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Date: 09-22-2020
Case Style:
Christian Sauder v. The State of Texas
Case Number: 01-19-00239-CR
Judge: Evelyn V. Keyes
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Brian Marcus Middleton
Baldwin D. Chin
John J. Harrity III
Defendant's Attorney:
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Officer J. Edgar worked for the Harris County Constable’s Office for several
years and then worked for the Milano Police Department, located near College
Station. Around the end of 2014 or the beginning of 2015, Edgar met appellant
through a mutual friend who decided to introduce them because he thought they were
both police officers. Appellant has never been a police officer. Edgar’s friend
introduced appellant to Edgar as “Jacob Reed Miles,” and appellant also stated that
this was his name. Appellant told Edgar that he was employed as a reserve peace
officer for the Fort Bend County Sheriff’s Office, and he showed Edgar an
identification card “that resembled a police I.D.” and that stated “Fort Bend County.”
Edgar could not remember if this card stated “Miles” or “Reed” as the last name, but
he testified that it “definitely had Jacob for the first name.”
1 See TEX. PENAL CODE ANN. § 37.12(a).
3
Edgar continued meeting up with appellant and “a small group of police
officers that would go and hang out after work” approximately three or four times
per month. This group accepted appellant and had no reason to question who he was
because appellant had police identification, he was familiar with the Penal Code, and
he used police terminology. Edgar testified that the group met up in bars in the
Montrose area of Houston, which is located in Harris County. Appellant had a social
media account under the name “Jacob Miles” and that account had appellant’s
“pictures on it and pictures of when [appellant, Edgar, and their group of friends]
would go out to places.”
Edgar testified that he saw appellant wear a badge clipped onto his belt “[n]ot
all the time,” but perhaps “half the time” he saw appellant. He stated, “It was more
towards the end of the times that we were hanging out. Not at the very beginning.”
When the State asked Edgar how often he saw appellant wear a badge, Edgar stated:
It was towards the end. I’d say towards the end—beginning of—or
middle of 2015. I’m sorry. Middle of 2015 towards the end he always
would have it. Every time that we give each other—we would always—
everyone would, you know, give each other a hug and everything and
you can feel when—you can feel the badge. You can—most of the time
you would see it if the shirt got lifted up or something like that.
Edgar stated that he knew that what he felt was a badge because “it’s a second
nature” to police officers and that “when you give somebody a hug, you can feel
either a badge or something else that would be on their belt.” Edgar identified a
photograph of a badge, which stated “Fort Bend County Sheriff’s Office,” as the
4
badge he saw appellant wearing. Edgar stated that the badge was “an exact copy of
the Fort Bend County Sheriff’s badge. If not an actual badge.”
Edgar also testified that he had been to appellant’s house on one occasion, on
September 6, 2014. Edgar did not recall appellant’s address, but he knew that
appellant lived in Missouri City, Texas, which is in Fort Bend County. Edgar went
inside appellant’s house, and, while he was inside, he saw on the kitchen counter a
digital “encrypted radio” that can only be acquired from a police department, a
firearm that appeared to be police issue, and the badge he had seen appellant wearing
on other occasions.2 On cross-examination, Edgar stated that he almost always met
with appellant in Harris County and that he did not know if appellant was arriving
from his home in Fort Bend County or if he went home after they got together.
In September 2015, Edgar and appellant attended a funeral for a police officer
in Houston, and Edgar saw appellant’s badge on his belt. Appellant was wearing a
suit, instead of a dress uniform, and Edgar found that suspicious. Appellant said he
could not wear his dress uniform because it was torn or worn out, which Edgar also
considered strange because officers rarely wear their dress uniforms.
2 Edgar testified that he had also seen appellant with all three of these items—the
badge, the radio, and the gun—while eating lunch with appellant at a restaurant in
Houston. On that occasion, appellant had also been wearing a polo shirt with Fort
Bend County Sheriff’s Office on it.
5
Eventually, Edgar learned that appellant’s name was not “Jacob Miles” and
that he was not a police officer, and he confronted appellant about this via text
message. Edgar informed his commanding officer at the Milano Police Department,
who instructed him to write a report. Edgar did so, and he sent the report to the
Houston Police Department (HPD), the Harris County Sheriff’s Office, and, at the
direction of HPD, the Fort Bend County Sheriff’s Office. Edgar took possession of
two badges appellant had in his possession and he gave the badges to the Fort Bend
County Sheriff’s Office.3
Deputy S. Kitchens, with the Harris County Constable’s Office, testified that
he was also introduced to appellant, who gave his name as “Jacob Miles Reed,” by
a mutual friend. At the time they met, appellant said that he wanted to be a police
officer, but he later said that he was a licensed peace officer. Kitchens, appellant,
and others typically met at a bar in the Montrose area every Thursday night, and
appellant had a “deputy’s badge” that said Fort Bend County on it. Kitchens saw
appellant with this badge every time they got together, and appellant wore the badge
clipped to his belt, next to a firearm. Kitchens testified that, most of the time,
appellant would be coming from his home to the bar, and he stated that he knew this
3 On cross-examination, Edgar agreed that he could not say for certain whether the
badge that he collected from appellant was the same badge that he had previously
seen appellant wearing and in appellant’s house. He stated that the front of the Fort
Bend County badges do not have an identifying mark “that differentiates one from
the other.”
6
because appellant would text him and say that “he was home getting ready,
showering, getting dressed.” At one point, Kitchens sold appellant a firearm, but
when he learned appellant’s true identity, he took the gun back from appellant.
Lieutenant R. Grimmer, with the Fort Bend County Sheriff’s Office, received
two badges from Edgar, one of which was a Fort Bend County Sheriff’s Office
Deputy badge. Grimmer interviewed appellant, and appellant admitted that he had
had the badges in his possession. Grimmer testified that appellant was never
employed by the Fort Bend County Sheriff’s Office.
On cross-examination, Grimmer agreed that he never saw appellant in
possession of the badge in Fort Bend County and that the only person who reported
that appellant possessed the badge in Fort Bend County was Officer Edgar. He also
agreed that appellant “never admitted to displaying the badge in Fort Bend County.”
Grimmer also testified that, during his investigation, he learned that appellant
ordered the badge on September 30, 2014, and had it shipped to an address in
Houston, not to his home in Missouri City. He stated that appellant told him that he
had the badge for display, but Grimmer had never been to appellant’s home, so he
did not know if he kept a collection there.
On re-direct examination, Grimmer testified that appellant explained how he
obtained the badge and told him that he displayed it “[i]n his house and also on his
person.”
7
After the State rested, defense counsel moved for a directed verdict, arguing
that the State had failed to prove that venue was proper in Fort Bend County. Defense
counsel pointed to Edgar’s testimony that he saw the badge in appellant’s house in
Missouri City on September 6, 2014, but argued that this testimony was contradicted
by Grimmer’s testimony that appellant did not order the badge until September 30,
2014. The trial court stated, “[A]lthough the links to Fort Bend County may be weak,
a scintilla of evidence was presented by the State,” and the court denied the motion
for directed verdict.
The jury found appellant guilty of the offense of false identification as a peace
officer.
During the punishment phase, Deputy D. Turner, with the Fort Bend County
Sheriff’s Office, fingerprinted appellant in court, and the trial court admitted the card
reflecting these fingerprints. The State then showed Deputy Turner Exhibit 8, a
business records affidavit from the custodian of records for the Tarrant County
Sheriff’s Office, which was attached to a fingerprint card and mugshots identifying
appellant and purportedly taken in conjunction with a 2006 offense for injury to a
child. Defense counsel objected to Exhibit 8, arguing that, while it had a file stamp,
there was no proof that it had been on file with the court fourteen days before trial.
The trial court and counsel for the parties had the following exchange:
State: Incorrect. It was timely filed. You can see it on the
docket sheet.
8
The Court: May I see the State’s Exhibit 8, please? What was
the date of filing?
State: I’m double checking that before I—that would be
March 6, 2019. May we approach?
The Court: You may.
State: One second, Judge. I’m just clarifying this really
quick. March 6th, 2019, which would have been 20
days before trial [which began on March 26, 2019].
Attached to a final amended witness list to include
the fingerprint expert from the sheriff’s office that
we located at the jail.4 Per our conversation or email yesterday, the prints in the affidavit for
business record’s use were transported to the
sheriff’s office for assessment of viability and terms
of identification has been notices—filed on the 13th
day prior to trial rather than the 14th day and at any
rate a copy of both notice and business record use
and amended witness list have been included in this
e-mail. Sent March 6th. For all intents and purposes,
notice was given. It could have not been physically
filed on the 13th day because it was being identified
by this witness as a viable print as per standard
procedure.
Now, as for any other notice issues, I do not see that.
We are here solely because of this evidence here,
so.
Defense counsel: Judge, that’s not her objection. Objection is the
answer hasn’t been on file with the Court’s file 14
days prior to trial. Not that—
4 The appellate record includes a document entitled “Amended List of Witnesses for
Case In Chief/Punishment and Designation of Expert Witnesses” that was filed by
the State and file-stamped on March 6, 2019. This filing listed Deputy Turner as a
potential witness “regarding fingerprint analysis.” The record does not include any
attachments—such as Exhibit 8—to this filing. Exhibit 8 appears in the appellate
record, but there is no indication on this exhibit when it was served upon defense
counsel.
9
State: And this is our good cause exception.
Defense counsel: Not by e-mail. There’s no good cause exception.
You have it, or you don’t.
State: No.
The trial court overruled defense counsel’s objection and admitted Exhibit 8. Deputy
Turner compared the fingerprint card contained in Exhibit 8 with appellant’s
fingerprints taken in court and concluded that they matched.
The trial court also admitted, without objection, Exhibit 10, a certified copy
of an order of deferred adjudication from the 372nd District Court in Tarrant County
in 2009,
5
reflecting that appellant pleaded guilty to the offense of injury to a child
and that the trial court deferred adjudication of guilt and placed appellant on
community supervision for ten years. This order reflected that appellant was required
to register as a sex offender. Attached to the order of deferred adjudication were
appellant’s conditions of community supervision, as well as the indictment for that
case. The incident number listed on Exhibit 10 matched a number present on Exhibit
8, as did the date of offense, and identifying information about appellant, including
his name and date of birth.
The jury assessed appellant’s punishment at 180 days’ confinement and a
$2,000 fine. This appeal followed.
5 The order lists the “Date of Offense” as September 29, 2006, but the order was not
signed until November 24, 2009.
10
Admission of Evidence
In his first issue, appellant contends that the trial court erred by admitting,
during the punishment phase, a business records affidavit with attached evidence of
his prior criminal history because this evidence was not properly authenticated.
Specifically, appellant contends that the State did not establish that it served the
business records affidavit and the attached records pursuant to the requirements of
Rule of Evidence 902(10).
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016);
Henriquez v. State, 580 S.W.3d 421, 427 (Tex. App.—Houston [1st Dist.] 2019, pet.
ref’d). A trial court abuses its discretion when its decision falls outside the zone of
reasonable disagreement. Henley, 493 S.W.3d at 83. Before we may reverse the trial
court’s decision admitting evidence, we must find that the ruling was “so clearly
wrong as to lie outside the zone within which reasonable people might disagree.” Id.
(quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).
For evidence to be admissible, it must be authenticated, meaning that the
proponent of the evidence “must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” TEX. R. EVID. 901(a). Rule 902
provides that certain items of evidence are self-authenticating and “require no
11
extrinsic evidence of authenticity in order to be admitted.” TEX. R. EVID. 902. Rule
902(10) provides for the admissibility of
[t]he original or a copy of a record that meets the requirements of Rule
[of Evidence] 803(6) or (7), if the record is accompanied by an affidavit
that complies with subparagraph (B) of this rule and any other
requirements of law, and the record and affidavit are served in
accordance with subparagraph (A). For good cause shown, the court
may order that a business record be treated as presumptively authentic
even if the proponent fails to comply with subparagraph (A).
(A) Service Requirement. The proponent of a record must serve the
record and the accompanying affidavit on each other party to the
case at least 14 days before trial. The record and affidavit may be
served by any method permitted by Rule of Civil Procedure 21a.
TEX. R. EVID. 902(10)(A);6 TEX. R. EVID. 803(6) (setting out business records
exception to hearsay rule). Rule 902(10)(B) sets out suggested language for the
affidavit and provides that an affidavit is sufficient if it includes that language. TEX.
R. EVID. 902(10)(B). Rule of Civil Procedure 21a provides several permissible
methods for service of documents, including service in person, by mail, by
commercial delivery service, by fax, by email, through an electronic filing manager,
or “by such other manner as the court in its discretion may direct.” TEX. R. CIV. P.
6 Rule 902(10)(A) was amended in 2013. Prior to 2013, this rule provided that
business records could be self-authenticating if the records and a compliant affidavit
were filed with the trial court clerk at least fourteen days prior to the start of trial
and the other parties were given prompt notice of the filing. TEX. R. EVID.
902(10)(a) (amended 2013). The pre-2013 version of the rule also provided, “Notice
shall be deemed to have been promptly given if it is served in the manner
contemplated by Rule 21a, Texas Rules of Civil Procedure, fourteen days prior to
commencement of trial in said cause.” Id.
12
21a(a). “A certificate by a party or an attorney of record, or the return of the officer,
or the affidavit of any other person showing service of a notice shall be prima facie
evidence of the fact of service.” TEX. R. CIV. P. 21a(e).
To preserve a complaint for appellate review, the complaining party must
make the complaint to the trial court by timely request, objection, or motion that
states the grounds for the ruling sought with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the
context. TEX. R. APP. P. 33.1(a)(1)(A). The complaining party must “let the trial
judge know what [he] wants and why [he] thinks [he] is entitled to it,” and the party
must “do so clearly enough for the judge to understand and at a time when the trial
court is in a position to do something about it.” Bekendam v. State, 441 S.W.3d 295,
300 (Tex. Crim. App. 2014) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.
Crim. App. 1992)). Courts are not “hyper-technical” when determining whether
error was preserved, “but the point of error on appeal must comport with the
objection made at trial.” Id.
Here, during the punishment phase of appellant’s trial, the State offered
Exhibit 8, a business records affidavit attached to appellant’s fingerprints and
mugshots in connection with a 2006 injury to a child offense. Defense counsel made
the following objection: “Judge, I’m going to object to the Business Records
Affidavit. All it shows is that there is proof of a file stamp. Not that it has been on
13
file as per the code 14 days before trial.” The State argued that it had filed Exhibit 8
on March 6, 2019, twenty days before trial, and that it emailed an amended witness
list to defense counsel on March 6, with Exhibit 8 attached.
Defense counsel’s objection at trial was that admission of Exhibit 8 was
improper because the business records affidavit and the attached records had not
been on file with the trial court for fourteen days. This was a requirement of the pre2013 Rule 902(10), but it is not a requirement of the current Rule 902(10) in effect
at the time of appellant’s trial. Instead, the current version of Rule 902(10) requires
the proponent of a business record who seeks to make that record self-authenticating
with a business records affidavit to serve the record and accompanying affidavit on
the opposing party at least fourteen days before trial in a manner authorized by Rule
of Civil Procedure 21a. Defense counsel’s trial objection, however, did not mention
service of the business records and the accompanying affidavit. The entire discussion
before the trial court focused on when the exhibit was filed with the court, not on
when or how the State served the exhibit on defense counsel. The State mentioned,
“Now, as for any other notice issues, I do not see that.” Co-defense counsel
responded, “Objection is the answer hasn’t been on file with the Court’s file 14 days
prior to trial.” We conclude that appellant’s argument on appeal that the State did
not properly serve Exhibit 8 on defense counsel pursuant to Rule 902(10)(A) does
not comport with appellant’s objection made at trial, and therefore appellant failed
14
to preserve this complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A);
Bekendam, 441 S.W.3d at 300.
On appeal, appellant argues that he need not have objected on the basis of
improper service of Exhibit 8 in the trial court because issues concerning defects in
service can be raised for the first time on appeal. The case appellant cites for that
proposition, Arredondo v. State, 844 S.W.2d 869 (Tex. App.—Texarkana 1992, no
pet.), is inapposite. Arredondo was a civil asset forfeiture case, and the issue on
appeal was whether Arredondo was properly served with citation after the State
instituted forfeiture proceedings against him. Id. at 871. The State argued that
Arredondo “could have proven a lack of citation at the hearing for a motion on a
new trial,” but the Texarkana Court of Appeals, citing civil case law, held that “[i]t
is well settled, however, that a failure of service can be raised for the first time on
appeal.” Id. Proper service of citation implicates a trial court’s personal jurisdiction
over the defendant. See, e.g., Goss v. Sillmon, 570 S.W.3d 319, 322 (Tex. App.—
Houston [1st Dist.] 2018, no pet.) (stating that purpose of citation “is to give the
court proper jurisdiction over the parties, satisfy due process, and notify the
defendant she has been sued so that she may appear and defend herself”); see also
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (“Actual notice to a defendant,
without proper service, is not sufficient to convey upon the court jurisdiction to
render default judgment against him.”); Lee Hoffpauir, Inc. v. Kretz, 431 S.W.3d
15
776, 780 (Tex. App.—Austin 2014, no pet.) (concluding that defendant may raise
complaint of defective service of citation for first time on appeal).
This case, however, does not concern service of citation or any matter that
implicates the trial court’s jurisdiction over appellant or over the case itself. Instead,
appellant complains on appeal that, during the pendency of the case, the State failed
to serve him with business records and accompanying affidavit at least fourteen days
before trial, as required by Rule 902(10)(A). Failure to comply with this rule renders
the exhibit not self-authenticating, meaning that the State, if it did not comply with
the rule, would need extrinsic evidence, such as the live testimony of the custodian
of records, to authenticate the exhibit. See TEX. R. EVID. 902 (providing that items
of evidence listed in rule are “self-authenticating” and “require no extrinsic evidence
of authenticity in order to be admitted”). This is the type of complaint that should be
raised in the trial court and not for the first time on appeal. We conclude that
appellant was required to object in the trial court on the basis that the State did not
properly serve the records under Rule 902(10)(A) as a prerequisite to raising the
issue on appeal. Because appellant did not, he has failed to preserve the complaint
for appellate review. See TEX. R. APP. P. 33.1(a).
We overrule appellant’s first issue.7
7 Furthermore, even if appellant had preserved his complaint for appellate review and
the State failed to establish that it served defense counsel with the records contained
in Exhibit 8 at least fourteen days before trial, we agree with the State that any error
16
Venue
In his second issue, appellant contends that the State failed to establish, by a
preponderance of the evidence, that venue was proper in Fort Bend County. He
argues that the evidence establishes, instead, that venue was proper in Harris County,
but after the Harris County District Attorney’s Office declined to charge him, law
enforcement improperly engaged in forum shopping and pursued charges in Fort
Bend County, despite “weak” evidence that venue was proper in that county.
Generally, venue is proper in the county in which the defendant committed
the offense. TEX. CODE CRIM. PROC. ANN. art. 13.18. Venue, however, is not an
element of a criminal offense under Texas law. Schmutz v. State, 440 S.W.3d 29, 34
(Tex. Crim. App. 2014). “Although venue must be proven ‘at trial to establish a
in admitting the records would be harmless. The trial court admitted, without
objection, Exhibit 10, which was the order from the 372nd District Court of Tarrant
County placing appellant on community supervision for ten years for the offense of
injury to a child and requiring appellant to register as a sex offender. Exhibit 10 also
included appellant’s terms and conditions of community supervision. Even if, as
appellant argues on appeal, Exhibit 10 was “irrelevant and inadmissible” without
the fingerprints and mugshots contained in Exhibit 8, Exhibit 10 was admitted
without objection and became part of the evidence in the case. Exhibit 8 was,
therefore, not the only evidence of appellant’s criminal history admitted during the
punishment stage; the trial court also admitted Exhibit 10. We conclude that any
error in admitting Exhibit 8 did not have a substantial and injurious effect or
influence in determining appellant’s punishment and, therefore, was harmless. See
TEX. R. APP. P. 44.2(b); Hernandez v. State, 939 S.W.2d 665, 670–71 (Tex. App.—
El Paso 1996, pet. ref’d) (holding that error in admitting medical records when State
did not comply with previous version of Rule 902(10) was harmless, in part because
testimony properly admitted from witnesses covered same information as evidence
contained in medical records).
17
defendant’s [legal] status,’ that ‘does not convert’ venue into an ‘element[] of the
proscribed offense.’” Id. at 35 (quoting State v. Mason, 980 S.W.2d 635, 641 (Tex.
Crim. App. 1998)). In a criminal case, the State must prove venue by a
preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 13.17; Murphy v.
State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); Cox v. State, 497 S.W.3d 42,
56 (Tex. App.—Fort Worth 2016, pet. ref’d). Venue may be established by direct or
circumstantial evidence, and the jury may draw reasonable inferences from the
evidence to decide the issue of venue. Thompson v. State, 244 S.W.3d 357, 362 (Tex.
App.—Tyler 2006, pet. dism’d). When determining whether the State presented
sufficient evidence of venue, we view all of the evidence in the light most favorable
to the verdict and then determine whether a rational factfinder could have found that
venue was proper by a preponderance of the evidence. Dewalt v. State, 307 S.W.3d
437, 457 (Tex. App.—Austin 2010, pet. ref’d) (quoting Gabriel v. State, 290 S.W.3d
426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). Failure to prove venue
does not implicate the sufficiency of the evidence supporting conviction, and it does
not require an acquittal. Schmutz, 440 S.W.3d at 35.
Appellant was charged with the offense of false identification as a peace
officer. Penal Code section 37.12(a) provides:
A person commits an offense if:
(1) the person makes, provides to another person, or possesses a
card, document, badge, insignia, shoulder emblem, or other item,
18
including a vehicle, bearing an insignia of a law enforcement
agency that identifies a person as a peace officer or a reserve law
enforcement officer; and
(2) the person who makes, provides, or possesses the item bearing
the insignia knows that the person so identified by the item is not
commissioned as a peace officer or reserve law enforcement
officer as indicated on the item.
TEX. PENAL CODE ANN. § 37.12(a). The statute provides that it does not apply if “the
item was used or intended for use exclusively for decorative purposes or in an artistic
or dramatic presentation.” Id. § 37.12(b-1). There is no special venue provision
applicable to this offense; therefore, the general venue rule, that venue is proper in
the county in which the defendant committed the offense, applies. See TEX. CODE
CRIM. PROC. ANN. art. 13.18; Meraz v. State, 415 S.W.3d 502, 506 (Tex. App.—San
Antonio 2013, pet. ref’d).
The jury charge, which tracked the language of section 37.12(a) and the
information, instructed the jury to find appellant guilty if it found beyond a
reasonable doubt that, in Fort Bend County, appellant “did then and there
intentionally or knowingly possess a badge bearing an insignia of Fort Bend County
Sheriff’s Office that identified a person as a peace officer, and [appellant] knew that
he was not commissioned as a peace officer as indicated on the badge.”
The evidence at trial indicated that when appellant met up with his police
officer friends—and when they would see the Fort Bend County Sheriff’s Office
badge clipped to his belt—they would be at bars and restaurants located in Harris
19
County. Officer Edgar testified that he visited appellant’s house in Missouri City, in
Fort Bend County, on September 6, 2014, and that he saw the badge sitting on
appellant’s kitchen counter, next to a radio and a firearm. This evidence, however,
was contradicted by Lieutenant Grimmer’s testimony that appellant did not order the
badge until September 30, 2014, and that he had it shipped to an address in Houston,
and not to his house in Fort Bend County. Deputy Kitchens testified that he and
others met up with appellant at a bar every Thursday night and that appellant, who
had the badge clipped to his belt, typically arrived at the bar directly from his house.
Kitchens testified that appellant would text him prior to going to the bar and say that
“he was home getting ready, showering, getting dressed.”
Section 37.12(a) criminalizes, among other things, the possession of a badge
bearing the insignia of a law enforcement agency that identifies a person as a peace
officer or reserve officer when the person who possesses the badge knows that they
are not commissioned as a peace officer or reserve officer. This statute does not
require that the badge be displayed. There is ample evidence in the record that
appellant possessed and displayed the badge in Harris County. However, venue may
be established by direct or circumstantial evidence, and the jury may draw
reasonable inferences from the evidence to determine the issue of venue. See
Thompson, 244 S.W.3d at 362. The evidence presented was disputed, but the jury
could have concluded, based on the testimony that appellant lived in Fort Bend
20
County and that he would sometimes arrive at the bar in Harris County, carrying the
badge with him, from his house, that appellant possessed the badge in Fort Bend
County as well. Considering the evidence in the light most favorable to the verdict,
a rational factfinder could have found, by a preponderance of the evidence, that
venue was proper in Fort Bend County. See Dewalt, 307 S.W.3d at 457.
Even if, however, the State failed to present sufficient evidence showing that
venue was proper in Fort Bend County, we conclude that this error was harmless.
Failure to prove venue is non-constitutional error, and it is subject to a harm analysis
under Texas Rule of Appellate Procedure 44.2(b). Schmutz, 440 S.W.3d at 39. Under
Rule 44.2(b), a non-constitutional error that “does not affect substantial rights must
be disregarded.” TEX. R. APP. P. 44.2(b). A defendant’s substantial rights are
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Schmutz, 440 S.W.3d 39. When determining the
likelihood of whether the jury’s decision was adversely affected by the error, we
consider the entire record, including testimony, physical evidence, jury instructions,
the parties’ theories of the case, closing arguments, and voir dire, if applicable. Id.
Venue controls “only the geographic location where the case was to be tried”;
it does not “impact the district court’s jurisdiction,” nor is it “an element of any
charge or potential defense in this case.” Dewalt, 307 S.W.3d at 460; Thompson, 244
S.W.3d at 365. When considering whether a venue error caused harm to the
21
defendant, we consider whether the venue error inconvenienced the defendant,
whether the defendant had notice that he would be prosecuted in the improper
county, whether the venue allegation misled the defendant or prevented him from
presenting a defense, and whether there was a showing that the jury in the improper
county was impartial. Thompson, 244 S.W.3d at 365–66. Because venue is not an
element of a criminal offense, venue errors typically do not prejudice the jurors’
decision making process; even though venue might be improper, the jurors are “still
able to properly apply the law to the facts finding proof of all elements” of the
offense. Id. at 366.
Here, the information alleged that the criminal offense occurred in Fort Bend
County. Appellant had notice that the trial would occur in Fort Bend County. There
is no indication that he was misled by the venue allegations or that, due to the venue
allegations, he was somehow prevented from presenting a defense. There is also no
indication in the record that the Fort Bend County jury was not impartial. See
Thompson, 244 S.W.3d at 365–66.
Appellant argues, however, that the State, in initiating a criminal proceeding
against him in Fort Bend County, clearly engaged in forum shopping, rendering the
venue error harmful. In making this argument, appellant points out that the State first
sought charges in Harris County, but the Harris County District Attorney’s Office
did not accept the charges and declined to prosecute. The State then sought charges
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in Fort Bend County, and the Fort Bend County District Attorney’s Office agreed to
prosecute appellant. Appellant argues that this is “unambiguous” proof of harm
because the record shows that “on crossing into Fort Bend County, Texas, this case
went from the rejection of charges, to the maximum possible punishment.”
We disagree that the record demonstrates that the State engaged in
impermissible forum shopping. “Venue statutes function to ensure that jurors have
a natural interest in the case because it touched their community; to ensure that
prosecutions are initiated in counties that have some factual connection to the case,
thus minimizing inconvenience to parties and witnesses; to aid predictability in
judicial caseloads[;] and to prevent forum-shopping by the State.” Dewalt, 307
S.W.3d at 460; Thompson, 244 S.W.3d at 366 (“The reasonableness of the choice of
venue is in part determined by whether the criminal acts in question bear ‘substantial
contacts’ with that venue.”); see also Soliz v. State, 97 S.W.3d 137, 141 (Tex. Crim.
App. 2003) (“Texas venue statutes are a species of codified ‘substantial contacts’
jurisdiction; thus, for venue to lie, the defendant, his conduct, his victim, or the fruits
of his crime must have some relationship to the prosecuting county.”).
Here, both Harris and Fort Bend Counties have a “factual connection” to the
case. Appellant wore the badge while socializing with police officers in Harris
County, but he lived in neighboring Fort Bend County, and the badge itself purported
to be the badge of a Fort Bend County Sheriff’s Deputy. There is no indication in
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the record of why the Harris County District Attorney’s Office declined to accept
charges against appellant. Although appellant’s conduct has a greater connection
with Harris County, we cannot conclude that the connection with Fort Bend County
is so tenuous that, in bringing charges against appellant in Fort Bend County, the
State engaged in impermissible forum shopping. We therefore conclude that, even
if the State failed to prove by a preponderance of the evidence that venue was proper
in Fort Bend County, this error did not prejudice appellant’s substantial rights and
was therefore harmless.
We overrule appellant’s second issue.
Outcome: We affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: