..

JIMMAlTOX AttorneyGeneral

Supmm. Cowl Bulldin~ P.0. Box12548 Aurlln. TX. ?6711-2548 SlW752501 T*mi Qlom?4-1357 Telecopier 51214750266

714Jackson. Suite700 Dallar. TX. 752024505 2Wl7428944

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AnEqual

Opportunity/ Affirmative Action Employer 

# TheAttorney General ofTexas

March24. 1986

Honorable Gerald .A.Fohn District Attorney TomGreen County #Courthouse Room315 SanAngelo, Texas 76903 Opinion No. JM-456 RS: .Constitutlonality of section 28.03(c) of the Texas Penal Code, vhich creates apresumption about the guilt of a person in whose nameutilities are billed DearMr. Fohn: You have asked several questions about certain Penal Code provisions concerning tampering with public utility meters. **YOW** first question l.s: “Is the presumption.contained in section 28.03(c) of the Texas Penal Code constitutional?” Section 28.03, which governs the offense of “criminal mischief,” provides:

A ‘qrrson commits an offense if. without the effective consent of the owner: (1) he intentionally or knowingly damages o,r destrcys the tangible property of the owner; or (2) he Intentionally or knowingly tampers vlth the tangible property of the ovner and causes pccunj,ary loss or substantial inconvenience to the ovner or athird person. .Penal Code 928.Cr3 (a). The statuw also contains the following provision. which creates a “presumption” regarding identity andmental state:

Fox the purposes of this section, It shall be presumed that a person in vhose name public communications, public water. gas, or power supply is or was last billed and who is receiving the economic benefit of said communication or supply, has kmvingly tampered with the tangible property of the owner if the communication or supply has been:

p. 2075llonorablc Gerald A. Pohn- Pago2 (RI-456)

(1) diver%ed from PaMitlg through a metering dev!.ce; or (2) prevmted from being correctly reglstared by ametering device; or (3) actiwted by any device Installed to obtain publ:lc comunicatlons. public weter, gas, or power supply vithout ametering device. Penal Code 128.03(c). !!ou ask about. the constitutionality of the

“presumptloo

” set out in t’hat provlsloa. The Peoal Code 6~‘:s out the consequences of a presumption established by apenal law:

Whenthis code or another penal lav establishes apresumption sith respect to anyfact, it has the following consequences: (1) if c:here is sufficient evidence of the facts that give rise to the presumption, the issue of tha existence of the presumed fact mustbe subriitted to thejury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond areasonable doubt of thlkpresumed fact: and (2) if the existence of the presumed fact is subtitttrd to the jurp, the court shall charge the jury. in terms of the presumption and the spi:cfflc element to which it applies, as follows: (A) t’hat the facts giving rise to the presumptimonmust be proven beyond a reasonable doubt; (B) that if such facts are proven beyond a reasonable doubt the jury mayfind that the element of the offense sought to be presumed erisrs, but it is not bound to so find; (C) t,het even though the jury mnyfind the existence of such element. the state mustprove beyond a reasonable doubt csch of the other elements of the offense charged; and

p. 2076.. Honorable Gereld A. Pohn- Page 3 (JM-456)

(D) ii’ the jurp hes l reasonable doubt as to the existence of a fact or feets giving rlw to the presumption, the presumption fail:1 end the jury shall not consider the premmptlw for 

### any purpose. Penal Code 92.05. A true presumption .u:ises when a court directs the fectflnder that it must find the p,:esumed fact or that It must do so if the defendant does not comeforward with rebuttal evidence. County Court of Ulster County v. All~an, 442 U.S. 140 (1979). A permissive inference. in contrast, f; deduction that the factflnder x draw from the circumstances of the case but one that he Is not required to draw. Sardesty v. State. 656 S.W.Zd 73, 76 (Tex. Grim. App. 1983). Section 2.05 of the Penal. Code requires that whenthe evidence in a case gives rise to e “presumption” created by a penal statute, the court must instruct the :ury that It mayfind the presumed fact but that it is not bound to do so. The combined effect of section 2.05 and section 28.03(c) is to establish a permissible inference rather than a true presumption. Moses v. State, 633 S.W.2d 5?5, 587 (Tex. APP

. - Houston [14th Dist.] 1982). overruled on other grounds in Davis v. State, 658S.W.2d 572 (Tex. Grim. App. 1983); see also Rardesig. 656 S.W.2d 73, 76-77 (Tex. Grim. App. 1983) (en bane -----Y (explaining proper use of terms “presumption” and “permissive inference”); Roberts v. !jtate, 672 S.W.2d 570, 579-80 (Tex. App. - Fort Worth 1984. no wri’gTholding that courts must use the term

“circumstance of guilt” ra,ther thao “presumption” or “inference” when charging jury). Because different constitutional standards apply to true presumptions and permissive inferences, we vi11 use the term

“permissive inference” in analyzing section 28.03(c)

. In essence, then, section 28.03(c) would permit the foliowing: if the prosecution shovs that a particular utility meter has been tampered with in one of th’ethree ways described in section 28.03(c), the court may, but need t.ot. instruct the jury that it mayfind that the person in whose namaItheutility is billed andwhois receiving the economic benefit of t’nautility supply Is the person whotampered with the meter andthat ha:did so knovlngly. In other vords, the jury mayinfer identity endmental state from the fact of tampering. You askwhether this Is const:.tutional. Wehave received s&era1 briefs regarding your opinion request. All were submitted onbehalf of utility companies. All conclude that the permissive Inference created by section 28.03(c) is constitutional because, in the opinion ,,:Ethe briefwriters, the facts presumed are more likely than not to :iollow from the facts that give rise to the permissive inference. relevant authority. These briefs do not sufficiently analyze the Although amore-likely-than-not standard would be the appropriate standard :tor testing this permissive inference In some

p. 2077Ronorable Gerald A. Fohn-8Page I (JM-456)

circumstances, it would trotbe the appropriate standard if the fact of tampering was the only evidence presented on the issues of Identity andmental state. In order to 

### l

xpla!.n the constitutional stsnderds for tebting permissive inferences, it is first necess0ry to explain certsin aspects of the constituti.onsl requirement that a criminal conviction bebased onproof beyond areasonable doubt. Although the requirement that guilt be proved beylnrdareasonable doubt has elweys been part of American criminal law, :Ltwas not until 1970 that the United States Supreme Court held that the due process clause of the fourttenth amendmentprotects a criminal defendant agalaet conviction “except upon proof beyond s rwsonable doubt of every fact necessary to constitute the crime vi:h which he ir charged.” U.S. 358, 361-64 (1970). In re Winshi~. 397 The reasonable doubt standard involves not only a fsct question for the factfinder, but also a legal question: whether. after viewing t’w evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyend areasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1971’). Thus, insufficiency of the evidence to prove guilt beyond a reasonable doubt can be,the basis for any entry of acquittal by the tric.1 judge or for reversal of a conviction by an appellate court. The Supreme Court’II decisions regarding the reasonable doubt standard gave rise to questions about the constitutionality of presumptions and permissive inferences. **In** County Court of Ulster Countyv. Allen, the SupremeCourt set out standards for tesrlng the constitutionality of pr~rsumptions and permlsslve inferences in light of the reasonable doubt standard. Thecourt pointed out that the rule governing the constitutional validity of any presumption or Inference was that the presumption or inference “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the,ultinate facts beyond a reasonable doubt.” e, 442 U.S. at 156. The court madeclear, hwever. that the question of sufficiency of the evidence to support a conviction is, in most cases, aseparate question fron the propriety of instructing thejury that it maymakea certain inference. When a permissive inference Is not the only evidence on an element of an offense, the validity of the permissive inference is to be judged under a more-likely-than-not standard. Allen, 442 U.S. at 164-67. In .other vordrr, in such circumstancesrhcre must be a rational connection between the fact proved andthe fact inferred, and the latter must be more likely than not to flow from the formtr. Allen. 442 U.S. at 165. Tbe fact proved need not establish beyond a Gnable doubt the fsct inferred because the prosecution can rely on all of the evidenca presented to meet its burden of proving the issue beyond areasonabl.c: doubt. Raaxnontreev. Phelps. 6@5-P.2d i371, 1374n.2 (5th Cir. 1979:.

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The Suprema Court l l.so atatad in Allan that the validity of a oerminaive inference can cmlv be iudnada r------- - --~~------ ~-~ --~-I ~~ -~~1~ iarecord of a pariicular case* Allen, 442 U.S. at :L62-63; **MOSM V.**  State, 633 S.W.2d 585, 587 (Tat. Am. -Houston [14tt. Dist.] 1982). overrulad onother grounds In Davis v:- State. 658 i.W.Z’i 512 (Tex. Grim. App. 1983). UC&mot say whether the pcnsiasivc infc~rcnce l atablishcd by section 28.03(c) would wet tha more-likely-that.-not standard in every case In which that standard appllad. Courtcl in several other jurisdletlons. howaver, have tcatad permissible inferences similar to the one established by section 28.03(c) under the more-likely-than-not standard and have found. them to be valid in tha circumstances in vhich they were applied. See, e.g., sr v. Kriss. 654 P.2d 942 (Kan. 1982); State v. Curtis, 372A.2d 612 (1I.J. Super. Ct. App. Div. 1977). The briefs submitted to us fail to point out that the morelikely-than-not standard is appropriate only when the permissive inference “is not the so1.e and sufficient basis for a finding of guilt

.‘I Allen, 442 U.S. at 167. As WCsaid before, in such a case the fact Gd need not eistabllsh beyond areasonable doubt the fact inferred because the mmecutlon can **rely** on all of the evidence preientcd to meet Its Purim of proving th; issue beyond a reasonable doubt. Rawontrec v. Phe:az, 605F.2d 1371. 1374n.2 (5th Mr. 1979). If the facts giving rise to a permissive inference are the only evidence introduced -on an element-of an offensa, hovever , the facts provad must be sufficient to establish the element of the offense inferred beyond a reasonab’le doubt. Id. Othervise, there would be a violation of the constitutional requirement that the evidence be sufflc%ent to prova guilt beyond a reasonable doubt. Thelegal standard for determining whathar evidence is sufficient to support a criminal conviction is whether, after vleving the evidence in the light most favorable to the prosecution, any rational trier of fact could have: found the essentiil claments of-tha crime beyond a reasonable doubt. McGoldrick V. Stata, 662 S.W.Zd 573 (Tex. Grim. App. 1985); United St2taa **V.** Jackson, 700 F.2d 181. 185 (5th Mr. 1, cert. denied7 wu ’.S. 842 (1983). If it appears, as a matter of law, that a reisonable-minded jury- wst ncce&arily have had a reasonable doubt as to anyessential l lament of a crime. a convicrion cannot stand. United Strlt:asv. Bland, 653 F.2d 989. 995 (5th Cir.), cert. denied 454U.S. 105T (1981). The Fifth Circuit has held that a conspiracy conviction cannot stand on evidence that only places the defendant in “a climate of activity that reeks of something foul.” United States v. Jackson, 700 F.2d 181, 185 (5th Clr.), cert. denied 464U.S. 842 (1983). Wethink that description is appL:Lcablc to a situation in vhich the state attempts to convict someone of criminal mischief on evidence of tampering alone. Although the person responsible for paying for utility service obvtousl:r has a motive for tampering with a utility meter. in manycases he L:snot the only person vith a motive. Often

p. 2079Ronorable Gerald A. Fohn - Page 6 01-456)

other people receive the benefit of utility service and l haru the coat even if they are not beLog billed, and they also have a moclva for tampering with l meter.Vsndallm could also account for somemeter tampering. Wethink thet evidence of tampering omlywould be legally insufficient to aupport 4sconviction of someone aimply because he received benefit from the utility service andwasresponsible for the bill. Tour second questioc, la:

Tobe a felony offenae under section 28.03 of the Pens1 Code, must the lnterruptlon or impairment of wrvice be substantial? The degree of an offense under the criminal mischief statute depends on the amount of pecuniary loss involved. Penal Code 128.03(b). Regardless of the amount of pecuniary loss, however, the offense of criminal mischief Is athird degree felony if

the actor causw in whole or in part impairment or interruption transportation f” p%Z wi~‘~~i,onsir piEZE SUPPlY 8 or other public service. or diverts, or causes tobe diverted in whole, in part, or in any manner, including installation or removal of any device for such purpose, any public communications, public water, gas, or power supply; Penal Code 128.03(b)(4)!8’).
In your letter you #state, “[Tlhere Is apparently some dictum on the part of the courts !Eorthe proposition that such impairment or interruption, to qualify for afelony offense, mustbe ‘substantial.“’ Apparently you arc refwring to Williams v. State, 596 S.W.Zd 862 (Tex. Grim. App. 1980). That ease contains dictum regarding the relationship between sej:c:ion 28.03(b) (4)(B) and section 28.03(a) (2), which provides that a person commits an offtnsa if he “intantlonally or knovingly tampers vith the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person.” TheWilliams court wrote: --- Since impairment or interruption of public communications 11%

a felony of the third degree even if no pecunla:?! loss results, it-is apparent that Subsection (b: (,4)(B) was intended to be a type of

‘substantial inconvenience,’ which warranted greater pcnlllty. Id. at 865. Otherwise, WCfind no case that contains a statement zilar to the oneyou ruskabout.

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SUMVARY The combined affect of section 2.05 andsection 28.03(c) of the Texas Penal Codeia to establish a permlaslble infmence rather than a true presumption. Whenapermissive inference Is not the only evidence of an clament of an offense, the fact inferred must lx more-likely-than-not to follow from the facts Proved. Wherethe more-likely-thannot standard applies. the constitutional validity of a permissive Inference must be tested on a case-by-case basis. If tha permissive inference is the only evid,ence onanelement of anoffense, however, the facts proved must establish the fact inferred beyond a reasonable doubt. The permissive inferenx established by section 28.03(c) does not meet that standard.

JI M MATTOX Attorney General of Texas JACKHIGHTOWER First Assistant Attorney General UARY KELLER Executive Asslstant Attorxy General ROBERT

GRAY Special Assistant Attorney General RICKGILPIA Chairman, Opinion Committee Prepared by SarahWoelk Assistant Attorney General

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