Does anybody out there have a jury charge that contains the legal presumption aspect of this statute? Trying our first case under this statute any any help on the jury charge would be greatly appreciated.

Fax: 903-872-6858
Ph: 903-654-3045

Chris Martin
Navarro County

The abstract part of the charge should probably read something like this:

"You are instructed that our law provides that if it is shown a person possessed or transported:
(1)continue from 481.124 (b)
(2)
(3) ,
it may be presumed that the person had the intent to unlawfully manufacture the controlled substance methamphetamine. Such possession or transporting, however, merely raises a legal presumption that such person had the intent to unlawfully manufacture methamphetamine and the presumption may be rebutted.

You are charged further: (a)that the facts giving rise to the presumption must be proven beyond a reasonable doubt before you would be entitled to rely on the presumption, and (b)even though you may find the person had such intent, the State must still prove beyond a reasonable doubt each of the other elements of the offense charged. If you have a reasonable doubt as to the existence of a fact giving rise to the presumption, the presumption fails and you should not consider it for any purpose."

It is also recommended that this language then be applied to the specific facts of the case.

McClung has a section on legally presumed facts. We all look forward to the TDCAA (John Davis and Gail McConnell's)jury charge bank.

Defense lawyer here (who normally just lurks in the background).

The statute in question is obviously targeted at the Nazi labs. Question: Has anyone had the statute challenged because of the presumptions?

A presumption is unconstitutional unless "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." Leary v. United States 89 S.Ct. 1532, 1548.

The statute creates a presumption that a defendant that possesses anhydrous ammonia in an unathorized container intends to "unlawfully manufacture the controlled substance methamphetamine". Couldn't he just as likely intend to sell the anhydrous?

Just a thought. I'll go away now.

Martin I appreciate the assistance. The defendant decided 20 yrs in the pen was to big of a chance to take. He decided to fall to his knees and admit his wrong doings instead of being a test case for any of the defense attorneys lurking around this site. That is the one smart thing he has done in his criminal career.

Guess the presumption was valid, at least in his case.

Yes, Barry, other inferences are possible from the facts proved, that is why it is called a rebuttable presumption. But it is a logical tool, and Sandstrom has encouraged the use of such presumptions. So long as they do not eliminate the need for some logical proof of an element they will not be considered as contrary to the constitution. I suppose you make the same argument in any circumstantial evidence case? And just who do you think he would be intending to sell his anhydrous to?

Well, he could have been intending to sell it to Mr. Clean. My mother used to do her tough cleaning jobs w/ that ammonia, and not only did it annihilate (did I spell that right? I'm better with prepositions)those hard to remove stains, it also opened up every sinus within 5 miles. Of course, you did end up getting rid of the scum after all, didn't you? Heh, heh.

Mr. Green (alias continuance?) makes a point most prosecutors understand. The statute will likely be used only when the anhydrous is accompanied by ephedrine; lithium, phosphorous or iodine; or similar stuff (or some evidence of "finished product"). Arguably 504.001 is the more specific offense when only anhydrous is involved anyway (though actually 481.124(a)(1) is either a lesser included or parent offense of 504.001 when the presumption in (b)(1) is used as the proof of intent).