Holdridge v. State

• Decision Date: 08 January 1986
• Docket Number: No. 181-85,181-85
• Citation: 707 S.W.2d 18
• Parties: Cheryl Ann HOLDRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 18

707 S.W.2d 18

Cheryl Ann HOLDRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 181-85.

Court of Criminal Appeals of Texas En Banc.

Jan. 8, 1986.

Gerald E. Bourque, Houston, for appellant.

James Michael Kuboviak, Co. Atty. and Laura Marie Hubert, Asst. Co. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

In this prosecution for prostitution the complaint and information charge that "in the County of Brazos, State of Texas" on a certain day appellant did knowingly offer to engage in sexual intercourse with John Laird for a fee. Unbeknownst to appellant, Laird was then and there working as a criminal intelligence investigator for the Department of Public Safety. The sole witness for the State, Laird testified at one point that appellant made the offer to him on premises of "the Mini-Movie Hot Tub located on Highway 6, south of Brazos County ... outside the city limits of College Station." ¹

In her first ground of error presented to the Waco Court of Appeals appellant asserts the trial court erred in holding evidence was sufficient to sustain a conviction "because the evidence was insufficient to prove 'venue' as alleged in the information." Thereunder appellant quotes from Article 44.24(a) and underscores both clauses in the "unless" provision. ² In her argument appellant contends that her plea of not guilty placed venue in issue and failure on the part of the State to prove venue "made the conviction unwarranted." She cites Black v. State, 645 S.W.2d 789 (Tex.Cr.App.1983), among others. In addition she reads testimony of Laird to prove that the offense was committed in a county other than Brazos. Therefore, the presumption of proper venue "dissolves when improper venue affirmatively appears in the record." Thus before the court of appeals appellant invoked both means of rebutting the presumption on appeal that venue was proved in the trial court.

Opining that appellant was raising the issue of venue for the first time on appeal, the Waco Court of Appeals found from the testimony of Laird that "the evidence affirmatively shows that the offense was not committed in Brazos County as alleged in the complaint and information;" however, looking to the provisions of Articles 13.04 and 21.06, V.A.C.C.P., the court concluded that since the record does not affirmatively show that the offense was not committed within 400 yards of the boundary of Brazos County, it still must presume such venue proof was made in the trial court. Holdridge v. State, 684 S.W.2d 766, 767-768 (Tex.App.--Waco 1984). We granted petition to review the reasons for and the decision of the Waco Court of Appeals. Articles 44.24(c) and 44.45(b), V.A.C.C.P.

At the outset appellant contends her motion for an instructed verdict "based on the State's failure to make a prima facie case of prostitution as alleged in the information is sufficient to place venue in issue, especially when Appellant's plea of not guilty placed all allegations of the information in issue." As in the court of appeals, she cites Black v. State, 645 S.W.2d 789, 790 (Tex.Cr.App.1983). We turn to examine that proposition in its evidentiary context.

That Laird had come to Brazos County to conduct an investigation into prostitution and on the alleged day of the offense at issue had gone to the Mini-Movie Hot Tub in the course of his investigation were undisputed. In essence, Laird related that after paying appellant to view a sexually oriented movie and he and she had engaged in general "small talk" conversation, appellant asked Laird "if [he] wanted anything extra," he inquired "like what" and, explaining that she worked "for tips," appellant stated a specific amount of money for each kind of several sexual activities she mentioned.

Appellant rested behind the State without presenting any evidence. After the State closed appellant moved for an instructed verdict on grounds that three decisions referred to by her counsel (but not cited in the record) dictated that "we strictly construe this statute," so that if the allegation is "there is an offer" the complaining witness "has got to say specifically that [the accused] offered to give him sexual intercourse for a fee. It cannot be, I work for tips, the tips are." In responding the prosecuting attorney insisted his proof supported every allegation in the information, viz:

"We have shown that particular conduct was offered, it was offered for a fee, it was offered to John Laird, it was offered to him in Brazos County, it was offered on April 11th of this year and [appellant] is the one that made the offer."

By rejoinder counsel for appellant attacked the attitude and facileness exhibited by Laird as a witness and then returned to his contention that the statute must be strictly construed; ergo, counsel concluded, "[the prosecution] has failed to present testimony to this court that even creates a prima facie case of prostitution as charged." Never did appellant contend venue in Brazos County had not been shown, nor did she challenge the State's argument that appellant made an offer of sexual intercourse to Laird in Brazos County.

In these circumstances we hold that the motion for instructed verdict based on grounds stated by appellant did not raise failure of the State to prove venue in Brazos County. Masters v. State, 165 Tex.Cr.R. 303, 306 S.W.2d 355 (1957); cf. Martin v. State, 385 S.W.2d 260, 261 (Tex.Cr.App.1964); see Black v. State, 645 S.W.2d 789, 792-793 (Tex.Cr.App.1983) (Onion, P.J., dissenting).

In Black, supra, the opinion of the Court carefully points out: "After the State had rested, the appellant made a timely and proper motion for acquittal premised upon the State's failure to prove venue." Id., at 790. Thereafter the opinion states:

"A plea of not guilty puts in issue the allegations of venue, and the State must prove such allegations or a conviction will not be warranted. It is unnecessary for the defendant to put venue in issue by either special plea or negation of the allegation: venue must be proved as alleged. Art. 13.17, V.A.C.C.P."

Id., at 790. Testimony of arresting officers was reviewed and found wanting with respect to venue and otherwise the record was "devoid of either direct or circumstantial evidence relating to venue," id., at 791. The Court concluded:

"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 (Tex.Cr.App.1969). The State having failed to prove venue, the appellant's motion for acquittal was improperly denied."

Id., at 791. ³

Though appellant would have us do so, Black should not be read to mean that by pleading not guilty an accused who does not otherwise timely raise an issue of venue in the trial court has made an issue of venue for purposes of avoiding the presumption provided in Article 44.24(a). The statements in headnote 1 at page 790 pertain to putting the State to its proof. The rule that a plea of not guilty is enough to require the State to prove its allegation of venue is to place the burden of proof at trial. Article 44.24(a) is a rule of appellate presumption that the State met its burden of proof unless during trial accused challenged sufficiency of evidence presented by the State to show venue. Masters v. State, supra, 306 S.W.2d at 357.

Turning to the other "unless" clause, we first observe that when the Code of Criminal Procedure was revised in 1965 the clause was modified conformably with other changes made with respect to the record. Previously the clause read:

"and it affirmatively appears to the contrary by a bill of exceptions approved by the judge of the court below ... and duly incorporated in the transcript."

See Historical Note following Article 44.24; see also Acts 1897, 25 Leg., Ch. 12, p. 11, § 1, 10 Gammel's Laws of Texas 1065, amending former article 904, C.C.P. 1895.

Hard on the heels of the 1897 amendment came McGlasson v. State, 38 Tex.Cr.R. 351. 43 S.W. 93 (1897), in which the Court interpreted the second clause, viz:

"It occurs to us that this statute requires this court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved ... said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that the same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved."

Id., 43 S.W. at 94. Such construction would be affirmed as the established rule, albeit a portion was somewhat restated from time to time. Accord: Garrett v. State, 61 Tex.Cr.R. 514, 135 S.W. 532 (1911); Thompson v. State, 72 Tex.Cr.R. 6, 160 S.W. 685, 686 (1913); Belcher v. State, 71 Tex.Cr.R. 160, 161 S.W. 459, 461-462 (1913); Allen v. State, 82 Tex.Cr.R. 416, 199 S.W. 633, 634 (1917) (bill must set out evidence "so as to negative the proof of venue"); Hughes v. State, 91 Tex.Cr.R. 642, 241 S.W. 150, 151 (1922); Mohler v. State, 98 Tex.Cr.R. 238, 265 S.W. 553, 555 (1924); Bolin v. State, 109 Tex.Cr.R. 556, 5 S.W.2d 998 (1928); Guidry v. State, 116 Tex.Cr.R. 294, 31 S.W.2d 633, 634 (1930); Cantrell v. State, 129 Tex.Cr.R. 240, 86 S.W.2d 777, 780 (1935) (unless evidence affirmatively shows venue elsewhere it is presumed to be in county where laid); Valdez v. State, 141 Tex.Cr.R. 52, 147 S.W.2d 246, 247 (1941) (evidence must negative the proof of venue); Barragan v. State, 141 Tex.Cr.R. 12, 147 S.W.2d 254, 256 (1941); Thompson v. State, 393 S.W.2d 922, 923 (Tex.Cr.App.1965) (appellate court will presume venue proved in absence of bill "to the contrary"); see also Branch's Annotated Penal Code (2nd Ed.) 464, § 472.

As modified in 1965,...