Cunningham v. State, 13-92-211-CR

• Decision Date: 25 February 1993
• Docket Number: No. 13-92-211-CR,13-92-211-CR
• Citation: 848 S.W.2d 898
• Parties: Ross CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 898

848 S.W.2d 898

Ross CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.

No. 13-92-211-CR.

Court of Appeals of Texas,

Corpus Christi.

Feb. 25, 1993.

Discretionary Review Refused

June 9, 1993.

Jim W. James, James & Torrey, Bryan, for appellant.

Bill R. Turner, Dist. Atty., Margaret Lalk, Asst. Dist. Atty., Bryan, for state.

Before NYE, C.J., and GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

NYE, Chief Justice.

A jury found appellant guilty of manufacturing a prohibited weapon. The court assessed punishment at ten years in prison, probated, and a $2,000 fine.

Appellant challenges the sufficiency of the evidence in his first two points of error. In reviewing a sufficiency challenge, we must determine whether the evidence supports the conviction as authorized by the charge. See Arceneaux v. State, 803 S.W.2d 267, 270-71 (Tex.Crim.App.1990). The charge in the present case authorized the jury to convict if it found:

from the evidence beyond a reasonable doubt that on or about the 16th day of August, 1990, in Brazos County, Texas, the defendant, ROSS CUNNINGHAM, did intentionally or knowingly manufacture a prohibited weapon, namely an explosive weapon, or ... from the evidence beyond a reasonable doubt that on or about August 16, 1990, in Brazos County, Texas, Charles Poff did intentionally or knowingly manufacture a prohibited weapon, namely an explosive weapon, and that the defendant, ROSS CUNNINGHAM, acting with intent to promote or assist in the commission of that offense, did direct, aid or attempt to aid Charles Poff to commit that offense ...

Appellant argues that the evidence is insufficient to prove that the crime occurred in Brazos County within the statute of limitations period. We review the relevant facts.

Davy Aguilera, an agent for the Bureau of Tobacco, Alcohol, and Firearms in Austin, was introduced to an informant named Ernest Ruiz. On August 16, 1990, Aguilera drove with Ruiz to Elgin where Ruiz introduced Aguilera to a man named Oni Twilley. Aguilera told Twilley that he wanted to buy machine guns, explosives, or pipe bombs to take to Mexico and exchange for drugs. Unaware that Aguilera was an undercover agent, Twilley told Aguilera that he could buy pipe bombs from Charles Poff. Twilley joined Aguilera and Ruiz, and together the men proceeded to Bryan. There Twilley contacted Poff to arrange a meeting for Aguilera. The three proceeded to Showtime Video, Poff's workplace. Poff was unable to meet with them as planned, but he suggested that the three go to Radio Shack, where appellant worked.

When they arrived at Radio Shack, Twilley entered the store and returned shortly thereafter with appellant. Appellant was introduced to Aguilera as the "electronics wizard" who wired detonation devices for bombs. Appellant agreed with this description of his role. Unaware that Aguilera was equipped with a recording device and was recording their conversation, appellant discussed the bombs' wiring and construction with Aguilera and the others in Aguilera's car. Aguilera testified that appellant admitted having made timers, battery operated devices and to having read about how to make a remote control device for setting off an explosive. Aguilera asked appellant what kind of detonation device appellant made for the bombs he was going to purchase. Appellant stated that the bombs "just had straight wires." Appellant stated that Charles made the bombs and he, appellant, "did the other part," ostensibly referring to the wiring of the bombs. After their conversation, Aguilera, Ruiz, and Twilley returned to the video store. They picked up a key to appellant's apartment and proceeded there, intending to meet Poff.

Once at the apartment, Twilley retrieved two pipe bombs. The bombs were each made of three-quarter inch galvanized pipe, two end caps, and had wires attached to the ends. For approximately twenty-five minutes, the three searched the apartment for battery packs and electrical wire while waiting for Poff to meet them. When he failed to appear, Twilley contacted Poff by telephone. Poff told Twilley where to look in the apartment for the battery pack used to detonate the bombs. When questioned about who made the battery pack, Aguilera's testimony was inconclusive. Yet, he understood from a statement of Twilley's that either Poff or appellant built the battery pack. After locating the battery pack, the men returned to Showtime Video to pay Poff. At that time, Aguilera and Poff discussed plans for future deals. Poff indicated that both he and appellant were involved in making the bombs. Poff told Aguilera that he made the bombs and appellant was able to make timers, detonators and other detonating devices for the bombs. Poff assured Aguilera that he would "take care of" appellant with the money Aguilera paid him for the bombs. The men subsequently left Bryan.

At trial, Ernest Ruiz testified that he was in appellant's apartment twice. On one occasion, appellant told Ruiz that he was the person who wired the bombs. Ruiz understood that Poff was going to pay appellant for wiring the bombs.

Appellant first complains that the State failed to prove venue because it never established that the bombs were manufactured in Brazos County. When venue is made an issue in the trial court, failure to prove venue in the county of prosecution constitutes reversible error. Romay v. State, 442 S.W.2d 399, 400 (Tex.Crim.App.1969); see TEX.CODE CRIM.PROC.ANN. art. 13.18 (Vernon 1977). In response, the State contends that this Court should presume venue was proven because appellant did not timely raise the issue in the trial court. The venue presumption which the State relies on is found in TEX.R.APP.P. 80(d), which provides:

The court of appeals shall presume that the venue was proved in the court below ... unless such [matter was] made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.

The State concedes that appellant raised the issue of venue during closing argument but argues that such action was not timely. The issue thus initially presented is whether appellant's venue argument was timely to raise an issue on venue. Neither party cites authority on this point, and we can find none. Therefore, we review some of the cases that have determined when the issue was or was not timely presented.

A plea of "not guilty" does not make an issue of venue for purposes of avoiding the presumption in Rule 80(d) (formerly TEX.CODE CRIM.PROC. art. 44.24(a)). Holdridge v. State, 707 S.W.2d 18, 20-21 (Tex.Crim.App.1986). Nonetheless, a defendant's motion for instructed verdict which specifically challenges the proof of venue timely raises the issue. Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App.1983). When venue is first challenged in a motion for new trial, the issue is not timely raised. Gonzales v. State, 486 S.W.2d 380, 381 (Tex.Crim.App.1972). It thus appears that the issue must at least be raised sometime during trial.

The Court's language in Romay is instructive. There, the defendant raised the issue in a motion for instructed verdict, thereby placing the State on notice that venue had not been proven. The Court reversed the conviction, stating that the State offered no further proof after the motion. Romay, 442 S.W.2d at 400. It thus appears that if the State is placed on notice that venue has not been proven while it is in a position to correct the evidentiary deficiency by reopening its case, the defendant has timely raised the issue, and the appellate court must review the evidence to determine whether venue was proven.

In the present case, appellant clearly raised the venue issue during his jury argument. The State responded to appellant's attack in its argument. The State could have produced evidence following appellant's argument, as TEX.CODE CRIM.PROC.ANN. art. 36.02 (Vernon 1981) provides:

The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.

This statute has been construed to mean that a trial judge commits reversible error when he refuses a request to reopen for the purpose of producing relevant and admissible evidence, regardless of its weight or the issue upon which it is offered, so long as the request is timely under the statute and does not threaten to unduly impede the trial. Rogers v. State, 774 S.W.2d 247, 263 (Tex.Crim.App.1989), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989). Although appellant made no motion for instructed verdict raising the issue, nor did he at any time prior to closing argument challenge the sufficiency of the evidence to sustain the allegation of venue in Brazos County, he did "make an issue" regarding venue at a time when the State could have reopened its evidence, just as the State would have been required to do if appellant had made a motion for instructed verdict raising this issue after the State had closed. We acknowledge that permitting a defendant to "raise an issue" regarding venue in jury argument, thereby avoiding the presumption and preserving appellate review of the matter on the merits, may encourage defendants to delay their attacks on the venue deficiency until the evidence is closed, the charge prepared, and arguments begin. It is true, however, that a defendant may delay any sufficiency attack until this time. Venue, being a State's evidentiary burden, should be treated no differently. Accordingly, we find that the appellate presumption does not apply, and we must decide whether the State introduced evidence to prove venue beyond a reasonable doubt.

According to the charge in this case, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly manufactured a prohibited weapon in Brazos County, Texas or that appellant aided or assisted Charles Poff in the commission of the same offense. ¹ We agree...