a lack of connection between the two in common experience ...” Hall v. State, 661 S.W.2d 101, 104 (Tex.Cr.App.1983) (Teague, J., concurring opinion.)
The questions that must be answered are whether the placing of the presumption and the provisions of Section 2.05 into the charge merely specified to the jurors the procedural consequences of what their good common sense already allowed them to infer, namely, from his unlawful entry the jurors could have inferred that the appellant had the intent to burglarize the residence, Cf. Wilson v. State, 658 S.W.2d 615 (Tex.Cr.App.1983); Goswick v. State, 656 S.W.2d 68 (Tex.Cr.App.1983); Coberly v. State, 644 S.W.2d 734 (Tex.Cr.App.1983), or whether the presumption was a mandatory one.
Judge Clinton concludes that all of the above instructions amounted to an instruction to the jury that “they could ignore appellant’s defensive evidence altogether.” In sum, he has construed the “presumption” instruction that was given to be a mandatory presumption instruction. I disagree, although I do agree that none of the instructions should have been given in the first place. In all due respect to Judge Clinton, when read as a whole, the charge did not tell the jury to “ignore appellant’s defensive evidence altogether.” After carefully reading the record, I am at a loss to understand what defensive evidence the appellant presented. The appellant’s testimony did not challenge the inference that *510when he unlawfully entered the habitation he had the intent to commit theft; his “defensive” testimony only went to the fact that he now does not remember what happened that night because he consumed too much alcohol, i.e., amnesia caused by consuming too much of the grape. Taking all of the instructions together, it appears to me that the jury was only told what its good common sense permitted it to do in the first place.
The facts of this case reflect that while asleep in bed with her husband, the complainant awoke and saw a person who was later identified as the appellant standing in the bedroom. The complainant awakened her husband, who immediately retrieved a weapon that he kept under the mattress. Soon thereafter, the husband and the appellant got into a scuffle over possession of the weapon, which battle the husband won. When asked by the husband what he was doing in his residence, the appellant responded: “I need money.”
The appellant’s version of what happened is that because he had gotten so drunk that night he could not recall what had happened that night. A psychiatrist testified that the appellant was suffering from “amnesia caused by idiosyncratic intoxication,” i.e., an abnormal physiological reaction to alcohol.
The trial court charged the jury, inter alia, on the elements of burglary of a habitation and further instructed it that before it could find the appellant guilty it had to find “from the evidence beyond a reasonable doubt that the entry, if any, in the habitation was so made with the intent to commit the specific crime of theft.” The charge then told the jury about the elements of theft, defined the terms “intentionally” and “knowingly”, and then gave the presumption instruction, as well as applying in principle the provisions of Section 2.05, supra. The jury also was instructed on the lesser included offense of criminal trespass. Viewing the charge as a whole, I find that given the instructions as provided by Section 2.05, supra, the instruction on the “presumption” only amounted to a permissive inference instruction, and was not a mandatory presumption instruction. Again, the instructions should not have been given.
Probably since Adam and Eve constructed man’s first habitation, or at least since common-law times, any rational person from accumulated common experience may draw from facts which establish that a person unlawfully went inside of the residence of another at nighttime the inference that he did so with the intent to steal. The only other possible reasonable inference that might be drawn from such facts is that such a person is hellbent on committing suicide. The use of the term “presumption”, rather than the term “inference”, does not alter this age-old belief. Cf. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (Presuming knowledge from unexplained possession of recently-stolen goods no violation of the Fifth Amendment, especially when the jury was told explanation could come from other sources.)
In this instance, the erroneous instruction did not relieve the State from proving all the elements of the offense. Again, the “presumption” instruction was not a “conclusive” or “mandatory” presumption instruction, as the majority opinion makes it out to be. The presumption instruction merely stated the obvious, that a person who enters a habitation at night without the consent of the owner does so with the intent to commit theft. By applying the provisions of Section 2.05, supra, the court’s instruction to the jury made it clear to the jury that the “presumption” was actually a permissive inference that it was free to draw from the facts of the case. Cf. Boone v. State, 689 S.W.2d 467 (Tex.Cr.App.1985).
In Almanza v. State, supra, a majority of this Court held that if there was objected-to error in the charge, “then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly *511preserved by objection will call for reversal as long as the error is not harmless ... [T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Having applied that test to the error that occurred in the jury charge in this case, I am unable to state that the error was “calculated to injure the rights of the defendant,” or deprived and denied him a fair trial on the merits of the case.
In summary, the trial judge in this cause erred by giving the above complained of instructions, but the error was not reversible error. I would affirm the judgment of the court of appeals.
McCORMICK, J., joins.