permissive presumption in Texas

2015A permissive presumption, on the other hand, remains constitutional because it “allows, but does not require, the trier of fact to infer the elemental fact or ultimate fact from the predicate evidentiary fact or facts.” Id. at 931 n.5 (quoting Willis v. State, 790 S.W.2d 307, 310 (Tex. Crim.

2015In overruling the appellant’s complaint, the Texas Court of Criminal Appeals held that “notwithstanding the improper introductory language in the charge under consideration, [because of the incorporation of the language of Section 2.05] a 10 reasonable juror would understand that he or she was free to accept or reject the presumption making it a permissive presumption.” Id. at 311 .

2016Appellant also points to case law holding a party challenging the validity of a permissive presumption may' succeed by demonstrating' it is invalid “as applied to him.” Willis , 790 S,W.2d at 311 (quoting Allen , 442 U.S.' at 157, 99 S.Ct. 2213 ).

2016In Allen,'’ the Supreme Court noted that a permissive presumption affects the application of the beyond a reasonable doubt standard “only if, under the circumstances of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference.” 442 U.S. at 157, 99 S.Ct. 2213 .

2024However, that recognition was followed by: “[h]owever, the jury charge did not include an instruction pursuant to Texas Penal Code § 2.05, which effectively converts a mandatory presumption into a permissive presumption.” 3 Garrett, 220 S.W.3d at 931 .

2015A permissive presumption, on the other hand, remains constitutional because it “allows, but does not require, the trier of fact to infer the elemental fact or ultimate fact from the predicate evidentiary fact or facts.” Id. at 931 n.5 (quoting Willis v. State, 790 S.W.2d 307, 310 (Tex. Crim.

2016See also Bellamy, 742 S.W.2d at 682 (quoting a test asking whether “it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”) (citation omitted).

2015See Garrett, 220 S.W.3d at 931 n.5 (permissive presumptions not unconstitutional); Bellamy, 742 S.W.2d at 682 (presumption is deemed permissive when jury charge incorporates language of Texas Penal Code Section 2.05).

2012Id; Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.–Beaumont 2001, no pet.) (holding there is no abuse of discretion in failing to hold a permissive hearing under Chapter 14 of the Civil Practice and Remedies Code when an inmate has failed to demonstrate there is evidence he would have presented had a hearing been held).

2012Id; Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App. - Beaumont 2001, no pet.) (holding there is no abuse of discretion in failing to hold a permissive hearing under Chapter 14 of the Civil Practice and Remedies Code when an inmate has failed to demonstrate there is evidence he would have presented had a hearing been held).

2007See Garrett , 159 S.W.3d at 721 .

2007See Garrett, 159 S.W.3d at 721 .

2005See id.

2005See id.

2016Garrett, 220 S.W.3d at 931 n.5; Tottenham v. State, 285 S.W.3d 19, 31 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

2013However, the State’s closing argument may convert a mandatory presumption into a permissive presumption if it “inform[s] the jury that the presumption could, in some circumstances, not apply.” Tottenham, 285 S.W.3d at 31 .

2025Exch., 98 S.W.3d 227, 242 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.); see also In re County of Galveston, 211 S.W.3d 879, 882 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (“mandatory venue provisions control over permissive venue provisions”).

2025Exch., 98 S.W.3d 227, 242 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.); see also In re County of Galveston, 211 S.W.3d 879, 882 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (“mandatory venue provisions control over permissive venue provisions”).

2022See id. “[A]djudicative facts are those to which the law is applied in the process of adjudication.” Thatcher v. State, 615 S.W.3d 333 , 337 (Tex. App.—Amarillo 2020, no pet.) (quoting In re Graves, 217 S.W.3d 744, 750 (Tex. App.—Waco 2007, orig. proceeding)).

2022Dist., 388 S.W.3d 775, 780 (Tex.App.- -Houston [1st Dist.] 2012, no pet.) (noting that some school districts had released information pertaining to “use of force,” which fell within the permissive exception of section 552.108 of the PIA, but that this did not require other school districts to follows suit). 12 C.

2021App. 1989) (possession of firearm used to protect drugs and facilitate their possession). 12 See Son Anh Chu, 988 F.2d at 985 (referring to the defendant having “all the tools of the trade”). 13 See Butler, 249 F.3d at 1101 (vehicle’s sole occupant spontaneously admitting, “I messed up”). 14 See United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (upholding use of a permissive instruction that told the jury that it may, but is not required to, draw an inference about the defendant’s knowledge of the marijuana stored in his truck based on his operation of the vehicle where the defen

2021App. 1989) (possession of firearm used to protect drugs and facilitate their possession). 12 See Son Anh Chu, 988 F.2d at 985 (referring to the defendant having “all the tools of the trade”). 13 See Butler, 249 F.3d at 1101 (vehicle’s sole occupant spontaneously admitting, “I messed up”). 14 See United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (upholding use of a permissive instruction that told the jury that it may, but is not required to, draw an inference about the defendant’s knowledge of the marijuana stored in his truck based on his operation of the vehicle where the defen

2021App. 1989) (possession of firearm used to protect drugs and facilitate their possession). 12 See Son Anh Chu, 988 F.2d at 985 (referring to the defendant having “all the tools of the trade”). 13 See Butler, 249 F.3d at 1101 (vehicle’s sole occupant spontaneously admitting, “I messed up”). 14 See United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (upholding use of a permissive instruction that told the jury that it may, but is not required to, draw an inference about the defendant’s knowledge of the marijuana stored in his truck based on his operation of the vehicle where the defen

2021See Webber v. State, 29 S.W.3d 226, 231 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Willis, 790 S.W.3d at 310).

2018Ramsay v. Texas Trading Co., 254 S.W.3d 620, 629 (Tex.App.—Texarkana 2008, pet. denied); Mabon Ltd., 29 S.W.3d at 297 .

2016Code § 92.006(f) (a permissive exception to section 92.006(c)'s general prohibition against waiver of the landlord's repair duties and tenant’s remedies): Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 372 (Tex.2001) (observing that the specific conditions "resemble those tenant-caused conditions which a landlord [otherwise] has no [statutory] duty to repair, or pay to repair”). .

2016Instructions pursuant to section 2.05(a)(2) of the Texas Penal Code—which require the jury to be instructed on the permissive nature of any statutory presumption favorable to the State and how the presumption relates to the State’s burden of proof—convert a mandatory presumption into a permissive presumption.3 Id. at 931; Ramirez-Memije v. State, 466 S.W.3d 894, 897 (Tex. 3 Section 2.05(a)(2) of the Texas Penal Code provides: (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 appl

2015Heller v. Doe, 509 U.S. 312, 319 (1993).

2015Jimenez v. State, 419 S.W.3d 706, 717 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

2013This is an instance in which the jury might rationally reject the presumption just as easily as accepting it, but they were not informed that they could do so. 5 Francis, 471 U.S. at 313-25 ; Sandstrom v. Montana, 442 U.S. 510, 524 (1979); Ulster County Court v. Allen, 442 U.S. 140, 157-63 (1979); see also Ward v. State, 72 S.W.3d 413, 419 (Tex. App.–Fort Worth 2002, no pet.) (discussing the constitutional distinction between mandatory presumptions and permissive inferences). 6 Francis, 471 U.S. at 314-15 . 7 Id. at 315 . 8 Id.

2013That language informs the jury that the presumption is merely permissive–the jury may accept and apply it if the State proves the underlying facts beyond a reasonable doubt or it may reject the presumption as inapplicable in a particular case.4 3 See Francis v. Franklin, 471 U.S. 307, 314-15 (1985) (a mandatory presumption violates the Due Process Clause if it relieves the government of the burden of persuasion on an element of the offense). 4 In this case, for example, a reasonable jury might well reject use of the permissive presumption because, although evidence supported a finding that app

2013This is an instance in which the jury might rationally reject the presumption just as easily as accepting it, but they were not informed that they could do so. 5 Francis, 471 U.S. at 313-25 ; Sandstrom v. Montana, 442 U.S. 510, 524 (1979); Ulster County Court v. Allen, 442 U.S. 140, 157-63 (1979); see also Ward v. State, 72 S.W.3d 413, 419 (Tex. App.–Fort Worth 2002, no pet.) (discussing the constitutional distinction between mandatory presumptions and permissive inferences). 6 Francis, 471 U.S. at 314-15 . 7 Id. at 315 . 8 Id.