Phillips v. State, 43240
Decision Date | 18 November 1970 |
Docket Number | No. 43240,43240 |
Citation | 459 S.W.2d 632 |
Parties | Charles Raymond PHILLIPS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
A. J. Novelli, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Robert C. Bennett, Jr., Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is rape; the punishment, 11 years.
Trial was before a jury on a plea of not guilty. Appellant filed motion for probation and elected to have the jury assess the punishment.
By motion for instructed verdict, timely filed, the sufficiency of the evidence to prove that the rape, if any, occurred in Harris County, Texas, was raised in the trial court.
The sole ground of error set forth in appellant's brief filed in the trial court is that the court committed reversible error in overruling the motion for instructed verdict.
Venue in a criminal case is not an element of the offense charged and need not be established by evidence beyond a reasonable doubt. Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587; King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501; 24 Tex.Jur.2d 418, Evidence--Section 740, and cases cited under Note 3.
Under the express provisions of Art. 13.22 Vernon's Ann.C.C.P., rape may be prosecuted in the county in which it is committed, and when (as in Harris County) the judicial district comprises only one county, prosecution may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county.
Further, Art. 13.25 V.A.C.C.P. relating to proof of venue provides:
In view of the rules stated, proof by a preponderance of the evidence that the rape was committed in Harris County, or in an adjoining county, would be sufficient proof of venue.
The testimony of the prosecutrix relating to venue includes the following:
As the prosecutrix entered her car to leave a Lounge on Larkin Street, in Houston, about 4:15 P.M., appellant who had been in the Lounge, jumped in, started the car and drove out Hempstead Highway. She screamed for help when he stopped at a red light on Hempstead Highway;
(The testimony as to the assault, attempted sodomy and rapes committed at such place need not be set out.)
Other evidence elicited from the prosecutrix on direct and cross examination which relates to the question of venue includes the following:
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...evidence was sufficient to support, by a preponderance of the evidence, a finding that venue was proper in Gaines County. Phillips v. State, Tex.Cr.App., 459 S.W.2d 632. See also Hignite v. State, Tex.Cr.App., 522 S.W.2d 210; Esquivel v. State, Tex.Cr.App., 506 S.W.2d 613; Williams v. State......
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West v. State, 48574
...was sufficient proof for the jury to conclude that the exposure occurred in a park located in Dallas County, Texas. Phillips v. State, 459 S.W.2d 632 (Tex.Cr.App.1970). The judgment is Opinion approved by the Court. ...
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Esquivel v. State
...the road was rocky and graveled, as the testimony showed Benton Road to be. According to the principles announced in Phillips v. State, Tex.Cr.App., 459 S.W.2d 632, this testimony was sufficient to support the jury finding that the offense occurred in Bexar County. Venue in a criminal case ......
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Williams v. State, 44910
...to Slaton. Appellant argues that the offense could have occurred in the adjoining counties of Lynn, Garza or Crosby. Phillips v. State, 459 S.W.2d 632 (Tex.Cr.App.1970), has been decided contrary to appellant's contention. There, it was 'Venue in a criminal case is not an element of the off......