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Click here for the full text of this decision FACTS:In July 2002, San Antonio Police Detective Dan Sevino conducted a “salvage” inspection of Perfection Collision Center, the premises of which housed both an automobile body shop and Bad Boys Audio. Sevino characterized the body shop as a “family business” involving three brothers – Rudy (the owner), Jesse (the brother in charge), and Joe Naranjo (an employee). Sevino first encountered Jesse, who seemed “fine” with the inspection. But when Sevino started towards the back of the shop to inspect the vehicles, Rudy immediately tried to close the business and force the officers to leave the premises. In Sevino’s experience, this generally occurs when “there is something there they don’t want us to find.” Because “Rudy . . . was becoming a little bit out of control” and because the number of vehicles in the shop was beyond Sevino’s expectation, he called for additional officers and continued the investigation. Initially, Sevino found a custom-painted and stereo/CD equipped jet ski that had had its exterior identification number removed. When Sevino explained that he would have to disassemble part of the jet ski to get to the secondary identification number, Rudy again became upset. Ultimately, Sevino got to the secondary identification number; and Rudy provided title to the jet ski. However, as Sevino moved down the line of vehicles, he came across a trailer whose identification number had been ground down and painted over. When Sevino questioned Rudy, he said the trailer belonged to his brother Joe. Joe Naranjo admitted the trailer was his but was unable to produce a title. When asked how he acquired the trailer, Joe claimed he had purchased the trailer more than two years before the inspection for $1400 from an unknown individual at a mud race. In stark contrast to Rudy’s reaction when told the jet ski would be impounded if he did not produce a title, when Sevino told Joe that he was going to impound the trailer, Joe did not react at all. That struck Sevino as very unusual. Sevino impounded the trailer and several days later chemically raised the identification numbers and traced the trailer back to its original owner, William Weeby, who had reported the trailer stolen approximately one year earlier. Weeby further identified the trailer as his by some damage to the rear end, which Sevino found on the impounded trailer in a subsequent inspection, and by a yellow pin stripe, which Sevino also found on the impounded trailer after applying some paint remover. Weeby later inspected the impounded trailer, identified it as his stolen trailer, and provided the title. Thereafter, Sevino advised Joe Naranjo in a telephone call that it appeared the trailer was in fact stolen and asked Joe to come in and give a more detailed statement regarding his purchase of the trailer.When Naranjo refused to answer any questions or otherwise cooperate with the investigation, Sevino scheduled a seizure hearing and notified both Weeby and Naranjo by certified mail, return receipt requested. Only Sevino and Weeby attended. As a result of the hearing, Weeby was awarded possession of the trailer. Naranjo was charged with theft of the trailer by appropriation, the elements of which are: “(1) a person, (2) with the intent to deprive the owner of property, (3) appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another.” Franklin v. State, 659 S.W.2d 831, 833 (Tex. Crim. App. 1983) (citing Dennis v. State, 647 S.W.2d 275 (Tex. Crim. App. 1983)); see Tex. Pen. Code Ann. �� 31.03(a)-(b)(1)-(2) (Vernon Supp. 2005). At trial, it was undisputed that Naranjo was in possession of a stolen trailer. The only disputed issue was whether he knew when he acquired the trailer that it had been stolen by another. As a general rule, to prove a defendant knew he possessed stolen property, the State must prove not just “knowledge that would have indicated to a reasonably prudent man that the property was stolen” but “actual subjective knowledge.” There was no evidence that, when Naranjo purchased the trailer, he obtained “a certificate of authority, sales receipt, or transfer document . . . , or a certificate of title.” The jury found Naranjo guilty; and the trial court convicted him of theft by appropriation and sentenced him to two years in prison, probated. HOLDING:Reversed and remanded. Naranjo argues the trial court erred in instructing the jury on the Texas Penal Code �31.03(c)(6)(B) presumption because there is insufficient evidence of the evidentiary fact from which the presumption of the elemental fact of knowledge flows, i.e., he was “an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage.” The court agrees. The only evidence of Naranjo’s status at Perfection Collision is that he was an employee; and there is no evidence that in his capacity as an employee of Perfection Collision he was responsible for or had knowledge of, directly or indirectly, the record keeping required by �31.03(c)(6)(B). Since Naranjo objected to the trial court’s submission of the �31.03(c)(6)(B) presumption, he need only show “some harm” to obtain reversal. This standard is clearly met here since submission of the presumption permitted conviction without proof of the specific element to which the presumption applied Naranjo’s actual subjective knowledge when he acquired the trailer that it was stolen. Even if the trial court was authorized to submit the �31.03(c)(6)(B) presumption, its submission was fatally flawed because it failed to inform the jury that it was required to find the evidentiary fact (Naranjo was “an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or other form of salvage”) beyond a reasonable doubt before it was authorized to presume the elemental fact (Naranjo had actual subjective knowledge that the trailer was stolen). Pursuant to Bellamy v. State, 742 S.W.2d 677 (Tex. Crim. App. 1987), the court holds the trial court’s failure to instruct the jury pursuant to Texas Penal Code �2.05(a)(2)(A) “that the facts giving rise to the presumption must be proven beyond a reasonable doubt” constitutes error. Also pursuant to Bellamy, the court holds the “egregious” nature of this error is “manifest.” Usually charge error mandates reversing the judgment and remanding the cause for a new trial. But Naranjo argues he is entitled to an acquittal because, absent the improper presumption, there is legally insufficient evidence to establish that he knew the trailer was stolen. The evidence to support a finding that Naranjo had actual subjective knowledge when he acquired the trailer that it was stolen is slight, the court states. But, considering all the relevant facts and the reasonable inferences they yield, the court holds this slight evidence is legally sufficient to support a finding of actual knowledge. Accordingly, Naranjo is not entitled to an acquittal. OPINION:Sarah B. Duncan, J.; Duncan, Angelini and Speedlin , JJ.

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