dissenting.
The majority and the State confuse preservation with the responsibility to direct the trial court on precisely how to fix the problem. Restated, the question regarding preservation presented herein is whether an objection is sufficient if it points out the problem, or must it also state the cure? Defense counsel made a timely and specific objection, not unlike Vinny Gambini in the movie, My Cousin Vinny:
Vinny Gambini: I object to this witness being called at this time. We’ve been given no prior notice he’d testify. No discovery of any tests he’s conducted or reports he’s prepared. And as the court is aware, the defense is entitled to advance notice of any witness who will testify, particularly those who will give scientific evidence, so that we may properly prepare for cross-examination, as well as give the defense an opportunity to have the witness’s reports reviewed by a defense expert, who might then be in a position to contradict the veracity of his conclusions.
Judge Chamberlain Haller: Mr. Gam-bini?
Vinny Gambini: Yes, sir?
Judge Chamberlain Haller: Mr. Gam-bini, that is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you.
Judge Chamberlain Haller: Overruled.
My Cousin Vinny, (20th Century Fox 1992) (motion picture). Defense counsel’s objection and the ruling thereon follow:
MR. HAGEN: Judge, my — the only objection I have to the charge, other than that paragraph, is the inclusion of a presumption in the charge, and specifically the language that reads recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. I have a two part objection to that, that’s a comment on the evidence and that presumptions in criminal law have been held to violate the due process clause of the United States Constitution. So that’s my first objection, that you cannot presume facts in a criminal case. So I’d like a ruling on that one first.
THE COURT: Okay. I’m going to overrule that. And the reason that I’m going to overrule that is, one, I follow the statutes and the appellant [sic] courts of the State of Texas, and I do not want to make any ruling that makes *689it, you do this in County Criminal Court No. 4 in Denton County, but the rest of the State is doing something else. So I overrule your constitutional arguments on that as that’s not been — that’s not been addressed elsewhere. And so you have — I’ve overruled that for that reason.
The problem with the court’s ruling, and stated reason for the ruling, is that it is wrong because it has been addressed elsewhere and the result was that the substitution of presumptions for evidence of elements of the offense has been held to violate the due process clause of the United States Constitution.
The United States Supreme Court has held:
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” ⅝ ⅜ * * * -phis “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” * * * ⅜ prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. * ⅞ ⅝ ⅜ ⅜.
Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (internal citations omitted). Mandatory presumptions are unconstitutional. Willis v. State, 790 S.W.2d 307, 309 (Tex.Crim.App.1990).
Having improperly determined that the error was not preserved, the majority applies an incorrect standard of review for charge error under Almanza. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). In conducting their charge error analysis, they also discount the contested nature of the issue — three witnesses say Neely pointed the gun at Anderson, three say she did not.
I disagree with the majority’s conclusion that recklessness and danger ai'e not contested issues when they are elements of the offense. The State told the jury from the very beginning, during jury selection, that two elements of the offense were presumed.
[R]ecklessness and danger are presumed. In other words, the State doesn’t have to go crazy trying to prove it, right? If the actor knowingly pointed a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. [RR2 26-27].
And in closing arguments, the State forcefully argued application of the presumption provided proof of elements of the offense. The State argued:
The question, I guess, would be whether or not they recklessly engaged. Well, here’s recklessness. Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. [RR3 247].
Because the issue of intent to point the firearm was a hotly contested issue at trial and the finding thereon is what allows the application of the presumption, and because the use of a presumption is a violation of due process in a criminal case, I conclude the use of the presumption was error and was not harmless. I would reverse and remand for further proceedings. Because the majority does not, I respectfully dissent.