Public-domain · open source
OpenJurist

742 S.W.2d 677

Bellamy v. State

Court of Criminal Appeals of Texas

Decided December 16, 1987

Court of Criminal Appeals of Texas · decided 1987-12-16

Key passage — most relied on by later courts

““When this code or another law establishes a presumption with respect to any fact, it has the following consequences: “(1) if there is sufficient evidence of the facts giving 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 find that the element of 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, or any other element of the offense charged, it shall acquit the defendant and say by its verdict not guilty.””

quoted by 1 later decision, including Willis v. State

Applies TX PE § 2.05

Good law ✅— No negative treatment on recordhow we know

Decided 1987-12-16

How this case has been cited

Cited by 10 later decisions — most recently April 2016

10 state decisions

401987199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

MILLER, Judge,

¶1concurring.

¶2I join the majority opinion, writing only to point out that the court’s charge in this ease did not contain an instruction mandated by V.T.C.A., Penal Code, § 2.05. Thus, in my view, the court’s charge in the instant case instructed the jury that the presumption at bar was mandatory. See Bellamy v. State (Tex.Cr.App.1987), slip op. at 11-13.

¶3The majority opinion faults the court’s presumption charge because it “never clearly informed the' jury that it was free to reject the presumption”. Id., slip op. at 12. Conceding for a moment- that the Sec. 31.-03(c)(3) V.A.P.C. presumption as worded falls somewhere between confusing and “utter nonsense”, id., I find that the clear mandate of § 2.05, supra, that:

“the court shall charge the jury, in terms of the presumption and the specific element to which it applies” (emphasis supplied).

¶4was virtually totally ignored by the trial judge.

¶5It is important to note that nowhere in the charge, except in that portion quoted by the majority, is the statutory presumption provided for in Sec. 2.05, supra, alluded to. Even a form instruction containing § 2.05 as written in the Penal Code is absent.1 The presence of such a form instruction may not alone save a charge that is otherwise mandatory in its wording, but would have been an important factor to consider when, as here, a confusing and arguably ambiguous (taken as a whole) presumption charge is submitted to the jury.

TEAGUE, and CAMPBELL, JJ., join.

¶6. Such an instruction does not comply with the above quoted mandate of § 2.05, but it would be better than nothing.

/742/sw2d/677 · .json · Public domain