NO. 07-99-0323 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 28, 2001

______________________________ ROBERT MILLER, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 106 TH DISTRICT COURT OF LYNN COUNTY; NO. 98-2406; HON ORABLE GEORGE H. HAN SARD, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant, Robert

Miller, appeals from his conviction for unlaw ful possession of

a firearm by a felon. He challenges the State’s proof of proper venue in Lynn County, T exas, an d t he pr op ri et y o f t he co ur t’ s c ha rg e t o t he jur y. W e a ff i rm. I. BACKGROUND2

The hom e of John Saleh in O’Donnell, Lynn Count y , Texas, w

as burglarized on March 13, 1998. Saleh testified that num erous items , including a gold Rolex watch and three revolver pistols were stolen. Bobby Pe sina (Bobby) and appellant were c harged with the burglary. Appellant was also indicted for being a felon in possession of a firearm on the day after the burglary. The poss ession charge arose out of theburglary and a trip to Lubbock. Following the burglary, appellant and several others, including Bobby, drove to Lubbock w here appellant sold one of the stolen pistols to a form er emp loyer. Appellant pled not gui lty to both the b urglar y charge and the fel on-in- poss es sion charge. The caseswere tried together. Appellant was found guilty of both crim es. The jury assessed punishm ent for each crim e at incarceration in the Texas Dep artmen t of Justice, Institutional Division, for life. Bytwo issues appellant challenges the sufficiency of the State’s

evidence that he possessed a firearm in Lynn C ounty, and urges error in the jury c harge as to instructions on venue for the poss ession charge. He does n ot challenge his convi ction for bu rglary. W e wi l l ad dr es s t he i ss ue s i n t he or de r a pp el l an t p re se nt s t he m. II. ISSUE 1: PROOF OF VENUE Byhis first issue, appellant contends that the evidence w as factually insufficient to prove that he possess ed a firearm in Lynn C ounty as alleged in the indictment. The S tate responds that venue is presum ed to have been proven at trial, unless the re co rd sho ws otherwise. The S tate argues that appellant di d n ot ov er co me this presumption beca use3

the issue of venue w

as not sufficiently raised attrial. The State further contends t hat even if venue was raised as an i ssue, the jury could have r easonabl y inferre d from the evidence thatappellant possessed a firearm in Lynn County, and that the evidence as to venue was sufficient. A. Standard of Review In reviewing a factu al insu fficie ncy claim, all the evidence on both sides is reviewed, notin the light most favorable to the verdict, but in a neutral ma nner favoring neither side. See Johnson v. State , 23 S.W.3d 1, 6-7 (Tex.Crim .App. 2000) (en banc); Kutzner v. S tate , 994 S.W.2d 180, 18 4 (Tex .Crim .App. 1999). In a ca se suc h as th e m atter be fore uswhe re the verdict is in favor of t he party w ith t he burden of proof, the ve rdict may only be set aside for factual i nsuffici ency if the enti re record shows that evi dence supporti ng the jury’s finding is so weak as to be clearly wrong and m anifestly unjust. See Johnson , 23 S.W.3d at11 . U nles s th e re cor d cle arly rev ealsthat a different result is appropriate, an appellate court mu st defer to the fac tfind er’s determination con cerning what weight to gi ve contrad ictory

testimon ial evidence bec ause reso lution often turns on an evaluation of credibili tyand dem eanor, which is prim arily a determination to be m ade by observation of the witnessesgiving the testimony. See id . at 8

. B. Law Failure to prove venue in the county of prosecut ion constitutes reversible error. See Black v. State , 645 S.W.2d 789, 791 (Tex.C rim.App. 1983); Sixta v. State , 875 S.W.2d 17,1 Furt her references to an article of the Codeof Criminal Procedure w ill be by reference to “Article _.” 4 18 (Tex.App .--Houston [1 stDist.] 1994, pet. ref'd). It is presum ed that venue is proven in the trial court, unle ss the record affi rmatively shows otherwise or venue is made an issue at trial. See T EX . R. A PP . P. 44.2(c)(1). Venue in criminal cases need only be proven by a preponderance of the ev idence, and proof m ay be established by either direct or circums tantial evidence. T EX . C ODE C R IM . P ROC . A NN . art. 1 3.17 (Vernon 19 77); 1 see Black , 645 S.W.2d at 790. The trierof fac t may ma ke reasonable inferences from the evidence in dec iding th e issue of venue. Couchm an v. State , 3 S.W.3d 155, 161 (Tex.App. --Fort W orth 1999, pet. ref’d); Benavides v. State , 7 63 S .W .2d 587, 588-89 (Tex .App.--Corpus Christi 1988, pet. ref'd). The evidence is suffici ent to est abli sh ven ue if "fr om theevid enc e th e j ury m ay r eas ona bly conclude that the offense w as com mitted in the co unty alleged." Rippee v. State , 384 S.W.2d 717, 718 (Tex.Crim. App. 1964); Couchm an , 3 S.W.3d at 161. C. An alys is LuisPesina, testi fied that hi s brother, Bobby, told him that Bobby, appellant, and another person br oke into S aleh’s home and stole a Rol ex watch and a ring. Bobby’s m other, Ruth Ann M endieta, testified that Sal e h’s hom e was located in O’Donnell, Lynn County. She confirm ed that Bobby told her that Bobby, appellant, and some of Bobby’s friend s bro ke in to S aleh ’s hom e an d to ok s om e ite m s, which incl ude d go ld co in s, a necklace, and a ring. Fabien V illanueva, app ellant’s br other, testified that Bobby went to5

Vill anueva’s house the m orning of March 14th and asked Vil lanueva where hecou ld se ll so me items, which items included a gun, a necklace , and a gold Rol ex watch. V ill anueva testified that the items w ere in a bag, and the gun wasin a brown or m aroon leather case. ArturoMorado, an acquaintance of Bobby’s, testified that Bobby told him that Bobby and appellant bro ke into S aleh’s ho use and took agold watch w orth “a lot

of m oney.” Fernando Vargas testified that he drove appellant, Bobby, and several othersfrom O’D onn ell to Lubbock in m id-March, 1998. He testified that appellant got into the van w ith a satchel and stuck it behind the bac k seat. Appell ant direct ed Vargas to dri ve to Ed’s Paintand Body Shopin Lu bbo ck, and app ellan t went intothebod y s hop w ith t he s atc hel. Appellant sta yed in t he b ody sho p fo r ap pro xi m ate ly30 m inutes and cam e back to the van with thesatche l. Edward Ma rtinez, owner of E d’s Paint and Bo dy Shop, test ified that appellant had worked f or him briefly during 1998. He test ified tha t ap pella nt cam e by his shop to sell him a gun, and he purchased it for $100. Atthe conclusion of

the State’s

evidence, appellant move d for an instr ucted verdi ct on the charge of burglary of a habitation and unlawful possess ion of a firearm by afelon, contending that

the evidence was legally insufficient to sustain a conviction “as to either one or both counts.” The t rial court denied the motion. During appel lant’s case-in-chief, Lee Ramero testified that h e was one of the occupants that traveled in the van from O ’D onn ell to L ubb ock

in M arc h, 1 998 . R am erotes tifie d th at B obb y go t into th e va n in O’D onn ell with a bag w hich had a shoulder strap, b ut that the appellant did not bring a6

satchel onto the van. Ramero testified that both app ellan t an d B obb y exited thevan in Lubbock and w

ent inside the auto body shop w ith the satchel. Appella nt’s counsel conte nded in his opening stateme nt that appellant neither burglarized Saleh’s house nor possesse d a firearm in Lynn County, Tex as, as the State al leged. Appellant ma intains that the issue of venue w as again raised dur ing c losin g a rguments, wherein his counsel stated, “I told you in the beginning what I ex pe cted th e evidence to prove during m y opening statem ent .

. . .” Appellant relies on Cunningha m v. State , 848 S.W.2d 898, 901-02 (Tex.App.--Corpus Christi 1993, p et. ref

’d), whe re the court held that the defendant timely raised th e issue of venue during cl osing arg ument because the State could have produ ced evidence proving venue following the argum ent. Appellant also maintains that th e issue of venue was add ressed in his motion for instructed verdict. A m otion for instructed verdict wh ich specifically challenges the proof of venue tim ely raises and preserves the issue on appeal. See Black , 645 S.W.2d at 790- 91; Lozano v. State , 958 S.W.2d 92 5, 92 9 ( Te x. Ap p.- -El Pa so 1 997 , nopet .). In this instance, appellant did not specifically challenge venue in his motion for directed verdict; rather, he c hall enged the overall legal suffici ency of the evidence. V enue is not a “criminati ve fact” and thus, not a constituent elem ent of the offense. Fairfield v. State , 610 S.W.2d 771, 77 9 (Tex .Crim .App. 1981). We conclude tha t the venue issue was raised and preser ved by appellant . The State’s final argum ent specifically addressed the venue issue at som e length. The record7

demon strates thatthe State w as well aware of appellant’s position that although he m ay hav e so ld the pistol in Lubbock County, the evidence did not prove that he poss essed a firearm in Lynn Count

y. We further conclude, however, that the trierof fact could have reasona bly inferred fro m the e vidence that appell ant possessed a fi rearm in Lynn County. The te stimony, which contained significant conflicts, is not challenged by appellant as being sufficient to sup por t his conviction for burglary of Saleh’s hom e in Lynn County. S aleh testified that a .357 m agnum revolver with serial number 05943V w as a m ong theitem s s tole n fr om his home. One of

the occupants in the va n that traveled from O’Donnell to Lubbock the day after the incident testified that when appe llant was picked up, he entered the van w ith a sat che l, then later carried the satchel intoEd ’s Pa int a nd B ody Sh op in Lubboc k. Ed ward Martinez testified that appellant cam e to his shop i n Lubbock and sold him a pistol. The pistol was later entered into ev idence and was identified a s a .35 7 m agnum with serial numbe r 05943V. There wa s conflicting testimony w hether Bobby or appellant brought the sa tchel containing thepistol on to t he v an in O’ Don nell, in Lynn County. One of the j ury’s functions is to resolve conflicts in the evidence. The credibility of t he w itne sse s an d th eir testimon y is within the dom ain of those m atters entrus t ed to a j ury for resolution. See Garcia v. State , 919 S.W.2d 370, 382 n.6 (Tex.Crim .App. 1994). A s an app ellate co urt

w e m ay o nly setaside the jur y’s ver di ct fo r f ac tu al in su ff ic ie nc y i f th e e nt ir e r ec or d sh ows that evidence supporting the jury ’s finding is so weak as to be clearly wrong and m anifestly unjust. See8

Johnson , 23 S.W.3d at 11 . The record befo re us does not clearly reveal that a different res ult from that reached by the jury is approp riate. R esolution of conflicts in testimony turns on an evaluation of credibili ty and dem eanor of the witnesses, which is pr imarily a determ ination to be m ade by observation of the w itnesses giving the testimony. See id

. at8 . The jury’ s finding that appellant possessed a firearm in Lynn County is not supported bysuch weak evidence that it is clearly wrong and m anifestly unjust. Appellant’s first issue is overruled. III. IMPROPER JURY INSTRUCTION ON VENUE Byhis second issue, appellant contends that the j ury charge contained erroneous instructions on venue. He as serts that the cour t inst ructed the j ury as to provisions of Articles 13.17 and 13.19, whe n Article 13.18 wasthe proper provision to be applied. Appellant asserts that A rticle 13.17 only authorizes an allegation of venue in the county of prose cut ion w hen Cha pte r 13 of t he C ode of C rim inal P roc edu re cont ainsa s pec if i c venue pro vis ion f

or t he o ffe nsecha rge d. B eca usethe re isno s pec ific ven ue p rov ision in Chapter 13 for the offens e of unlaw ful posse ssion of a firearmby a felon, appellant asserts thatArticle 13 .17 is in appli cable to hi s case. Appell ant further asse rts that because evidence established that the offense was allegedly com m itted in Lub bock C ounty w here appe llant sold the pistol, the jury s hould have been instructed on the general venue provisions of Article 13.18, and not the provisions of Article 13.19, w hich address offenses for which venue cannot be determ ined.9

Appellant cites W ood v. State , 573 S.W.2d 207 (Tex.Crim .App. 1978) as authority that(1) Articl e 13.19 is app licab le to cases i n which the co unty or counties in which the offense took place i s in factual dispute, but not to cases in which onl y the locus of the com mission of

certain elements is in dispute, and (2) Article 13.18 applies to prosecutions in counties in which the offense w as com mitted. Appellant cl ai ms that he was egregiously harmed by the instructions in the charge because the evidence w as in sufficient to prove that he poss essed a firearm in Lynn County. He posits tha t th e ev iden ce p res ent ed b y th e S tat e would have allowed a finding thathe possessed a f

irearm in Lubbock C ounty, and that such evidence and t he court’s instruction would have allowed the jury to f ind venue proper in Lynn County, despite the fact that he was not indicted under the venue provisions of Article 13.19 . He cites no authority for his allegation that the instructions resulted in egregious harm. A. Standard of Review and Law If the error in the cha rge w as t he s ubj ect of atim ely o bj ect ion in the trial court, then reversal is required if the error is “calculated to injure the right s of defendant.” In ot her words, an error which has bee n properly pre served b y objec tion will call for reversal as long as theerror is not ha rmless. See Almanz a v. State , 686 S.W.2d 157, 171 (Tex.Cr.A pp. 1984) (en ban c). If pro per obj ect ion w

as n ot m ade at t rial, rev ers al is warranted only

if t he e rro r is so egregious and created such harm that the defendant “has not had a fair and impa rtial trial.” Id

. The degree of harm mu st be determ ined in li ght of10

the entire jury charge, the state of the evidence, including the contested issues and w eight of probative evidence, the argum ent o f c ounsel and any other relevant inform ation revealed by the record of the trial as a w hole. Id

. B. An alys is The court i nstructed the jury as fol lows: An indictment m ay allege that the offense w as com mitted in th e county whe re thepro sec utio n is car ried on. To s ustain t he a llega tion of venu e, it sha ll only be necessar y to prove by the preponderance of t he evidence that byreason of the facts

in the case, the cou nty w her e su ch p ros ecu tion is carried on has venue. If an offense has been com mitted w ithin this state and it cannot readily be determ ined within which co unty or counties the com mission took place, t rial may be h eld in thecou nty

in w hich thedef

end ant res ides , in thecou nty

in which he is apprehended, or in the county to w hich he is extradited. The first paragraph of

the court’s instruction is effectively a variation of both Articles 13.17 and 13.18 concerning proof of venue. The burden of proof is properly stated and allocated to the State. The instruction does not preclude a finding of venue under the language of the indictm ent in this m atter. The second paragraph effectively instructs t he jury as to the provisions of Article 13.19

. The first paragraph of the venue instruction required the Stat e to prove that the offense w as com m it te d in Lynn County, w here the prosecution was being carried on. Appellant does not claim that he was surprised b y the evidence as to v enue, the instructions them selves, or that the in structions did not effectively incorporate the provisions of Article 13.18 under the record.2 The date of the offensealleged in the charge of March 14, 1999, is atvariance with

the offense date alleged in the indictment of March 14, 1998. Appell ant did not ob ject in the trial court to the variance betw een the dates alleged in the indictment and the charge, nor has appellant assigned any error to the variance on appeal. 11 We have pr

eviously overr uled appellant’s issue asserting that the evidence w as fa ctu ally insufficient

to sup port a f

inding that appellant po ssess ed a firear m in Lyn n County. Thu s, a ppe llant ’s clai m of e gre giou s ha rm becaus e of in suffici ency of the evidence to find venue in Lynn County is not well taken. Moreo ver, the application paragraph of the jury charge instructed the j ury that appellant was to be found guilty as charged in the indictment “. . . if you find from the evidence beyond a re aso nab le doubt that on or about M arch 14, 1999, 2 in Lynn County, Texas, the def

endant, Robert

Miller, did th en and t here inte ntio nally or knowingly posse ss a firearm, . . .”; but, otherw ise, appellant was to be found not guilty. The application paragraph, therefore, did not allow the jury to find appellant guil ty of possessing a firearm in any county oth er than Lynn County, w hich was the county charged in the indictm ent, despite the second paragraph of the venue in structions. And, the verdict form s required the jury to find appellant either guil ty or not guilty of the offense of unlawful possession of a firear m “as

charged in the indictment, ” which restricted the j ury’s consideration to whether appellant possess ed a firearm in Lynn C ounty. In reviewing the entire record, the final argum ents and the j ury charge, we conclude thatappellant has not

show n th at e ven if

the jury charge was in error, th e harm was such12

thathe did nothave a fair and imp artial trial ; that is, he did not suffer egregious harm by such error. We overrule appell ant’s second issue. CONCLUS ION Having overruled both of appellant’s issues, we affirm thejudgm entof the trial court.

Phil Johnson Justice Do not publish.