Opinion
Nos. 05-04-00535-CR, 05-04-00536-CR
Opinion Filed July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law #3, Collin County, Texas, Trial Court Cause Nos. 003-86333-03 003-83715-03. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Appellant appeals two convictions for refusal to execute the release of a fraudulent lien. After finding appellant guilty, the jury assessed punishment at a $1 fine in each case. In a single point of error, appellant contends the statute upon which he was convicted contains an unconstitutional presumption. For the following reasons, we affirm the trial court's judgments. Appellant was charged by information with violating section 32.49 of the penal code which provides that it is an offense if a person, with intent to defraud or harm another, fails to release a fraudulent lien. See Tex. Pen. Code Ann. § 32.49 (Vernon 2003). A person who fails to release a fraudulent lien within twenty-one days of being notified of the fraudulent lien is presumed to have had the intent to harm or defraud another. See id. In this appeal, appellant contends that the presumption provided for in section 32.49 violates his due process rights because it relieves the State of its burden to prove an element of the offense beyond a reasonable doubt. Appellant concedes the presumption provided for in section 32.49 is a "permissive presumption." A permissive presumption allows, but does not require, a trier of fact to find an elemental fact from certain basic facts. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157 (1979). When challenging a permissive presumption, the defendant must demonstrate it is not valid as specifically applied to him. Id. A permissive presumption is only unconstitutional if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference. Id. In making this determination, we must view the record as a whole. Bellamy v. State, 742 S.W.2d 677, 682-83 (Tex.Crim.App. 1987). Because the presumption in this case is permissive, to prevail, appellant would have to show the statute is unconstitutional as applied to him. For us to review such a complaint, we would be required to review the record as a whole. See, e.g., Ulster, 442 U.S. at 163. However, we have no reporter's record before us because appellant, who is not indigent, has not made arrangements to pay the reporter's fee. See Tex.R.App.P. 37.3(c). Under these circumstances, appellant cannot demonstrate the statute is unconstitutional. We overrule appellant's sole point of error. We affirm the trial court's judgment.