Michael Ray Atchley v. The State of Texas--Appeal from 336th District Court of Fannin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-02-00110-CR

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MICHAEL RAY ATCHLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 20087

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Michael Ray Atchley was tried before a jury for the state jail felony offense of possession of a controlled substance, namely methamphetamine. At the close of the State's evidence, Atchley moved for a directed verdict, which the court overruled. The jury returned a verdict of guilty, and the trial court assessed a sentence of one year in the state jail division of the Texas Department of Criminal Justice. In his sole point of error, Atchley contends "[t]he trial court erred by failure to present evidence that the defendant committed the offense in a particular county." We affirm the judgment of the trial court.

Facts

On April 12, 2001, Officer Jeff Stapleton, of the Bonham Police Department, and Bruce Caylor, Fire Marshall for Bonham and a certified police officer, detained Atchley based on information obtained from a confidential informant. When asked "if he would empty his pockets," Atchley agreed. Officer Stapleton discovered a small black nylon pouch containing several bags containing white powder. The Texas Department of Public Safety Crime Laboratory in Garland, Texas, identified the powder as 0.31 grams of methamphetamine.

Discussion

Atchley argues that failure to introduce evidence of the county in which the crime occurred leaves a rational jury with no basis on which to convict beyond a reasonable doubt. The State contends that it was only required to prove the county where the crime occurred by the preponderance of the evidence and that sufficient evidence exists to meet its burden of proof.

The State is required to prove that the prosecution is being brought in the proper venue. A district court may try any case in which the offense takes place within the State, but venue must be proper under Chapter 13 of the Texas Code of Criminal Procedure. Ex parte Watson, 601 S.W.2d 350, 352 (Tex. Crim. App. 1980). The general rule, as stated in Article 13.18 of the Texas Code of Criminal Procedure, provides that "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 1977). Because venue is not an element of the offense, it need not be shown beyond a reasonable doubt. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). "The State need prove venue only by a preponderance of the evidence." Murphy v. State, 112 S.W.3d 592, 605 (Tex. Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977).

Courts of appeals must presume that venue was proven in the trial court unless it was disputed during the trial or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1). After the State rested, but before the defense rested, Atchley moved for a directed verdict of acquittal on the ground that venue remained unproven, which is sufficient to dispute venue. See Sander v. State, 52 S.W.3d 909, 917 (Tex. App. Beaumont 2001, pet. ref'd). A motion for an instructed verdict of acquittal specifically challenging the proof of venue timely raises and preserves the issue for appeal. Black v. State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983); Lozano v. State, 958 S.W.2d 925, 929 (Tex. App. El Paso 1997, no pet.).

A point of error complaining about a trial court's failure to grant a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). When we review the legal sufficiency of the evidence of venue, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the venue proper by a preponderance of the evidence. Lemoine v. State, 85 S.W.3d 385, 387 (Tex. App. Corpus Christi 2002, pet. ref'd); see Jackson v. Virginia, 443 U.S. 307 (1979); Murphy, 112 S.W.3d at 605.

At trial, the State presented testimony of Officers Stapleton and Caylor. Stapleton testified he was working on "a narcotic deal" in his capacity as a Bonham police officer the day Atchley was arrested. Caylor testified he often acts in the dual capacity of Bonham fire marshall and police officer for the City of Bonham. On April 12, 2001, Caylor testified he was acting in his law-enforcement capacity. Stapleton testified they detained Atchley in the "1200-block of Albert Broadfoot." After Atchley had been arrested, he was transported to the Bonham City Jail. State Exhibit 1, consisting of the laboratory report concerning the drugs, was introduced showing the drug was sent to the laboratory by certified mail with a return address at the Bonham Police Department. The laboratory report was addressed to an officer at the Bonham Police Department. The report shows the county of the offense as Fannin County. However, neither officer testified that the offense occurred in Bonham or in Fannin County.

The testimony reveals that the arresting police officers were employed Bonham, Texas, they transported Atchley to the Bonham Police Department, the drugs were mailed to the laboratory from the Bonham Police Department, and the laboratory report was addressed to an officer in Bonham. It is argued that these facts link this offense to Bonham, Texas, and that we can take judicial notice that Alfred Broadfoot Street is located in Bonham. In this case, that is not necessary, because the laboratory report is sufficient direct evidence that the offense occurred in Fannin County.

A rational jury could conclude that the offense occurred in Fannin County by a preponderance of the evidence. Accordingly, we hold that the trial court did not err in denying Atchley's motion for directed verdict and we overrule this contention.

Conclusion

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: December 16, 2003

Date Decided: December 17, 2003

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