Judon Domitrian Webster v. The State of Texas--Appeal from 71st District Court of Harrison County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00085-CR
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JUDON DOMITRIAN WEBSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 07-0048X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

A Harrison County jury found Judon Domitrian Webster guilty of possession of less than one gram of a controlled substance (cocaine) and of tampering with physical evidence (for trying to swallow the cocaine). See Tex. Health & Safety Code Ann. 481.115 (Vernon 2003); Tex. Penal Code Ann. 37.09(a) (Vernon Supp. 2007). Webster raises three issues on appeal: (1) that the sentences are a disproportionate punishment and (2) that the evidence was legally and factually insufficient to support venue in Harrison County.

(1) Disproportionate Sentencing Was Not Preserved

Webster was sentenced to two years' confinement for possession, a sentence within the applicable range of 180 days to two years. See Tex. Health & Safety Code Ann. 481.115(b); Tex. Penal Code Ann. 12.35(a) (Vernon Supp. 2007). Webster was sentenced to ten years' confinement for tampering, a sentence within the applicable range of two to ten years. See Tex. Penal Code Ann. 12.34 (Vernon 2003), 37.09 (Vernon Supp. 2007). Webster contends the sentence imposed by the trial court was disproportionate to the offense, citing Solem v. Helm, 463 U.S. 277 (1983), and Davis v. State, 905 S.W.2d 655 (Tex. App.--Texarkana 1995, pet. ref'd).

To preserve such a disproportionate sentencing complaint for appellate review, Webster must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, or the complaint must be apparent from the context. See Tex. R. App. P. 33.1(a)(1); Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Williams v. State, 191 S.W.3d 242, 262 (Tex. App.--Austin 2006, no pet.) (claims of cruel and unusual punishment must be presented in timely manner); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court that sentences were cruel and unusual waived claim of error for appellate review). We have reviewed the record of the trial proceeding. No relevant request, objection, or motion was made. And, while this Court has held that a motion for new trial is an appropriate way to preserve this type of claim for review, see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.), Webster did not file a motion for new trial. Webster has not preserved such an issue for appeal.

(2) Venue in Harrison County Is Supported by Sufficient Evidence

Webster asserted, at trial during closing argument, that the State did not prove jurisdiction or that the offenses occurred in Harrison County. He re-urges the venue issue on appeal.

If there is no specific statute governing the venue of an offense, "the proper county for the prosecution of offenses is that in which the offense was committed." Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). The State must prove venue by a preponderance of the evidence. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005).

In a legal-sufficiency review of a venue determination, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged. Duvall v. State, 189 S.W.3d 828, 830 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Vanschoyck v. State, 189 S.W.3d 333 (Tex. App.--Texarkana 2006, pet. ref'd). A factual sufficiency review of the evidence traditionally, under the reasonable doubt standard, determines, after reviewing all the evidence in a neutral light, whether the evidence supporting the verdict is outweighed by the great weight and preponderance of the evidence or is so weak that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Here, the burden on the State is only to prove the venue facts by a preponderance of the evidence, rather than the beyond a reasonable doubt standard. Evidence sufficiently establishes venue if "from the evidence the jury may reasonably conclude that the offense was committed in the county alleged." Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964).

Venue may be established by direct or circumstantial evidence. Duvall, 189 S.W.3d at 831; Sixta v. State, 875 S.W.2d 17, 18 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

At trial, the State presented the testimony of C. J. Boyd that he was working in his capacity as an officer of the Marshall, Texas, police department on September 23, 2006, when he stopped Webster for a traffic violation. Officer Boyd testified that he observed Webster leave the Burnett Hotel near the intersection of South Washington and Pinecrest, cross Pinecrest to the Fina Station, then head eastbound on Pinecrest at night without his headlights on. Boyd stopped Webster in the 400 block of Pinecrest. During the stop at this location, Boyd found in Webster's possession a bagged substance later determined to be cocaine. Also at this location, Boyd placed the bagged cocaine on the car trunk while preparing to handcuff Webster. While getting the handcuffs, Boyd noticed the cocaine had disappeared. On searching Webster, again at the same location, Boyd found the bag of cocaine in Webster's mouth. Boyd stated he transported Webster to the Marshall Police Department and then the Harrison County jail. The jury then saw the in-patrol-car videotape of the incident. Boyd never testified that the various locations about which he testified were in the City of Marshall or in Harrison County.

The State also presented the testimony of Marshall Police Department canine officer Glen Stone that he was working in that capacity September 23, 2006, as backup to Boyd in searching for the hidden cocaine bag. Stone did not testify to the location of the offenses.

Finally, the State presented the testimony of Melissa Harrison, a scientist at the state crime laboratory in Tyler, that she had analyzed the substance possessed by Webster and determined that it was cocaine. State Exhibit 4, Harrison's report, which was admitted to evidence and published to the jury, indicates that the "County of Offense" is Harrison.

The evidence reveals direct evidence in Harrison's laboratory report of venue, for the possession offense, in Harrison County. The evidence also reveals circumstantial evidence of venue, for both offenses, in Harrison County. In addition to the laboratory report, the arresting officers were employed by the Marshall Police Department, transported Webster to the Marshall Police Department after arrest, and then transported Webster to the Harrison County jail. Uncontroverted testimony indicated that both offenses occurred in the same location. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, by a preponderance of the evidence, that the offenses occurred in Harrison County. Viewing all the evidence in a neutral light, we cannot say the evidence supporting venue in Harrison County is outweighed by the great weight and preponderance of the evidence or is so weak that the finding of venue in Harrison County is clearly wrong or manifestly unjust. The jury could reasonably conclude, by a preponderance of the evidence, that the offenses were committed in the county alleged. We overrule the points of error.

(3) Reformation of Judgment

We note, sua sponte, that the judgment in this appeal contains an error. The judgment, signed and dated May 9, 2007, indicates the date of the offenses was "9/23/2007." The record, however, indicates the date of the offenses was September 23, 2006, not in 2007. We have the authority to correct and reform a judgment to make the record speak the truth. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Smith v. State, 223 S.W.3d 690, 696 (Tex. App.--Texarkana 2007, no pet.); see also Tex. R. App. P. 43.2(b). Accordingly, we reform the trial court's judgment to indicate the correct date of the offenses as "9/23/2006."

 

As reformed, we affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: October 8, 2007

Date Decided: November 16, 2007

 

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