The Magic of Statutory Presumptions Revealed:Now You See Them, Now You Don’t

Robert W. Eutsler, Attorneyrobeutsler@gmail.com

713.302.7221July 30, 2015

INTRODUCTION

In Texas criminal defense work, we encounter statutory

presumptions randomly. They are sprinkled among such crimes as

aggravated assault of a public servant, forgery, theft, and speeding.

Presumptions and inferences are a staple of our adversary system of fact finding. It is often necessary for the trier of fact to determine the existence of an element of the crime – that is, an “ultimate” or “elemental” fact – from the existence of one or more “evidentiary” or “basic” facts. . . . [They] constitute prima facie evidence of the elemental fact.

Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 156-157 (1979). Presumptions

are "the slipperiest member of the family of legal terms . . . ."

McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984). In the

hands of a skilled practitioner armed with the right facts and a little

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white magic, they will dematerialize.1 But like the sorcerer’s mystical

power, misapplied presumptions become black magic for the State.

This article reviews the applicable law of statutory presumptions

and four exemplar jury instructions, three of which have been in general

use for some time. The other example is from the recently published

2015 softcover Texas Criminal Pattern Jury Charges - General,

Evidentiary and Ancillary Instructions (“the State Bar’s pattern jury

charges”). When a case contains exculpatory evidence contradicting a

statutory presumption’s invited inference, all four jury charge examples

unconstitutionally increase the odds of a wrongful conviction. A simple

remedial instruction, the magic words, resolves the problem.

PRESUMPTIONS AND THEIR DANGER

A presumption is a rule of evidence, supplying “an inference as to

the existence of a fact not actually known, arising from its usual

connection with another which is known.” Insurance Co. v. Weide, 78

U.S. 438, 441-442 (1870). A presumption is not evidence, nor does it

supply evidence. Guzman v. State, 188 S.W.3d 185, 193 (Tex. Crim.

App. 2006). Instead, it is a deduction from the circumstances of a case. 2

Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). See State

v. Litzau, 650 N.W.2d 177, 186 (Minn. 2002) (“a particular step of

logic”) and Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa.

2000) (“an evidentiary tool that enables the factfinder to proceed by

inferential reasoning from one fact to another”). It is a device

guaranteeing the trier of fact will consider a specific inference from

among the universe of possible inferences arising from the same proven

facts.

Presumptions are problematic because they are judicial comments

on the weight of the evidence. See Brown v. State, 122 S.W.3d 794, 797-

800 (Tex. Crim. App. 2003). Texas judges “are forbidden from

instructing the jury on any presumption . . . that does not have a statutory

basis.” Id. at 799, construing TEX. CODE CRIM. PROC. ANN. art. 38.04.

Presumptions blur the line between judge and jury and can alter the

judge’s role as a neutral arbiter between the advocates and an instructor

in the law for the jury, and instead involve the court “in the fray.” Id. at

798, citing Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919).

Judge Cochran delivered the Brown opinion and was the liaison between 3

the Court of Criminal Appeals and The Committee of the State Bar of

Texas on Pattern Jury Charges – Criminal who compiled the State Bar’s

pattern jury charges (“the Committee”). She observes that “[m]ost of the

time jury charges present presumptions incorrectly . . . .” Hollander v.

State, 414 S.W.3d 746, 753-754 (Tex. Crim. App. 2013) (Cochran, J.,

concurring). She also issues an ominous warning: “[t]he bench and bar

should exercise great caution in using presumptions in jury instructions.”

Hollander at 756 (Cochran, J., concurring).

THE MAGIC OF PRESUMPTIONS

Presumptions have ephemeral properties. “Presumptions are

indulged to supply the place of facts; they are never allowed against

ascertained and established facts. When these appear, presumptions

disappear.” Lincoln v. French, 105 U.S. 614, 617 (1882).

Courts have frequently remarked that presumptions are only intended to take the place of facts and cannot be relied upon where the facts are shown; or that no presumption can stand in the face of facts. According to such authorities a presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples

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utterly out of consideration of the trier of facts.

Combined Am. Ins. Co. v. Blanton, 353 S.W.2d 847, 849 (Tex. 1962),

citing Jones on Evidence § 32 (2d ed.). In beautiful period prose penned

over a century ago, a Missouri Supreme Court jurist once wrote:

But will the law indulge presumptions where all parties to the actual occurrence are alive and go upon the stand and the facts are fully disclosed? . . ."Presumptions," as happily stated by a scholarly counselor, ore tenus, in another case, "may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts."2 That presumptions have no place in the presence of the actual facts disclosed to the jury . . . is held in many cases . . . To give place to presumptions, on the facts of this case, is but to play with shadows and reject substance.

Mockowik v. Kansas City, St. J. & C.B.R.R., 94 S.W. 256 (Mo. 1906).

When a presumption is rebutted by exculpatory evidence, the State

will always argue the presumption still operates to prove its inferred

elemental fact. This is nothing more than sleight of hand misdirection.

Instead, the presumption vanishes as if by magic: “now you see it, now

you don’t.”

THE PROBLEM WITH TEXAS STATUTORY PRESUMPTIONS

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There are three possible types of statutory presumptions:

conclusive (an irrebuttable inference), mandatory (a rebuttable

inference), and permissive (permitting but not requiring an inference,

also rebuttable). Willis v. State, 790 S.W.2d 307, 309-310 (Tex. Crim.

App. 1990). “[T]he due process clauses of the Fifth and Fourteenth

Amendments set limits upon the power of Congress or that of a state

legislature to make the proof of one fact or group of facts evidence of

the existence of the ultimate fact on which guilt is predicated.” Tot v.

United States, 319 U.S. 463, 467 (1943). Eventually, all presumptions

were criticized by the Supreme Court of the United States, beginning in

1952. The first two were conclusive and permissive presumptions.

A conclusive presumption which testimony could not overthrow would effectively eliminate [the elemental fact] as an ingredient of the offense. A presumption which would permit but not require the jury to assume [an elemental fact] from an isolated fact would prejudge a conclusion which the jury should reach on its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with

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which the law endows the accused and which extends to every element of the crime.

Morissette v. United States, 342 U.S. 246, 275 (1952) “Whether [the

elemental fact] existed, the jury must determine, not only from the

[predicate facts], but from that together with defendant's testimony and

all of the surrounding circumstances.” Id. at 276. The Supreme Court of

the United States later clarifies that permissive presumptions are

constitutional when “instructions plainly [direct] the jury to consider all

the circumstances tending to support or contradict the inference . . . .”

Ulster at 162. Ulster at 157-160 also discusses decisions holding

mandatory presumptions violate due process because they shift the

burden of production or proof to a criminal defendant on a critical fact or

element of the offense. See Brown at 798-799, citing Sandstrom v.

Montana, 442 U.S. 510, 514-19 (1979), Ulster at 157-160, and Mullaney

v. Wilbur, 421 U.S. 684, 696-704 (1975).

TEX. PENAL CODE ANN. § 2.05 (hereinafter generally referred to as

Section 2.05) converts all statutory presumptions of whatever nature,

whether found in the Penal Code or elsewhere, into permissive

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presumptions. Willis at 310. Section 2.05 provides in pertinent part as

follows:

(a) . . . 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 find 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.

Permissive presumptions “permit juries to avoid assessing the

myriad facts which make specific cases unique.” Charles R. Nesson, 8

Reasonable Doubt and Permissive Inferences: The Value of Complexity,

92 HARV. L. REV. 1187, 1192 (1979). They “isolate and abstract a single

circumstance from the complex of circumstances presented in any given

case, and, on proof of that isolated fact, authorize an inference of some

other fact beyond a reasonable doubt.” Id. They risk the jury believing

that proof of the predicate facts beyond a reasonable doubt constitutes

proof of the ultimate element beyond a reasonable doubt. United States

v. Berry, 717 F.3d 823, 832 (10th Cir. 2013). The very real “possibility

is a jury may ignore exculpatory evidence.” United States v. Rubio-

Villareal, 967 F.2d 294, 299 (9th Cir. 1992) (en banc). This Ninth

Circuit panel further notes that a permissive presumption allowing the

jury to convict without consideration of the evidence as a whole is “an

intrusion on the jury’s deliberative process . . . [I]t effectively [conveys

to] the jury in this case that the judge [believes] there [is] sufficient

evidence to convict the defendant.” Id.

The bottom line is this: the charge “must not undermine the fact

finder’s responsibility at trial, based on evidence adduced by the State,

to find the ultimate facts beyond a reasonable doubt.” Ulster at 156.9

“More is required than just bare recitation of the statute. The

concept of a presumption has caused confusion among lawyers as well

as laymen, and the unqualified use of this word in the charge of the court

may mislead jurors into thinking they are bound to accept the

incriminating inference.” Commonwealth v. DiFrancesco, 329 A.2d 204,

211 (Pa. 1974) 211, citing Barfield v. United States, 229 F.2d 936 (5th

Cir. 1956) and others.

Section 2.05 partially addresses these constitutional concerns in

two ways. First, it raises the proof burden for the basic or predicate

evidentiary facts to beyond a reasonable doubt in Section 2.05(a)(2)(A)

(D). This is an exception to the rule that only elements of a crime need

be proven beyond a reasonable doubt. Berry at 831-832. Individual facts

generally do not require this level of confidence. Id. See Ulster at 167.

This hurdle blocks a presumption in rare cases when the basic or

evidentiary predicate facts themselves are contested. The second is the

authorization given to the trial judge to direct an acquittal if “the

evidence as a whole clearly precludes a finding beyond a reasonable

doubt of the presumed fact.” Section 2.05(a)(1). This is a nudge in the 10

right direction, but it overlooks the reality that it is juries, not judges,

who resolve contested questions of exculpatory facts. Furthermore, not

all judges are strong enough to take a case away from a jury even when a

permissive presumption is rebutted with uncontested credible evidence.

As Section 2.05 currently exists, it is unconstitutional when

exculpatory evidence calls into question a presumption’s inferred

elemental fact because as it is worded, the jury may convict without any

evidence other than proof beyond a reasonable doubt of the predicate

facts. The trial court must formulate remedial instructions requiring the

jury to consider the totality of the circumstances in order to satisfy due

process.

PROVISO WHEN NO EXCULPATORY EVIDENCE

In the garden-variety case where there is no evidence contradicting

the presumption, Section 2.05 passes constitutional muster because [t]he

value of these evidentiary devices, and their validity under the Due

Process Clause, vary from case to case, however, depending on the

strength of the connection between the particular basic and elemental

facts involved and on the degree to which the device curtails the 11

factfinder’s freedom to assess the evidence independently.” Ulster at

156.

The original purpose of Section 2.05 is to permit the jury to reject

the existence of the presumed elemental fact for no particular reason.

Just as Rubio-Villareal at 299 notes that a permissive presumption

“effectively [conveys to] the jury in this case that the judge [believes]

there [is] sufficient evidence to convict the defendant,” its corollary is

also true. The same presumption also sends this message: the judge is of

the opinion an acquittal is appropriate. If we can weave a good story and

the jury likes our client, we have a fighting chance.

FOUR EXEMPLAR JURY CHARGES FALL SHORT

Typing the word “presumption” in the search box on the Harris

County jury charge bank website brings up several links to jury

instructions for crimes containing presumptions. One is for aggravated

assault of a public servant, where it is presumed a defendant knows a

person is a public servant if the person is wearing a distinctive uniform

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or badge. TEX. PENAL CODE ANN. § 22.02(c).3 The Harris County jury

charge bank’s suggested instructions are as follows:

The defendant is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant. You are further instructed that the facts giving rise to the presumption must be proven beyond a reasonable doubt; and that if such facts are proven beyond a reasonable doubt you may find the element of the offense sought to be presumed exists, but you are not bound to so find; and that even though you 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 if you have a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and you shall not consider the presumption for any purpose.

These instructions are naked, simply parroting the wording of both

TEX. PENAL CODE ANN. § 22.02(c) and Section 2.05. They fail to

explain the presumption in the specific terms of the particular criminal

violation, which is “the clear mandate” of Section 2.05(a)(1). Bellamy v.

State, 742 S.W.2d 677, 686 (Tex. Crim. App. 1987) (en banc) (Miller, J.,

concurring). But more importantly, the charge does not address the

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constitutional problem presented by evidence contrary to the assumed

rationality of the presumption, such as the police officer in uniform

hiding behind a wall or otherwise being obscured by distance, darkness,

dense foliage, etc.

The analog published in the State Bar’s pattern jury charges at p.

164 is as follows:

In some cases, Texas law provides for what are called “presumptions.” A “presumption” is simply a conclusion that you may, but are not required to, reach when the state proves, beyond a reasonable doubt, an underlying fact.

In this case, the law provides for a presumption that the defendant knew that the person he allegedly assaulted was a public servant if the state proves, beyond a reasonable doubt, that at the time of the incident, the public servant, [name], was wearing a distinctive uniform or badge indicating the person’s employment as a [insert type of public servant, e.g., police officer].

If you find that the state has proven, beyond a reasonable doubt, that [name] was wearing a distinctive uniform or badge indicating he was employed as a [insert type of public servant, e.g., police officer] at the time of the alleged assault, then you may infer from this fact that the defendant knew he was a public servant. You are not required to infer this, however, even if you

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have found that [name] was wearing a distinctive uniform or badge indicating he was a [insert type of public servant, e.g., police officer].

If you have a reasonable doubt about whether [name] was wearing a distinctive uniform or a badge indicating he was employed as a [insert type of public servant, e.g., police officer] at the time of the alleged assault, you may not infer that the defendant knew that he was a public servant. The presumption does not apply in such a case, and you must not consider it for any purpose.

If you decide that the presumption does not apply, or that you do not wish to apply it, you must decide whether other evidence—not including the presumption—proves beyond a reasonable doubt that the defendant knew that [name] was a public servant.

If you decide to use the presumption, you may find that the defendant knew that [name] was a public servant, but you must still decide, however, whether the state has proven, beyond a reasonable doubt, the other elements of assault, as listed above.

These and the other State Bar pattern jury charges were drafted by

the Committee. The Committee should be commended for its efforts in

producing plain language, common sense instructions in terms of the

specific crime. However, the Committee admits on page xxi it “may

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have erred in its perceptions,” and reminds the reader its suggested

instructions have “no official status.”

Like the Harris County version, the State Bar’s pattern jury charge

for aggravated assault of a public servant fails to guide jurors in how to

constitutionally assess evidence when it conflicts with the presumption’s

invitation to infer that the defendant knew the person assaulted was a

public servant. The Committee does add a comment at p. 165 that “to

avoid constitutional concerns, the Committee recommends that the

instruction only be given when the evidence shows that the badge or

uniform was plainly visible.” This recommendation, while laudable,

abrogates the legislature’s intention to establish the presumption as part

of the crime’s definition. It crosses the line between judge and jury and

disregards Section 2.05(a)(1)’s mandate. It injects the judge’s opinion as

to the credibility of the witnesses and the weight of the evidence. It

drops the judge into the middle “of the fray” meant only for the jury.4

Charge error also seeps into our jurisprudence via the common

speeding ticket. Speeding in Texas is defined negatively: an operator

may not drive at a speed greater than is reasonable and prudent under the 16

circumstances then existing. TEX. TRANSP. CODE ANN. § 545.351(a). A

speed “in excess of the limits . . . is prima facie evidence that the speed

is not reasonable and prudent and that the speed is unlawful.” TEX.

TRANSP. CODE ANN. § 545.352(a). In this context, the term “prima facie

evidence” is synonymous for a presumption. Thomas v. State, 474

S.W.2d 692, 695 (Tex. Crim. App. 1972). See also Spencer v. State, 227

S.W.2d 552, 554 (Tex. Crim. App. 1950). Statutory presumptions

expressed as prima facie evidence are controlled by Section 2.05. Evans

v. State, 623 S.W.2d 924, 927-928 (Tex. Crim. App. 1981).

Accordingly, juries in speeding trials require Section 2.05 instructions.

Yet most municipal judges and justices of the peace in and around

Houston still instruct the jury as follows:

The term ‘prima facie evidence’ as used herein shall mean that evidence which stands proved until rebutted by other evidence (emphasis added).

This is a prohibited mandatory presumption and an example of the ill of

which Judge Cochran speaks:

Most of the time jury charges present presumptions incorrectly because most of the time the jury charge either omits the required language

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from Section 2.05(a)(2) entirely or fails to present that language in tandem with the statutory presumption. The result is an unconstitutional mandatory presumption rather than a permissive inference.

Hollander at 753-754 (Cochran, J., concurring).

The suggested speeding charge by the Texas Municipal Courts

Education Center is even worse:

Any speed in excess of the zone or posted speed is prima facie evidence that the speed is unreasonable or imprudent . . . [If] you believe beyond a reasonable doubt that . . . the Defendant did operate a motor vehicle . . . at a speed of _____ miles per hour and said speed being greater than reasonable and prudent under the circumstances then existing, said portion of the public street and highway was then and there zoned . . . for a speed of not greater than _____ miles per hour, said speed zone being posted with appropriate signs indicating said speed to be the prima facie maximum speed limit, . . . you must find the Defendant guilty.

Not only is the Section 2.05 language missing, these instructions

are convoluted, confusing, and contain gratuitous legalese slanted

toward the State. They provide no guidance whatsoever for the

significance of prima facie evidence except to say the speed limit is the

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prima facie maximum. This sounds like a prima facie case, which is

often confused with prima facie evidence even by those trained in the

law. See generally Evans construing prima facie evidence and prima

facie case in the context of Section 2.05. In this exemplar, used in

training new municipal judges by the Texas Municipal Courts Education

Center, prima facie maximum is undefined. Furthermore, because the

jury is not informed prima facie evidence is a presumption, the well-

worn and archaic term of art prima facie evidence remains “ambiguous

at best.” Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857,

859 (Tex. 1975).

The Texas Department of Transportation is the agency responsible

for establishing speed limits. It recognizes speed limit signs have

negligible influence on driving behavior; most drivers intuitively self-

regulate their speeds to reasonable levels based on perceived highway

and traffic conditions regardless of the posted speed limit.5 The agency

appreciates that speed limits are merely general guidelines and that

speed traps do exist. “Posting a speed limit below [the statistical norm]

would penalize a large percentage of reasonable drivers.”6 19

While we are not talking about direct loss of liberty in a speeding

case, erroneous instructions should not be taken lightly. Speeding is the

one crime far more people encounter than any other, both as an accused

and as a juror. Thus, most of the general public has been exposed to

charge error in one form or another. The wider implication of charge

error, especially when combined with a speed trap, is contempt for “the

system” as a bureaucratic revenue device and a generalized disrespect

for the law. As to a specific individual commuter, the negative collateral

effects an unjust speeding conviction include fines and court costs,

permanent entry on the driving record, points, possible surcharges,

increased liability insurance premiums and a possible license

suspension. More than one commercial truck driver has been compelled

to leave the profession due to a guilty speeding verdict when driving at a

reasonable speed above the limit.7 As expressed over one hundred years

ago by Massachusetts’ highest court in construing its prima facie

evidence speeding presumption:

The real question in all these cases is whether the speed is greater than was reasonable and proper . . . The jury are to give due weight . . . in connection

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with the other circumstances disclosed by the testimony whether coming from witnesses called by the government or by the defendant, and if they are satisfied that the speed is greater than was reasonable and proper, having regard to traffic, and the use of the way and safety of the public, they should convict the defendant; otherwise they should acquit him.

Commonwealth v. Cassidy, 95 N.E. 214, 215-216 (Mass. 1911).

FOREIGN JURISDICTIONS LEAD THE WAY

In 1974, the Supreme Court of Pennsylvania upheld a permissive

presumption of intoxication based on a chemical test in a 6-0 decision

(with one abstaining). The court writes thusly about jury instructions for

permissive presumptions:

In any case, if on the basis of all the evidence the jury entertains a reasonable doubt as to whether a defendant was under the influence of intoxicating liquor, they are duty-bound to acquit. . . .The jury should be instructed that the test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test results should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the influence of intoxicating

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liquors, they should return a verdict of “not guilty.”

DiFrancesco at 207-208, 211. A subsequent unanimous Pennsylvania

Supreme Court in 2000 with seven altogether different individual justices

specifically endorses DiFrancesco’s suggested jury charge. MacPherson

at 392.

A Tenth Circuit panel also addresses a claim of improper jury

instructions for a permissive presumption in United States v. Cota-Meza,

367 F.3d 1218, 1222-1223 (10th Cir. 2004), noting a “better instruction

would have stressed that the jury was permitted to draw the inference

only if in light of all of the other evidence, [the predicate facts]

convinced the jury beyond a reasonable doubt [of the presumed

elemental fact].” In 2013, a different Tenth Circuit three judge appellate

court cites Morissette and “reiterated” their agreement with the exact

same instruction suggested by their colleagues in Cota-Meza. Berry at

832.

These four opinions together with Morissette span 61 years of

jurisprudential thinking. All twenty-seven of these distinguished jurists

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agree, with no dissenters. This includes Justice Brennan and the seven

other Supreme Court justices who participated in Morissette.

Unfortunately, our Court of Criminal Appeals missed an opportunity to

join this august group when it decided Bellamy in 1987. On a petition for

discretionary review, the en banc majority with two dissenters remanded

a case because of the trial judge’s confusing instruction that “fails to

alert the jury it is free to reject the presumption should it find that

the circumstances presented by the State’s case as a whole impugn

the inference the presumption authorizes it to convict upon . . . .”

(emphasis added). Bellamy at 684. The court was correct in remanding,

but it should have gone further. If circumstances “as a whole impugn the

inference,” the jury must be instructed to acquit. This represents the very

essence of reasonable doubt.

THE MAGIC WORDS

If we take the suggested instructions from DiFrancesco, Cota-

Meza and Berry and combine them with Section 2.05(a)(1)’s authority

for a the judge to grant a motion for directed verdict “when the evidence

as a whole clearly precludes a finding beyond a reasonable doubt of the 23

presumed fact,” these magic words appear:

Even if you find [the predicate facts giving rise to the presumption] beyond a reasonable doubt, you must find the defendant not guilty if you are satisfied the evidence as a whole precludes a finding beyond a reasonable doubt of [the presumed ultimate or elemental fact].

When the magic words are in turn blended with the State Bar’s

pattern jury charges for presumptions, constitutionally sound

instructions appear. Together, they prevent the jury from finding a

defendant guilty on the basis of a presumption unless it has weighed the

totality of the circumstances.

CONCLUSION

To the uninitiated, the slippery world of presumptions is a

dangerous place. Black letter law says “[p]resumptions cannot be

indulged in opposition to facts which show that the fact sought to be

established by presumption can have no existence.” Largen v. Texas, 13

S.W. 161, 163 (Tex. 1890). When the slightest rebuttal evidence exists,

defense counsel must bring it out like a magician with a rabbit in a hat.

Otherwise, the issue will be waived. And even if the jury sees an

exculpatory rabbit, if it is not coupled with a proper charge, white magic 24

turns black, the presumption remains, and the jury can be deceived.

The defense bar should seek to amend Section 2.05. In the

meantime, at this very moment there may be a case ripe for appeal. Even

unobjected to error can be egregious enough to prevail on appeal. See

generally Hollander (failure to instruct that predicate facts must be

proven beyond a reasonable doubt). The traffic ticket defense bar is

positioned to take the lead, because almost every weekday, somewhere

in a municipal court of record in Texas, a reasonable driver will be

found guilty of speeding because of charge error.

Now that we are initiated with the secret of the magic words, we

must put them into our bag of tricks. If we anticipate and preserve error,

we can make our own white magic.

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1 Like any statute, a statutory presumption can be unconstitutional on its face if it is not logical in light of common experience. See Gersh v. State, 714 S.W.2d 80 (Tex. App.–Dallas 1986), pet. ref’d, 738 S.W.2d 287 (Tex. Crim. App. 1987). This issue is outside the scope of this article. 2 Presumably stolen from an oral argument, ore tenus is Latin for “by mouth.” 3 One wonders why this and many other statutory presumptions even exist. What jury would not contemplate this reasonable inference without the statutory presumption, and what prosecutor would not argue it? This is why a court’s imprimatur is so dangerous. 4 It appears some other minor changes are in order. In the fourth paragraph of the State Bar’s jury charge concerning insufficient proof of the predicate facts, after “you may not infer,” the phrase “from the presumption” should be added. Also, the last paragraph should begin “If you decide to use the presumption and find that the defendant knew that [name] was a public servant, or if you find from other evidence without using the presumption that the defendant knew that [name] was a public servant, you must still decide, however,”5 http://www.txdot.gov/government/enforcement/speed-limits.html (last visited July 7, 2015).6 http://onlinemanuals.txdot.gov/txdotmanuals/szn/determining_the_85th_percentile_speed.htm (last visited July 7, 2015).7 Holders of commercial driver licenses cannot avail themselves of the driver safety course (defensive driving) or deferred disposition (formerly deferred adjudication) plea bargain options. TEX. CODE CRIM. PROC. ANN. arts. 45.051(f)(2) and 45.0511(s).