Opinion
No. 07-18-00412-CR
07-16-2020
JOSE RODRIGO PAREDEZ, SR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 286th District Court Hockley County, Texas
Trial Court No. 16-07-8807; Honorable Pat Phelan, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Following a plea of not guilty, Appellant, Jose Rodrigo Paredez, Sr., was convicted by a jury of hindering a secured creditor in the amount of $2,500 or more, but less than $30,000. Punishment was assessed by the jury at two years confinement in a state jail facility, suspended in favor of five years of community supervision. Based on a stipulation by the parties, the trial court ordered $6,974.19 in restitution. By two issues, Appellant (1) challenges the legal sufficiency of the evidence to show he concealed the property and (2) asserts the trial court committed fundamental error that resulted in egregious harm by including a statutory mandatory presumption in the guilt-innocence charge to the jury. We affirm.
TEX. PENAL CODE ANN. § 32.33(b) (West 2016). As charged, the offense is a state jail felony. Id. at § 32.33(d)(4).
BACKGROUND
Appellant signed three promissory notes with the Hockley County School Employees Credit Union. Two of those notes were combined with security agreements protecting the credit union's interest in two vehicles purchased by Appellant. The security agreements authorized repossession of the vehicles if Appellant became delinquent on the notes and did not remedy the delinquency after receiving the required notices. One of the notes signed in October 2013 was for the purchase of a 2003 Chevrolet Silverado truck.
In May 2015, Appellant became delinquent on his payments on the note secured by the Chevrolet truck. Per standard procedure, the credit union collections manager sent Appellant a reminder, a past-due notice, and a certified letter requesting that he make his account current. When Appellant failed to do so, the manager, on behalf of the credit union, turned to the legal system to repossess the collateral.
The credit union manager testified that Appellant was delinquent on all three notes but this appeal focuses only on the note for the 2003 Chevrolet Silverado truck.
During the manager's cross-examination, she acknowledged that Appellant had advised the credit union that he was unemployed and was awaiting unemployment or disability checks. Months later, however, his notes remained delinquent.
In June 2015, a repossession order was issued to a "Mr. Bush" of Bush's Automotive. According to the manager's testimony, Mr. Bush reported that he was unable to locate the truck, and he never actually repossessed it. The manager further testified that she contacted Appellant five to six times regarding the location of the truck. Neither he nor his wife ever responded to her queries. Months later, in early October, the truck was delivered to Bush's Automotive stripped of its motor, transmission, and door handles. The exhaust had been placed in bed of the truck. The record is silent on who delivered the truck to Bush's Automotive.
The prosecutor inquired whether the manager had asked Appellant or his wife about the location of the truck. She answered that she had and was then asked, "And would they tell you?" (Emphasis added). She answered "No," and the prosecutor followed up with "Were they defiant in their unwillingness to tell you?" (Emphasis added). At that point, defense counsel objected to the use of the word "they" on hearsay grounds and because Appellant's wife was not a party to the proceedings. The objection was sustained and no request to disregard the previous question was made. However, because testimony including the word "they" had already been asked and answered without objection, any complaint about the use of the word "they" was waived. See Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).
Before the truck was delivered to Bush's Automotive, the credit union had made numerous attempts to obtain the return of the collateral. In July 2015, it filed a civil suit against Appellant together with an affidavit for sequestration. The same day suit was filed, the trial court issued a sequestration order on which the district clerk then issued a Writ of Sequestration. A sheriff's deputy served the documents on Appellant in August 2015, but Appellant failed to return the truck. The following month, the trial court granted the credit union's Motion to Compel Turnover, which Appellant also disregarded. In December 2015, the trial court issued a contempt order for Appellant's failure to comply with the turnover order. As a result of that action, Appellant was directed to pay his note or serve five days in jail. Finally, in February 2016, the trial court entered a default judgment against Appellant for $9,787.44 in the civil suit filed by the credit union. The total sum represented $6,974.19 for the principal on the note and the remainder for attorney's fees and costs.
According to the manager, despite all the notices and curative measures attempted, Appellant failed to remedy the delinquency. The manager made numerous attempts to discover the whereabouts of the truck by asking Appellant and his wife; however, they refused to disclose the location. Mr. Bush was unable to repossess the truck because initially, he could not find it and, later, once he found it, he could not recover it because it was "blocked in." According to the manager, Appellant was delinquent on the note for the truck in the amount of $2,544.45, and the resale value of the truck after it was delivered to Bush's Automotive was maybe as salvage.
There is no description in the record of the meaning of "blocked in." Nor is there a date of this attempted repossession.
Eventually, criminal charges were brought against Appellant for hindering a secured creditor. The offense of hindering a secured creditor may be committed by numerous methods; however, the only manner and means alleged by the State in this case was "conceal[ing] the property by hiding the motor vehicle, without the effective consent" of the credit union and "with intent to hinder enforcement" of the security agreement entered into with the credit union. Following a jury trial, Appellant was found guilty and sentenced to two years confinement. His sentence was suspended in favor of five years community supervision. The trial court also ordered restitution in the amount of $6,974.19, representing the balance of the principal, interest, attorney's fees, and costs due and owing on the note secured by Appellant's promissory obligation.
ISSUE ONE—SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is insufficient to support his conviction because the State failed to prove that he concealed the truck by "hiding" it, the only manner and means alleged in the indictment. The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In our review of the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
In doing so, we give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
Furthermore, in conducting our analysis, we compare the elements of the offense as defined by a hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the fact finder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326.
APPLICABLE LAW
A person who has signed a security agreement creating a security interest in property commits the offense of hindering a secured creditor if "with intent to hinder enforcement of that interest or lien, he destroys, removes, conceals, encumbers, or otherwise harms or reduces the value of the property." TEX. PENAL CODE ANN. § 32.33(b) (West 2016). "Conceal" is not defined by the statute nor elsewhere in the Texas Penal Code. This court has held that "conceal" means "to prevent disclosure or recognition of" or "to place out of sight." See Lujan v. State, No. 07-09-0036-CR, 2009 Tex. App. LEXIS 7121, at *6 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). Because "conceal" is not specifically defined, the fact finder may freely read it to have any meaning which is acceptable in common parlance. See Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Turning to a common definition, "hide" means to put out of sight, secrete. See MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/hide (last visited July 8, 2020).
ANALYSIS
In the indictment, the State only alleged one manner and means of committing the offense—concealing by "hiding." Appellant contends that by limiting itself to hiding as the only manner and means of concealment, the State failed to meet its burden of proof. He challenges the State's evidence on the issue of concealment as "skeletal, fragmentary, and self-contradictory."
The only witnesses to testify at trial on the issue of concealment were the credit union collections manager and a former Hockley County deputy who investigated the case before criminal charges were filed. Appellant did not testify, and no witnesses were presented on his behalf.
The collections manager testified that she began working on the delinquent note in May 2015. Efforts to locate and repossess the truck began in June; however, the truck was not recovered until October, six months after Appellant had begun receiving notices about the delinquent note. The manager further testified that between June and October, "[w]e couldn't locate it." Although she testified the truck had been devalued by being stripped, Appellant was not charged with hindering a secured creditor by destroying the collateral or reducing its value. Instead, he was charged only with concealing the truck by "hiding" it.
During the manager's cross-examination, she was asked why the credit union had engaged an attorney in July to initiate sequestration proceedings against Appellant. She answered that all efforts to have Appellant return the truck had been futile and their efforts to involuntarily repossess it were unsuccessful.
The evidence shows that, in early October 2015, during the period between the trial court's turnover order and its contempt order, the truck was delivered to Bush's Automotive in an inoperable condition. Mr. Bush had been attempting to repossess the truck since June, however, it could not be found. The truck was located during one of his attempts to repossess it at the address that was on file with the credit union. However, he was unable to repossess it because it was "blocked in." He further testified that, at that time, no one would answer the door when he rang the doorbell.
The State cites this court to Plummer v. State, No. 05-99-01826-CR, 2000 Tex. App. LEXIS 7695, at *11-12 (Tex. App.—Dallas 2000, no pet.) (mem. op., not designated for publication), for the proposition that a failure to disclose a truck's location for purposes of repossession is sufficient to find concealment under section 32.33 of the Texas Penal Code. During oral arguments, Appellant suggested we disregard Plummer as it is unpublished and of no precedential value. See TEX. R. APP. P. 47.7(a). However, this court and other courts have relied on the guidance and persuasiveness gleaned from unpublished opinions, regardless of their lack of precedential value. See Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd) (noting the effect of the change in Rule 47.7 that unpublished opinions are not binding but may serve as "an aid in developing reasoning that may be employed by the reviewing court"). See also Jackson v. State, Nos., 10-17-00333-CR, 10-17-00334-CR, 2020 Tex. App. LEXIS 1349, at *5 n.6 Tex. App.—Waco Feb. 19, 2020, no pet.) (mem. op., not designated for publication); Willis v. State, 589 S.W.3d 221, 225 n.4 (Tex. App.—Texarkana 2019, no pet.); In re State, 572 S.W.3d 264, 272 n.1 (Tex. App.—Amarillo 2018, orig. proceeding); Lowery v. State, 98 S.W.3d 398, 401 n.3 (Tex. App.—Amarillo 2003, no pet.).
In Plummer, the Fifth Court of Appeals found that "at a minimum," the defendant "refrained from disclosing or divulging the truck's location." Plummer, 2000 Tex. App. LEXIS 7695, at *12. The court found the defendant's conduct was sufficient evidence for a rational trier of fact to find he had violated section 32.33 of the Penal Code. Id.
Appellant urges this court to follow Anzaldua v. State, 696 S.W.2d 911 (Tex. Crim. App. 1985) (op. on reh'g), as precedent from the Court of Criminal Appeals. In Anzaldua, the State alleged the appellant "intentionally concealed the above described property by refusing to return said property upon demand at a time when a part of the debt secured by the aforesaid security was due and unpaid." Id. at 911. (Emphasis in original). The argument on appeal was that the charging instrument was "fundamentally defective" for failing to allege an offense because it alleged that "refusal to return" the property constituted concealing. Id. at 911. The Court agreed that the mere refusal to return property did not constitute "concealing." Id. at 912. The Court noted that the charging instrument did not "allege that appellant hid or secreted the property nor that he withheld the whereabouts of the property." Id. Ultimately, the Court noted that the intent of section 32.33 is to protect secured property for the benefit of the creditor and a mere "refusal to return" property would not harm or reduce the value of the property. Id. "Concealment . . . must entail some further act beyond mere refusal to deliver" the secured property. Id. at 913. (Emphasis added).
We distinguish Anzaldua from the case before us. Here, Appellant does not challenge the sufficiency of the charging instrument. Rather, he contends the evidence is insufficient to support the allegation that he concealed the truck by hiding it. As the Court noted in Anzaldua, concealment includes hiding, secreting, or withholding the whereabouts of the secured property. Id. at 912.
Here, the collections manager testified that she contacted Appellant at least five or six times to inquire about the location of the truck and that Appellant and his wife refused to cooperate. That refusal to cooperate, if believed by the jury, constitutes some evidence of "withholding the whereabouts of the secured property." The evidence also established that the truck was secreted from June until October and that Mr. Bush, despite efforts to locate the truck, was unsuccessful in repossessing it. In Anzaldua, where the evidence showed only that the debtor refused to return the collateral upon demand, there was no evidence of concealment that hindered the secured creditor. Id. To the contrary, in the underlying case, there was evidence of "some further act beyond mere refusal to deliver," including the evidence that the vehicle was "blocked in," thereby preventing its lawful repossession. The evidence also showed that a repossession order was issued but the truck could not be found. Also, despite the fact that an order of sequestration and an order to compel turnover were issued, Appellant failed to comply with those orders and the whereabouts of the truck remained unknown to the credit union. Therefore, a reasonable juror could have concluded that during that six-month period, Appellant "hid" the truck from the credit union. Thus, Anzaldua is distinguishable. And unlike in Plummer, the jury in the underlying case had more evidence of concealment than a mere refusal to disclose the location of the truck. So, while Plummer, as an unpublished opinion with no precedential value, may provide guidance, it does not influence this court's conclusion that the evidence supports the jury's verdict that Appellant concealed the truck from the credit union.
The jury could easily have inferred from the manager's testimony that the truck was concealed for six months. The evidence showed that Appellant "prevented disclosure" of the truck numerous times when asked about its location and that when it was found, it was a mere "shell." See Lujan, 2009 Tex. App. LEXIS 7121, at *6 (holding that "to prevent disclosure or recognition of" is concealing). Viewing the evidence in the light most favorable to the verdict and deferring to the jury, as we must, we conclude the evidence is sufficient to show that Appellant hindered a secured creditor by concealing the collateral. Issue one is overruled.
ISSUE TWO—JURY CHARGE ERROR
By his second issue, Appellant alleges the trial court erred by including a mandatory presumption in the jury charge without including the required instructions of section 2.05(a)(2) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 2.05(a)(2) (West 2011). He concedes he did not object to the charge but claims the court's error resulted in egregious harm. We agree it was error to omit the language of section 2.05(a)(2) but disagree that the error caused him egregious harm.
Appellate review of claimed jury-charge error involves a two-step process. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). See also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court must initially determine whether charge error occurred. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If so, the next step requires the reviewing court to analyze the error for the requisite harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
Preserved charge error requires reversal when a proper objection has been made and the reviewing court finds "some harm," i.e., error that is calculated to injure the rights of the defendant. Barrios v. State, 283 S.W.3pd 348, 350 (Tex. Crim. App. 2009). Where, as here, when the alleged error has not been preserved by an appropriate objection, Appellant can prevail only if he was egregiously harmed by an erroneous charge. Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). Jury charge error is egregious if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. Egregious harm is a "high and difficult standard" which must be borne out by the trial record. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
When reviewing harm resulting from charge error, an appellate court must determine harm in light of (1) the jury instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Anaya v. State, 381 S.W.3d 660, 665 (Tex. App.—Amarillo 2012, pet. ref'd) (citing Almanza, 686 S.W.2d at 174). Also, there is no burden of proof or persuasion in a harm analysis conducted under Almanza. See Anaya, 381 S.W.3d at 665.
APPLICABLE LAW
A person is presumed to have intended to hinder enforcement of a security interest or lien if, when any part of the debt is due, he fails to pay the part then due and does not deliver possession of the secured property to the secured party on demand. See TEX. PENAL CODE ANN. § 32.33(c). See also Johnson v. State, 07-09-00198-CR, 2010 Tex. App. LEXIS 5757, at *4 (Tex. App.—Amarillo July 21, 2010, no pet.) (mem. op., not designated for publication). When the evidence shows that the debtor has not made the required payment and does not deliver the property to the secured creditor after a demand is made, a statutory presumption is invoked that the debtor intended to hinder the secured creditor. Id. at *5-6.
"Presumptions and inferences are evidentiary devices and in criminal law parlance they are said to be either mandatory or permissive. The distinction between a mandatory presumption and a permissive presumption is determined by the effect that each has upon the evidence." See Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990). Section 2.05 of the Penal Code mandates further instructions when a presumed fact is submitted to a jury. The statute provides in relevant part as follows:
(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:
TEX. PENAL CODE ANN. § 2.05(a)(2). This statute alters a mandatory presumption into a permissive instruction. Failure to include such an instruction on a presumed fact gives rise to both statutory and constitutional error. See Webber v. State, 29 S.W.3d 226, 231 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).(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.
ANALYSIS
In the case before us, paragraph 4 of the charge instructed the jury as follows:
A person is presumed to have intended to hinder enforcement of the security interest or lien if, when any part of the debt secured by the security interest or lien was due, he failed:Appellant argues that the failure of the trial court to limit the "facially mandatory effect of the presumption" by failing to instruct the jury pursuant to section 2.05 of the Texas Penal Code presents a due process issue because it reverses the burden of proof.
a. to pay the part then due; and
b. if the secured party had made demand, to deliver possession of the secured property to the secured party.
In Ross v. State, 594 S.W.3d 566, 569 (Tex. App.—Amarillo 2019, no pet.), this court found that the trial court's failure to instruct the jury on a statutory mandatory presumption without also including an instruction pursuant to section 2.05(a)(2) of the Penal Code, where circumstantial evidence of the appellant's intent rested mostly on the predicate facts that gave rise to the presumption, was error. In the underlying case, paragraph 4 of the charge instructed the jury on the statutory presumption of section 32.33(b). Therefore, it was incumbent on the trial court to include an instruction pursuant to section 2.05(a)(2), and the failure to do so was error.
Having found error, we must now determine whether the error resulted in egregious harm due to Appellant's failure to object to the omitted instruction. First, we are obligated to assay the harm in light of the jury charge itself. Considering the charge in its entirety, it set forth the applicable law, included an application paragraph, and instructed the jury that the State was required to prove every element of the offense beyond a reasonable doubt. Those instructions, however, do not remedy the effect of including the mandatory presumption of section 32.33 without also including the instruction required by section 2.05(a)(2). Ross, 594 S.W.3d at 570. Therefore, the first factor weighs in favor of a finding of egregious harm.
Next, we review the state of the evidence. The manager invoked the statutory presumption by testifying as follows: (1) Appellant was in default on his payments on the truck and (2) he did not return the collateral to the credit union despite numerous demands to do so. There was a passing reference that he was unemployed and was awaiting unemployment or disability payments, but he still failed to remedy the delinquency during the six-month period in which the credit union was attempting to repossess the truck. There is no explanation as to why he concealed the truck from May 2015, until October 2015, when it mysteriously was delivered to Bush's Automotive in damaged or diminished value condition.
The manager testified that after she had exhausted the standard procedure of sending the required notices, she and Appellant had several phone conversations and also communicated by text messages in an attempt to make arrangements to resolve the delinquency. Appellant also visited with the credit union's chief executive officer while the manager was on vacation. Despite all of these efforts, the note remained in a delinquent status.
With the delinquency unresolved and Appellant's refusal to cooperate when asked about the location of the truck, the manager decided to pursue repossession. She testified without objection that Mr. Bush was unable to find the truck when he was first engaged to repossess it. The manager also testified that the credit union contacted a lawyer in July 2015, to pursue legal remedies because she "couldn't get - - seem to get the vehicle found or turned over." Mr. Bush did finally locate the truck at the address listed in the credit union's file; however, it was unrecoverable because access was obstructed and he could not get anyone to answer the door.
According to documents admitted into evidence without objection, Appellant was served with the sequestration order on August 3, 2015. He advised the deputy who served the papers that he could not turn over the truck because it was inoperable, but he assured the deputy he would voluntarily return it at a later date—statements indicating Appellant's control of the whereabouts of the truck. The truck was not delivered to Bush's Automotive until October 2015, and, by then, its value was severely diminished.
Appellant did not testify, nor did he present evidence to challenge the predicate facts within the context of section 32.33(c). Furthermore, Appellant did not present evidence to challenge the presumed facts. Instead, his trial strategy was to convince the jury that he did not "conceal" the truck, the alleged manner and means of committing the offense. The manager's testimony overwhelmingly supports that, despite considerable effort to discover its whereabouts, the truck remained hidden for months. Where, as here, the great weight of the evidence showed that (1) Appellant was delinquent on his note, (2) a demand for a return of the collateral was made numerous times by various methods, and (3) he failed to return the collateral, the trial court's failure to give the required instruction mandated by section 2.05(a)(2) did not result in egregious harm. See Felkins v. State, No. 07-17-00218-CR, 2019 Tex. App. LEXIS 4960, at *9 (Tex. App.—Amarillo June 24, 2019, no pet.) (citing Neely v. State, 193 S.W.3d 685, 688 (Tex. App.—Waco 2006, no pet.)). See also Lewis v. State, 151 S.W.3d 213, 224 (Tex. App.—Tyler 2004, pet. ref'd); Webber, 29 S.W.3d at 237; Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.—Texarkana 1996, pet. Ref'd); Maldonado v. State, 902 S.W.2d 708, 713 (Tex. App.—El Paso 1995, no pet.). That is to say, the state of the evidence weighs against a finding of egregious harm. Cf. Ross, 594 S.W.3d at 570-71 (finding egregious error where the defense strategy was to challenge the presumed facts of intent to harm or defraud another in fraudulent use or possession of identifying information).
The next factor we must consider is the arguments of counsel. Here, the prosecutor waived his opening argument, and defense counsel reserved his opening argument but never presented one. During final arguments, the prosecutor explained to the jury how an offense is charged with an "on or about date" and then summarized the evidence. He also read the statutory presumption to the jury and told the jury "you are free to presume that the Defendant's intention was to hinder the security interest." His statement is not incorrect; however, given the lack of further instruction by the trial court, it could have swayed the jury.
Defense counsel did not respond to the prosecutor's statement regarding the statutory presumption. Instead, he focused on the illegality of debtor's prisons. He argued that the credit union's objective was to have Appellant imprisoned for not paying his debt. He added that Appellant was not avoiding his debt but had been struggling financially. He insisted the State had failed to meet its burden of proof that Appellant was the individual who concealed the truck because the vehicle identification number (VIN) was never provided.
During rebuttal, the prosecutor agreed with defense counsel that there are no debtor's prisons but reiterated that it was the State's burden to show that Appellant concealed the truck from the credit union. The prosecutor conceded that the VIN was not provided but noted the manager had identified the truck when it was delivered to Bush's Automotive and also during her testimony with the photographs she had taken. The prosecutor concluded with a reminder to the jury that Appellant failed to pay his debt, the credit union made a demand for the return of the truck, and it was not returned for six months. In light of the arguments of counsel as a whole, we find they weigh only slightly in favor of a finding of egregious harm.
Finally, we look to the record as a whole for any other information to determine whether the charge error resulted in egregious harm. During voir dire, the State read the statutory presumption to the jury and explained that it applied to Appellant's intent to hinder the credit union and not to his intent on the manner and means of doing so, i.e., concealing the truck by hiding it. As such, we find the State's reading of the presumption was innocuous and weighs against a finding of egregious harm.
On the whole, our analysis of the Almanza factors, with an emphasis on the state of the evidence and the unchallenged presumed facts testified to by the manager, weigh against a finding of egregious harm caused by the trial court's error in failing to include an instruction under section 2.05(a)(2). The error did not affect the very basis of the case, nor did it deprive Appellant of a valuable right or vitally affect a defensive theory. On this record, we cannot say that Appellant suffered egregious harm. Accordingly, issue two is overruled.
We acknowledge that failure to give an instruction under section 2.05(a)(2) diminishes the State's burden to prove all the elements of the offense beyond a reasonable doubt and has due process implications. However, in this case, even if the instruction had been included in the charge, it would have been superfluous in light of the unchallenged evidence at trial of the presumptive facts. Additionally, paragraph 8 of the court's general charge clearly instructed the jury that the State was required to prove all the elements of the offense beyond a reasonable doubt. On appeal, appellate courts presume the jury followed the trial court's instructions in the manner presented. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.