State v. Weaver

982 S.W.2d 892, 1998 Tex. Crim. App. LEXIS 152, 1998 WL 796999
CourtCourt of Criminal Appeals of Texas
DecidedNovember 18, 1998
Docket893-97
StatusPublished
Cited by48 cases

This text of 982 S.W.2d 892 (State v. Weaver) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Weaver, 982 S.W.2d 892, 1998 Tex. Crim. App. LEXIS 152, 1998 WL 796999 (Tex. 1998).

Opinions

OPINION

McCORMICK, P.J.,

delivered the opinion of the Court

in which MANSFIELD, KELLER, HOLLAND and WOMACK, JJ„ joined.

Appellee was indicted in Harris County for theft of between $20,000 and $100,000. Pur[893]*893suant to Section 31.09 of the Texas Penal Code, the indictment aggregated into a single offense various thefts from 32 complainants occurring over about a one-and-one-half year period of time. The indictment alleged these thefts were “pursuant to one scheme and continuing course of conduct.” Some of the individual thefts occurred inside Harris County and some of them occurred outside Harris County. The trial court granted ap-pellee’s motion to sever the non-Harris County thefts from the indictment. The effect of this reduced the provable theft loss from a third degree felony to a state jail felony.

The Court of Appeals decided the trial court erred to grant appellee’s motion to sever because Section 31.09 creates “one offense for purposes of venue.” State v. Weaver, 945 S.W.2d 334, 336 (Tex.App. — Houston [1st Dist.] 1997). We have exercised our discretionary authority to review this decision.

We understand appellee to argue the Court of Appeals legislated from the bench by effectively construing Section 31.09 to create a special venue statute in conflict with the general venue provision of Article 13.18, V.A.C.C.P. Appellee claims this violates Article III, Section 45, of the Texas Constitution, which, appellee claims, implicitly grants a criminal defendant “a right to proper venue” and “makes the adoption of special venue statutes the Legislature’s job.” Appellee also claims the Legislature did not intend that Section 31.09 create “one offense for purposes of determining proper venue for prosecution.” Appellee further suggests that aggregating the non-Harris County thefts with the Harris County thefts for trial in Harris County is inconsistent “with deep roots in our legal history” as expressed in the Magna Charta, the Declaration of Independence and the federal constitution. The State claims the Court of Appeals’ decision is consistent with the general venue provision of Article 13.18 and the legislative intent of Section 31.09.

Section 31.09 clearly provides that several thefts “pursuant to one scheme or continuing course of conduct” may be aggregated and “considered as one offense.”1 Each individual theft and its elements aggregated under Section 31.09 is an element of the single offense created by Section 31.09.

The general venue provision of Article 13.18 provides that if “venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.”2 When several thefts are aggregated into a single offense under Section 31.09, the proper county for prosecution under the “plain” language of Article 13.18 is any county in which the individual thefts or any element thereof occurred. Cf. Wood v. State, 573 S.W.2d 207, 210-11 (Tex.Cr.App.1978) (under Article 13.18, when elements of an offense are committed in more than one county, venue may be established in either county). Applying the “plain” language of Article 13.18 to this case, Harris County is a proper venue for prosecution of all the thefts aggregated into the single offense alleged in the indictment.

This gives effect to the “plain” language of Article 13.18, does not conflict with Article III, Section 45, of the Texas Constitution, and does not interpret Section 31.09 as creating a special venue statute in conflict with Article 13.18. This also does not violate principles expressed in the Magna Charta, the Declaration of Independence and the federal constitution. See Magna Charta, Section 18 (“Assizes of novel disseisin, and of mort d’ancestor, and of darrien presentment, shall not be taken but in their proper counties”); Declaration of Independence (“history of the present King of Britain is a history of re[894]*894peated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over [the original thirteen] States” including transporting their citizens “beyond Seas to be tried for pretended offenses”); U.S. Const., Article III, Section 2 (trial of all crimes “shall be held in the State where the said Crimes shall have been committed”); U.S. Const, Amend. VI (in all criminal prosecutions accused shall have right to speedy and public trial by impartial jury “of the State and district wherein the crime shall have been committed”).

We also disagree with appellee’s contention that Section 31.09 does not create “one offense for purposes of determining proper venue for prosecution.” Appellee seems to claim that each theft aggregated under Section 31.09 must be treated as a separate offense for purposes of determining venue under Article 13.18. See Weaver, 945 S.W.2d at 335 (“appellee contends the State must still prove venue as to each theft under the aggregated theft statute”).

However, this conflicts with the “plain” language of Section 31.09 which expressly creates “one offense” and makes no express distinctions between trans-county aggregated thefts and single county aggregated thefts. This Court also has held that Section 31.09 creates one offense for purposes of severance, jurisdiction, punishment and limitations. See Graves v. State, 795 S.W.2d 185, 187 (Tex. Cr.App.1990); Wages v. State, 573 S.W.2d 804, 806 (Tex.Cr.App.1978). We decline to construe Section 31.09 differently for purposes of venue. Therefore, we decide Section 31.09 creates one offense for purposes of venue.

We also note this is consistent with the legislative history of Section 31.09. See Tex. Gov’tCd., Section 311.023(3) (in construing a statute, whether or not the statute is considered ambiguous on its face, courts may consider its legislative history). The 63rd Legislature intended to make few substantive changes to existing law when it adopted the 1974 penal code. See Acts 1973, 63rd Leg., p. 883, ch. 399, Section 1, eff. January 1, 1974; Hearings on SB 34 before the Senate Committee on Criminal Jurisprudence, 63rd Leg., (May 8, 1973); Debate on SB 34 on Senate Floor, 63rd Leg., (May 15, 1973); Hearings on HB 514 (the House substitute for SB 34) before the House Subcommittee on Criminal Jurisprudence, 63rd Leg., (March 12, 1973); Debate on HB 514 on House Floor, 63rd Leg., (May 18,1973). The main purpose of the 1974 penal code was to simplify and codify existing law into one code.

However, the 63rd Legislature with the support of the prosecution and defense bars intended to make several significant changes to then existing theft laws. See, e.g., Hearings on HB 514 (the House substitute for SB 34) before the House Subcommittee on Criminal Jurisprudence, 63rd Leg., (March 12, 1973) (Date Whitworth and Frank Maloney testifying). One significant change was the consolidation of various separately defined theft offenses such as theft by false pretext, conversion by a bailee, swindling by worthless cheek, etc.,3 into one offense that said “thou shalt not steal.” See, e.g., Debate on SB 34 on Senate Floor, 63rd Leg., (May 15, 1973); Debate on HB 514 on House Floor, 63rd Leg., (May 18, 1973).

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Bluebook (online)
982 S.W.2d 892, 1998 Tex. Crim. App. LEXIS 152, 1998 WL 796999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weaver-texcrimapp-1998.