Green v. State

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 Tex.Penal Code Ann. § 43.23(e) unconstitutional. We then held the evidence, without the presumption, insufficient to support the conviction and ordered an acquittal. Id., 658 S.W.2d at 581-582. The plurality and dissenting opinions are grounded upon their respective interpretations of Davis.

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....

Davis, 658 S.W.2d at 578-79.

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 *540Tex.Penal Code Ann. § 28.03(c) unconstitutional. Id., 714 S.W.2d at 81. The Court of Appeals, relying on Gonzales v. State, 676 S.W.2d 437, 439 (Tex.App.-Houston [1st Dist.] 1984), held the proper remedy when an appellate court holds a presumption invalid is to remand the ease to the trial court. Id., 714 S.W.2d at 82. Our refusal of the State’s petition for discretionary review expressly adopted the Court’s reasoning:

As is true in every case where discretionary review is summarily refused, such refusal does not constitute endorsement or adoption of the reasoning employed by the Court of Appeals. Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).
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.

Gersh, 738 S.W.2d at 287.

The dissent argues that our opinion in Gersh is not controlling because a refusal of discretionary review has no precedential value under Sheffield, 650 S.W.2d at 813. 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 suf-fieiency 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 871. If we subsequently, find a portion of the evidence was inadmissible, we determine whether the improperly admitted evidence contributed to the verdict. Tex.R.App.P. 81(b)(2).

In the setting of an unconstitutional presumption, the fact finder is entitled to rely on the presumption, Tex.Penal Code Ann. § 2.05, in reaching its verdict just as it is entitled to rely on improperly admitted evidence. In this limited context, there should be no distinction between improperly admitted evidence and an unconstitutional statutory presumption; such unconstitutional presumptions should be considered when determining whether the evidence is sufficient.

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*541sumption, was insufficient to sustain the con-vietion. Green, 815 S.W.2d at 908. Consequently, appellant is entitled to a new trial because the trial judge relied on the presumption to convict. Rule 81(b)(2).

With these comments, I join only the judgment of the Court.

. The dissent argues the instant case is controlled by Davis:

Davis ... 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 an 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. Post, p. 543.

. In Sheffield, we stated:

To prevent any misunderstanding, we take this opportunity to emphasize that the summary refusal of a petition for discretionary review by this Court is of no precedential value. This is true where the petition is refused without opinion, as is the usual practice, as well as where the petition is refused with a brief opinion disavowing the reasoning employed by the Court of Appeals, as in the instant case. The Bench and Bar of the State should not assume that the summary refusal of a petition for discretionary review lends any additional authority to the opinion of the Court of Appeals.

Id., 650 S.W.2d at 814.