inference presumption in Texas

2010App. 1988)); see also Oliver , 29 S.W.3d at 193 (stating that the "Court of Criminal Appeals has approved the inference of a waiver [of Miranda rights] from the totality of the circumstances in the situation where an oral confession contains a recitation of the article 38.22 warnings and the defendant indicates he understands his rights and proceeds without hesitation to participate in the interview").

2010App. 1988)); see also Oliver, 29 S.W.3d at 193 13 (stating that the “Court of Criminal Appeals has approved the inference of a waiver [of Miranda rights] from the totality of the circumstances in the situation where an oral confession contains a recitation of the article 38.22 warnings and the defendant indicates he understands his rights and proceeds without hesitation to participate in the interview”).

1985However, in the prosecution for either theft or burglary, to warrant such an inference or presumption of guilt from the circumstances of possession alone, such possession must be recent, must be unexplained, and must involve a distinct and conscious assertion of right to the property by the defendant. 638 S.W.2d at 214 , citing Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977) (emphasis added).

1985In Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977) the court said: An inference or a presumption of a defendant’s guilt of a burglary or of a theft sufficient to sustain a conviction may arise from the appellant’s possession of property stolen or taken in a recent burglary.

2019See Baxter, 425 U.S. at 333–34 (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” (emphasis added)); Gebhardt, 891 S.W.2d at 331 (“The [First] Amendment does not preclude the inference where the privilege is claimed by a party to a civil cause.” (citation omitted)).

2015See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (allowing adverse presumption because “the [Fifth] Amendment does not preclude the inference where the privilege is claimed by a party to a Civil cause.”) (citation omitted); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007) (“jury in this civil case was free to draw negative inferences from the Flournoys’ repeated invocations of the Fifth Amendment”); TEX.

2022Corp. v. Brown, 7 S.W.3d 820, 828 (Tex. App.—Texarkana 1999, no pet.)).

2012This Court has noted “proof of an irregularity coupled with grossly inadequate consideration, gives rise to an inference or presumption that the irregularity contributed to the low price.” Apex Fin., 7 S.W.3d at 827 (presumption can be rebutted).

2020EVID. 404(b)(1) (evidence of a crime is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character); see also Gigliobianco, 210 S.W.3d at 641 (court must balance tendency of evidence to suggest decision on an improper basis); Webb v. State, 36 S.W.3d 164, 181 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“In other words, proof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assault in general, and therefore was more likely to have

2013See Webb v. State, 36 S.W.3d 164, 181 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“In other words, proof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assaults in general, and, therefore, was more likely to have committed the sexual assault against Baird, an inference rule 404(b) strictly forbids.”).10 The evidence of extraneous offenses was not admissible for this purpose.

2017See Hancock, 400 S.W.3d at 70-71 ; see also Burbage v. Burbage, 447 S.W.3d 249, 262 (Tex. 2014) (jury could not reasonably infer that defamation caused cancellations at funeral home “when the cancellations could have occurred for any number of reasons”).

2016See id.; see also Burbage v. Burbage, 447 S.W.3d 249, 262 (Tex. 2014) (“the jury cannot reasonably infer that defamation caused the cancellations when the cancellations could have occurred for any number of reasons”).

2015Gold v. Gold, 145 S.W.3d 212, 213 (Tex.2004) (“[A] restricted appeal requires error that is apparent, not error that may be inferred ”).

2015Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (“[A] restricted appeal requires error that is apparent, not error that may be inferred.”).

2015App. 2002) (“Relevant evidence of a person’s bad character is generally not admissible for the purpose of showing that he acted in conformity therewith.”); Webb, 36 S.W.3d at 181 (“[P]roof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assaults in general, and therefore, was more likely to have committed the sexual assault against Baird, an inference rule 404(b) strictly forbids.”); Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim.

2015App. 2002) (“Relevant evidence of a person’s bad character is generally not admissible for the purpose of showing that he acted in conformity therewith.”); Webb, 36 S.W.3d at 181 (“[P]roof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assaults in general, and therefore, was more likely to have committed the sexual assault against Baird, an inference rule 404(b) strictly forbids.”); Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim.

2014See Appel v. Inspire Pharm., Inc., 428 Fed.Appx. 279, 282 (5th Cir.2011) (evidence employment terminated because employee could not perform her job duties due to medical complications resulting from pregnancy did not constitute direct evidence of discrimination).

2012See Appel v. Inspire Pharms., Inc., 428 Fed.Appx. 279, 282 (5th Cir.2011) (evidence that employee was terminated because she could not perform her job duties owing to medical complications that were result of pregnancy was not direct evidence of discrimination).

2010See Rocha v. State , 16 S.W.3d 1, 12 (Tex. Crim.

2009Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim.

2009Oliver , 29 S.W.3d at 193 (discussing Barefield and Garcia v. State , 919 S.W.2d 370, 387 (Tex. Crim.

2000Oliver argues Garcia v. State, 919 S.W.2d 370, 387 (Tex.Crim.App.1994) requires additional waiver language beyond the defendant’s acknowledgment that he understands his rights in order for a court to infer a defendant’s waiver.

2002See also Transport Concepts v. Reeves, 748 S.W.2d 302, 305 (Tex.App.-Dallas 1988, no writ) (holding no evidence supported medical expenses even though no findings of fact filed).

2002See also Transport Concepts v. Reeves , 748 S.W.2d 302, 305 (Tex. App .

1989Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim.App.1978).

1986Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim.App.1978).

1981In McBride, supra, the Court held: “Thus, the ultimate fact which the State had to prove, the possession of the contraband, could only be inferred from the proof of the minor facts of possession of marihuana by appellant’s companion, the proximity of the appellant to the conversation where the agreement for purchase was made, the statement of McBride to appellant,.‘Lets’s go get the stuff,’ followed by the departure of appellant and McBride in an automobile, their return a short time thereafter and the delivery of the contraband by McBride to the officer. ‘The fact that circumstances may stron

1973“The fact that circumstances may strongly point to a person accused of a crime does not relieve the court of the duty of charging the law of circumstantial evidence in a case where the question of guilt is an inference or presumption deducible from circumstances in evidence.” 31 Tex.Jur.2d, Instructions, § 122, p. 681; Haney v. State, Tex.Cr.App., 438 S.W.2d 580 .

1978In Crain v. State, Tex.Cr.App., 529 S.W.2d 774 , quoting from McKnight v. State, Tex.Cr.App., 399 S.W.2d 552 , the rule was stated as follows: “To warrant an inference or presumption of guilt from the circumstances alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” In the present case we hold that the evidence was insufficient “to warrant an inference or presumption of guilt from the circumstances alone of possession . . .” Although the possession was recent and evidently

1975Quoting from 5 Branch’s Ann.P.C., Section 2650, this Court stated the rule in McKnight v. State, 399 S.W.2d 552, 555 (1966), in this language: “ ‘To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.’ ” The later cases are in accord with this rule laid down in Branch.

1998But the court nonetheless concluded “the inference of waiver in [the 1981 version of] the Political Subdivisions Law is unavoidable,” id. at 297 , because section 3(a)(5) adopted the Anti-Retaliation Law unless “ ‘the city provides by Charter or ordinance for ultimate access to the district court for wrongful discharge,’” id. at 295 , and the court found “it is inconceivable that the Legislature intended to afford cities the option of either voluntarily waiving immunity by making a minimal remedy available by charter or ordinance, or suffering adoption of the Anti-Retaliation Law with no waive

1998But the court nonetheless concluded “the inference of waiver in [the 1981 version of] the Political Subdivisions Law is unavoidable,” id. at 297 , because section 3(a)(5) adopted the Anti-Retaliation Law unless “ ‘the city provides by Charter or ordinance for ultimate access to the district court for wrongful discharge,’” id. at 295 , and the court found “it is inconceivable that the Legislature intended to afford cities the option of either voluntarily waiving immunity by making a minimal remedy available by charter or ordinance, or suffering adoption of the Anti-Retaliation Law with no waive

1983See 5 Branch’s Ann. 2d ed., Sections 2537 and 2650. 10 Tex.Jur.2d 250, Burglary, Section 88; Crain v. State, 529 S.W.2d 774 (Tex.Cr.App.1975); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1974); Hayes v. State, 464 S.W.2d 832 (Tex.Cr.App.1971); McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966); Russell v. State, [ 86 Tex.Cr.R. 609 ] 218 S.W. 1049 (Tex.Cr.App.1920); Russell v. State, 86 Tex.Cr.R. 580 , 218 S.W. 1051 (1920).

1977See 5 Branch’s Ann. 2d ed., Sections 2537 and 2650. 10 Tex.Jur.2d 250, Burglary, Section 88; Crain v. State, 529 S.W.2d 774 (Tex.Cr.App.1975); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1966); Hayes v. State, 464 S.W.2d 832 (Tex.Cr.App.1971); McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966); Russell v. State, 218 S.W. 1049 (Tex.Cr.App.1920); Russell v. State, 86 Tex.Cr.R. 580 , 218 S.W. 1051 (1920).

2022Id. (citing Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam)).

2015Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) (clerk’s notation in record indicating the inability to locate documents that notice was sent could not be construed as affirmative evidence that trial court failed to provide notice.) 3 Not to mention their attempt for a third bite of the apple by filing the notice of restricted appeal, infra, on March 27, 2015. 13 Texas Rules of Civil Procedure 4.2 and Texas Rules of Civil Procedure 306(a)(5).

2022Although a causal connection must exist between the irregularity in the sale and the inadequate sales price, “proof of an irregularity coupled with grossly inadequate consideration gives rise to an inference or presumption that the irregularity contributed to the low price.” Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 587 (Tex. App.—Texarkana 2012, no pet.) (quoting Apex Fin.

2013Although a causal connection must exist between the irregularity in the sale and the inadequate price, “‘proof of an irregularity coupled with grossly inadequate consideration gives rise to an inference or presumption that the irregularity contributed to the low price.’” Basley, 373 S.W.3d at 587 (quoting Apex Fin.

2009Furthermore, in State v. Oliver, this court noted the “Court of Criminal Appeals has approved the inference of a waiver from the totality of the circumstances in the situation where an oral confession contains a recitation of the article 38.22 warnings and the defendant indicates he understands his rights and proceeds without hesitation to participate in the interview.” State v. Oliver, 29 S.W.3d 190, 193 (Tex. App.―San Antonio 2000, pet. ref’d); see also Barefield v. State, 784 S.W.2d 38, 40-41 (Tex. Crim.

2003Id. ; Oliver , 29 S.W.3d at 192 .

2008Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 *292 (Tex.1970); Wall, 894 S.W.2d at 798 .

1995Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex.1970).

1985In McLemore v. State, 638 S.W.2d 211 (Tex.App.—Houston [1st Dist.] 1982, no pet.) also cited by the appellant, this court held that: An inference or presumption of a defendant’s guilt of burglary or of a theft sufficient to sustain a conviction may arise from the appellant’s possession of property stolen or taken in a recent burglary.

1985However, in the prosecution for either theft or burglary, to warrant such an inference or presumption of guilt from the circumstances of possession alone, such possession must be recent, must be unexplained, and must involve a distinct and conscious assertion of right to the property by the defendant. 638 S.W.2d at 214 , citing Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977) (emphasis added).

1976"To warrant an inference or presumption of guilt from the circumstances alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant." See Jesko v. State, 458 S.W.2d 927 (Tex.Cr.

1976“To warrant an inference or presumption of guilt from the circumstances alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” See Jesko v. State, 458 S.W.2d 927 (Tex.Cr.App., 1970); Smith v. State, 518 S.W.2d 823 (Tex.Cr.App., 1975).