Black v. State

645 S.W.2d 789, 1983 Tex. Crim. App. LEXIS 858

• Court: Court of Criminal Appeals of Texas
• Decided: January 18, 1983
• Docket: 66447
• Status: Published

Opinions

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction for possession of marihuana. A plea of not guilty was entered and a trial court found appellant guilty. Punishment was sixty days in the county jail, a $250 fine and court costs.

Four grounds of error have been advanced by the appellant. Due to the disposition of the first ground, discussion of the other grounds is unwarranted at this time. After the State had rested, the appellant made a timely and proper motion for acquittal premised upon the State’s failure to prove venue. Appellant contends the trial court erred by denying his motion to acquit.

On July 9,1979, two police officers of the Tyler Police Department observed appellant along with another man in a crouched position between two buildings. As the officers approached they observed appellant holding a plastic bag which appeared to contain marihuana and cigarette papers. A subsequent search of appellant produced a rolled marihuana cigarette from his pants pocket.

An information was filed charging appellant with the possession of a usable quantity of marihuana. The information alleged the offense occurred “in the County of Smith” as required in all informations by Art. 21.21(5), V.A.C.C.P. Appellant contends that the State failed to prove this element of the offense and without such proof the judgment does not conform to the pleadings and cannot be sustained.

A plea of not guilty puts in issue the allegations of venue, and the State must prove such allegations or a conviction will not be warranted. It is unnecessary for the defendant to put venue in issue by either special plea or negation of the allegation: venue must be proved as alleged. Art. 13.-17, V.A.C.C.P.

Generally it is noted that in criminal cases venue need only be proven by a preponderance of the evidence. Banks v. State, 530 S.W.2d 940 (Tex.Cr.App.1975). Proof of venue must be demonstrated by either direct or circumstantial evidence. Haynes v. State, 140 Tex.Cr.R. 52, 143 S.W.2d 617 (1940).

The record reveals that at trial the State presented testimony of two investigating officers, Ray Staggs and Jackié Ray. Both testified that they were employed by the Tyler Police Department. Staggs testified that he was “in the twenty-one hundred block of North Alfred that day.” Ray testified that he was “on duty” and assisted Staggs in appellant’s arrest. Beyond this testimony the record is devoid of either direct or circumstantial evidence relating to venue.

As a general rule courts will take judicial notice of the location of a particular town or city and that town or city is the county seat of such county. Ray, Texas Practice, Law of Evidence, Sec. 193 (1980).

“The Court will take judicial knowledge of the fact that Lubbock is the county seat of Lubbock County, Texas, and proof that the occurrence took place in the City of Lubbock is sufficient to establish jurisdiction [in the County Court of Lubbock County, Texas).” Moore v. State, 151 Tex.Cr.R. 542, 209 S.W.2d 192 (1949).

In the instant situation, however, there is no evidence whatsoever connecting the situs of the offense to Smith County, Texas, nor is there any evidence that the offense occurred in the county seat. The only evidence or record relating to venue is that the police officers testified that they worked for the Tyler Police Department. Furthermore, the reference to “Alfred Street” fails to demonstrate where the events took place. In a state the size of Texas it is beyond the pale of reasonability to expect to find only one street bearing such a common name.

When venue is made an issue in the trial court, failure to prove venue in the county of prosecution constitutes reversible error. Romay v. State, 442 S.W.2d 399 (Tex.Cr.App.1969). The State having failed to prove venue, the appellant’s motion for acquittal was improperly denied.

The judgment is reversed and the cause remanded.