State v. Blankenship, 03-03-00287-CR.

CourtSupreme Court of Texas
Writing for the CourtJohn F. Onion, Jr.
Citation170 S.W.3d 676
PartiesThe STATE of Texas, Appellant, v. Robert BLANKENSHIP, Appellee.
Docket NumberNo. 03-03-00291-CR.,No. 03-03-00293-CR.,No. 03-03-00290-CR.,No. 03-03-00292-CR.,No. 03-03-00287-CR.,No. 03-03-00289-CR.,No. 03-03-00288-CR.,No. 03-03-00294-CR.,03-03-00287-CR.,03-03-00288-CR.,03-03-00289-CR.,03-03-00290-CR.,03-03-00291-CR.,03-03-00292-CR.,03-03-00293-CR.,03-03-00294-CR.
Decision Date29 June 2005

Gaye Lynn Brewer, Austin, for Appellant.

Terrence L. Irion, Anatole R. Barnstone, Law Office of Terrence L. Irion, for Appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.*


JOHN F. ONION, JR., Justice (Retired).

This appeal by the State of Texas involves eight judgments, nos. 624903 through 624910, entered in the County Court at Law No. 1 of Travis County, each of which reversed a judgment of conviction in the municipal court of record of the City of Austin.

On original submission, this Court concluded that it was confronted with a jurisdictional question in light of the amended notice of appeal filed by an assistant city attorney. Prior to November 1987, there was a traditional prohibition against the State's right to appeal in a criminal case. See State v. Pittman, 829 S.W.2d 897, 898 (Tex.App.-Austin 1992, no pet.). In 1987, the citizens of Texas voted to amend the State Constitution to read: "The State is entitled to appeal in criminal cases as authorized by general law." Tex. Const. art. V, § 26. Article 44.01 of the Code of Criminal Procedure was amended to grant the State an extremely limited right of appeal in certain designated circumstances, including when a court order "arrests or modifies a judgment." Tex.Code Crim. Proc. Ann. art. 44.01(a)(2) (West Supp.2004-05). The statute provided that the "prosecuting attorney" may not "make" an appeal later than the 15th day after the date on which the court's order, ruling, or sentence was entered. Art. 44.01(d).

The statute further provides:

(i) In this article, "prosecuting attorney" means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.

Tex.Code Crim. Proc. Ann. art. 44.01(i) (West Supp.2004-05).

It is clear from the statute that a duly authorized subordinate of the "prosecuting attorney" may not "make" an appeal. And we know that "in order for a State's notice of appeal to invoke the Court of Appeals' jurisdiction, it must be timely,1 it must be in writing,2 and it must be `made' by the elected prosecuting attorney."3 State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App.2000).

The notice of appeal in the instant case was signed and executed by an assistant city attorney and contained the following:


The County Attorney has consented to the City Attorney prosecuting this appeal under article 45.201 of the Code of Criminal Procedure.4

The State's brief acknowledges that the foregoing sentence is "ambiguous." The notice was signed by a person not connected to the county attorney's office. It did not reflect the name of the county attorney or the county and made express reference to article 45.201 but not to article 44.01, which governs the "making" of the State's notice of appeal. Article 45.201(c) permits the city attorney to prosecute appeals from municipal court only "with the consent of the county attorney." The statute has no time limitations and does not require the request or consent to be in writing. It would appear to apply to appeals that have been perfected.

For the reasons set forth in State v. Blankenship, 123 S.W.3d 99 (Tex.App.-Austin 2003), this Court found that the notice was not "made" by the county attorney and that this Court lacked jurisdiction to entertain the appeal. The State's petition for discretionary review was granted. Our judgment was reversed and the cause remanded for further proceedings. State v. Blankenship, 146 S.W.3d 218, 220 (Tex. Crim.App.2004). The Court of Criminal Appeals found the city's assertion in the notice of appeal was a written express personal authorization by the county attorney and found the assertion simultaneously complied with article 44.01 as to the notice of appeal and with article 45.201(c) as to authorizing the city attorney to prosecute the appeal. Id. at 218-20. Since the Court of Criminal Appeals found that this Court had jurisdiction to hear the State's appeal, we turn to the only point of error before this Court.


On April 24, 2002, thirteen complaints were filed against Blankenship in the Austin Municipal Court of Record charging him with violations of certain city ordinances. Each complaint alleged that the offense occurred in the territorial limits of the city of Austin as required by article 45.019(c) of the Code of Criminal Procedure.5 Trial by jury was waived and Blankenship entered a plea of not guilty in each case. The cases were heard on July 17, 2002. Blankenship filed pretrial motions to quash each complaint on the basis that the complaints alleged all the offenses occurred in the territorial limits of the city when in fact the offenses occurred outside the city or its territorial limits. The motions were called to the trial court's attention on the day of trial. After some discussion as to the date of filing, the motions were overruled as being untimely "under local rules." See also Tex.Code Crim. Proc. Ann. art. 45.019(f) (West Supp.2004-05); cf. Tex.Code Crim. Proc. Ann. art. 4.14(b) (West 2005) (relating to indictments and informations). The motions to quash are not in the appellate record.

After the State rested its case, Blankenship moved for an instructed judgment of acquittal in each case, inter alia, on the basis that the State had failed to prove the allegation that the offenses occurred in the territorial limits of the city but in fact had proved without dispute that the offenses had occurred outside the territorial limits of the city. The trial court asked for "written arguments." We find no ruling on the motions for instructed judgments of acquittal. Blankenship testified and presented his defense. The municipal court acquitted Blankenship of five of the thirteen charges and took the other cases under advisement. On August 22, 2002, the municipal court found Blankenship guilty of five offenses of developing or changing the use of property without first obtaining a site plan approval and release by the city of Austin. Blankenship was also found guilty of three offenses of failing to observe a stop-work order posted at the site of the property involved. The trial court assessed a $1,000 fine in each of the eight cases.

Blankenship filed a motion for new trial setting forth, inter alia, a "point of error"6 complaining the State failed to prove venue as alleged in each complaint. The motion was overruled. Notice of appeal was given to County Court at Law No. 1 of Travis County. In his appellate brief in county court, Blankenship again raised the contention that venue had not been proven as alleged.

On appeal, the County Court at Law No. 1 of Travis County considered only one of Blankenship's points of error—that being the failure of the State to prove its allegation in each complaint that the offenses occurred in the territorial limits of the city of Austin. The county court in its opinion sustained Blankenship's contention, reversed the eight convictions, and did not reach Blankenship's other points of error.

The county court found that the evidence showed and the parties agreed that the actions giving rise to the alleged offense occurred outside the territorial limits of the city of Austin but inside the city of Austin's extraterritorial jurisdiction as provided in Chapter 42 of the Texas Local Government Code. See Tex. Loc. Gov't Code Ann. §§ 42.001, .021(5) (West 1999).

It is clear that the Austin Municipal Court of Record had original exclusive criminal jurisdiction to try violations of certain city ordinances both within the territorial limits of the city and outside those limits but within a geographical area located within the extraterritorial jurisdiction of the city.7 The issue is not one of jurisdiction, but failure to prove venue as laid.

The county court recognized the requirement of article 45.019(c) but concluded it was "nonsense" to argue the complaint must allege the offense occurred within the territorial limits of a city when "the truth of the matter is that the offense, if any, occurred in ETJ [extra territorial jurisdiction] of the city." The county court's opinion discussed how in its opinion each complaint should have alleged venue as being in the extraterritorial jurisdiction and the basis for extending the court's reach beyond the territorial limits of the city such as referencing section 401.002(a) of the Texas Local Government Code or other applicable law. The county court concluded that "because the prosecution did not prove an essential element of its case, this prosecution must fail."

In light of Blankenship's point of error, the issue was not whether each complaint properly charged an offense. Each complaint did charge an offense and was sufficient on its face to invoke the jurisdiction of the Austin Municipal Court of Record. Further, the issue was not the proper manner of pleading each offense. The sole issue is the consequence of the failure of the prosecution to prove venue as laid under the particular circumstances of these cases.

The State has appealed the judgments of reversal to this Court. The State concedes the failure to prove the venue allegation but contends that the error was harmless and the convictions must stand.


Venue is distinct from jurisdiction. Skillern v. State, 890 S.W.2d 849, 859 (Tex.App.-Austin, 1994, pet.ref'd). The terms are not synonymous. Martin v. State, 385 S.W.2d 260, 261 (Tex.Crim.App.1964). Jurisdiction is the authority or power conferred upon a court by the constitution and laws of the State that allows a court to hear and try a case. R...

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    ...of Texas that allows a court to hear and try a case, whereas venue means the place where the case may be tried. State v. Blankenship, 170 S.W.3d 676, 681 (Tex.App.-Austin 2005, pet. ref'd). We begin by noting that venue is not an element of the offense. Fairfield v. State, 610 S.W.2d 771, 7......
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