Green v. State , 1995 Tex. Crim. App. LEXIS 15 ( 1995 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted before the trial court for criminal mischief and assessed a fine of $250. See V.T.C.A., Penal Code, Section 28.03(a)(2). On direct appeal, the Fort Worth Court of Appeals reversed the conviction, holding that the evidence was insufficient to support the conviction, and ordered the judgment reformed to reflect an acquittal. Green v. State, 815 S.W.2d 906 (Tex. App.-Fort Worth 1991). We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in ordering the acquittal. We will reverse that portion of the Court of Appeals’ decision, and remand the case to the trial court for a new trial.

Because the appellant challenged the sufficiency of evidence at both stages of trial, a brief review of the facts is necessary. The State presented evidence at trial that showed that someone diverted electrical energy from an outlet owned by the homeowners’ association at the town house complex where appellant lived by running an extension cord from that outlet to appellant’s individual town home, without the permission of the homeowners’ association. The electrical service at the town home was in appellant’s name, as was the lease to the town home.

The State relied on V.T.C.A., Penal Code, Section 28.03(c), which permits a presumption that the person in whose name the utility service is billed is the person who tampered with the tangible property of the owner when the supply has been diverted from passing through a metering device. The State, relying on the presumption, presented no other evidence of identity. The appellant presented no evidence.

On appeal, the Court of Appeals found, and the State acknowledged, that the presumption was unconstitutional as applied to appellant. See Gersh v. State, 714 S.W.2d 80 (Tex.App.-Dallas 1986), pet. ref'd, 738 S.W.2d 287 (Tex.Cr.App.1987). The State claimed that its reliance on the unconstitutional presumption was trial error, and as such required reversal and remand to the trial court for a new trial. The Court of Appeals disagreed, and instead concluded that the evidence presented at trial, without the presumption, was insufficient to support the conviction. The Court of Appeals reversed and ordered the judgment reformed to reflect acquittal.

In its only ground for review, the State claims its reliance on the presumption was trial error, and that the Court of Appeals should have remanded the case for a new trial, rather than reforming the verdict to reflect an acquittal. The State contends the Court of Appeals erred in excluding the improper presumption from its analysis of the sufficiency of the evidence. The State argues that there is conflicting authority from this Court on the proper remedy when a presumption is held invalid and therefore sufficiency of the evidence supporting a conviction is challenged.

When evidentiary sufficiency is challenged, the evidence is reviewed by the appellate court in the light most favorable to the prosecution. Skinner v. State, 652 S.W.2d 773, 776 (Tex.Cr.App.1983). It is well settled that the reviewing court must consider all evidence presented at trial, including evidence that was improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988); see Roeder v. State, 688 S.W.2d 856, 859-60 (Tex.Cr.App.), cert. denied, 474 U.S. 988, 106 S.Ct. 396, 88 L.Ed.2d 349 (1985). The incorrect receipt or rejection of evidence is considered a trial error, and the State should be allowed to retry the appellant if it chooses. See Burks v. United States, 437 U.S. 1, 14-15, 98 S.Ct. 2141, 2148-49, 57 L.Ed.2d 1 (1978); see also Greene v. Massey, 437 U.S. 19, 25-26, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d 15 (1978); Messer v. State, 729 S.W.2d 694, 697 (Tex.Cr.App.1987). It is also well settled that if, considering all the evidence (including the improperly admitted evidence) before the trial court, the appellate court determines that the evidence is insufficient to support a conviction, the proper procedure is to reverse and order the judgment reformed to reflect an acquittal. Burks, 437 U.S. at 18, 98 S.Ct. at 2150; Messer, 729 S.W.2d at 697.

The State relies on several cases where the use of an improper presumption at trial resulted on appeal in reversal and remand for retrial. Gersh; Gonzales v. State, 676 S.W.2d 437 (Tex.App.-Houston [1st Dist.] 1984), pet. ref'd, 689 S.W.2d 231 (Tex.Cr.App. 1985); Shealy v. State, 675 S.W.2d 215 (Tex.Cr.App.1984). In Gersh, a case addressing the same presumption at issue in the instant case, the Dallas Court of Appeals held that “[t]he proper procedure when the Court holds a presumption invalid is to remand the cause to the trial court.” Gersh, 714 S.W.2d at 82. This Court, in refusing the State’s petition for discretionary review, stated, “[w]e believe that [the Court of Appeals] reached the correct result for the correct reasons.” Gersh, 738 S.W.2d at 287.

The Fort Worth Court of Appeals, in ordering reformation of the judgment to reflect acquittal, relied only on our decision in Davis v. State, 658 S.W.2d 572 (Tex.Cr.App.1983). Davis also involved a constitutionally defective presumption, and on appeal in that case, this Court reversed the conviction and ordered acquittal. For the reasons stated below, we hold the Court of Appeals misapplied Davis to this case.

In Davis, the defendant was found guilty at trial of promoting obscenity and the judgment was affirmed by the Waco Court of Appeals. At trial, the State relied on a presumption in V.T.C.A., Penal Code, Section 43.23(e) to prove the defendant knew that the material he was promoting was obscene. This Court reversed, stating that “[a]bsent reliance upon the presumption, the proof offered did not establish that appellant knew the allegedly obscene content and character of the film. He is entitled to an acquittal.” Davis, 658 S.W.2d at 580. This language is misleading. Upon careful perusal of the entire opinion, it is apparent that the ground for reversal and acquittal is not the insufficiency of the evidence sans the unconstitutionally applied presumption, but rather the insufficiency of the rest of the State’s case to prove the facts necessary to invoke the presumption in the first place. The presumption in Y.T.C.A., Penal Code, Section 43.23(e) is invoked when “a person ... promotes or wholesale promotes obscene material.” (Emphasis added.) The State failed to establish the facts necessary to invoke the presumption, i.e., proof that the appellant had exhibited the film, thereby “promoting” it, Davis, 658 S.W.2d at 576, or even that the film was “obscene.” Id. at 581. See V.T.C.A., Penal Code, Sections 43.21(a)(1) and (5), 43.23(c) and (e). The proper result was thus reached in Davis: because of insufficient evidence to even invoke the presumption, the conviction was reversed, and acquittal ordered.

The State in the instant case did not fail to prove beyond a reasonable doubt the facts necessary to raise the presumption it relied on at trial. Under V.T.C.A., Penal Code, Section 28.03(c), in order to invoke the presumption, the State needed to show that appellant was the person in whose name the electricity was last billed, that appellant was receiving the economic benefit of the electricity, and that the electricity had been diverted from passing through a metering device. The trial court could have found such facts to be true beyond a reasonable doubt, and indeed would have found them true in order to reach a guilty verdict.

Since the evidence was sufficient to establish the facts necessary to raise the presumption, and since the presumption was unconstitutional as applied to appellant, the reliance on the presumption was trial error, and the correct procedure on appeal is to reverse the conviction and remand to the trial court for a new trial. We therefore vacate that portion of the Court of Appeals’ judgment ordering acquittal, and remand the case to the trial court for retrial.

OVERSTREET, J., dissents. MEYERS, J., not participating.