Stewart v. State

• Decision Date: 18 April 2001
• Citation: 44 S.W.3d 582
• Parties: (Tex.Crim.App. 2001) DALTON B. STEWART, Appellant v. THE STATE OF TEXAS NO. 522-00
• Court: Texas Court of Criminal Appeals

Page 582

44 S.W.3d 582 (Tex.Crim.App. 2001)

DALTON B. STEWART, Appellant v. THE STATE OF TEXAS

NO. 522-00

COURT OF CRIMINAL APPEALS OF TEXAS, EN BANC

April 18, 2001.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY

Meyers, J., delivered the opinion of the Court, joined by Keller, P.J., Price, Holland, Johnson, Keasler, Hervey and Holcomb, J.J.

Appellant was convicted of theft in a bench trial and sentenced to two years in a state jail facility. The trial court suspended the sentence, placed appellant on community supervision for five years, confined him to the county jail for ten days, assessed a $1,000 fine, and ordered him to perform 400 hours of community service. The Ninth Court of Appeals reversed appellant's conviction and entered a judgment of acquittal. Stewart v. State, 8 S.W.3d 832 (Tex. App. - Beaumont 2000). We granted the State's petition for discretionary review to determine whether the appellate court erred in holding that the State failed to establish venue in Montgomery County.

I.

Appellant, the complainant's ex-husband, placed a phone call from his home in Harris County to the complainant's home in Montgomery County. During the call, appellant threatened to distribute nude pictures of the complainant to organizations in her community if she did not send him $5000 within 48 hours. The complainant reported the incident to the Conroe Police Department. Detective Gene De Forrest told the complainant that, at the time, there was no evidence of a crime and nothing he could do to help.

Prior to the deadline threatened by appellant, the complainant received a letter at her home in Montgomery County from appellant. The letter was accompanied by a flier for the complainant's business, depicting a nude photograph of the complainant. In the letter, appellant threatened to mail the fliers out to "the Conroe business and church community" if the complainant failed to pay appellant within seven days. The complainant took the flier and the letter to Detective De Forrest.

De Forrest collaborated with United States Postal Service Inspector Bruce Beckham, who had been contacted by the complainant's husband, in an attempt to orchestrate "a little 'sting' operation" and catch appellant committing theft. De Forrest and Beckham obtained $1600 in cash from the complainant at her home in Montgomery County, had her fill out a mailing address label and took all items to Beckham's office in Harris County. The money was placed in an express mail envelope and delivered to appellant at his home in Harris County by a different postal employee. After De Forrest and Beckham witnessed the delivery, they waited 20 minutes and then stopped appellant as he backed out of his driveway holding the money in his hand. Appellant was arrested, taken to Beckham's office where he signed a written statement, and transported to Montgomery County jail. Appellant was then charged by indictment with having committed theft "by acquiring and exercising control of corporeal personal property, to-wit: United States Currency."

During trial, appellant argued that the State's failure to show appellant committed an offense in Montgomery County precluded venue in that county under Texas Code of Criminal Procedure Article 13.18, the general venue statute.¹ The State countered that venue was proper in Montgomery County under the theft-specific venue statute, Texas Code of Criminal Procedure Article 13.08, because appellant exercised control over the money in that county.² The trial judge did not make a specific finding as to which venue statute was applicable in appellant's case, however, it appears from his stated ruling that he found the general venue statute, Article 13.18, to be proper.³ The trial judge then found that the theft was complete at the time the complainant transferred the money to the authorities because of appellant's threats. The judge stated that the "gravity [sic] of the crime is the deprivation" and that physical delivery of the money was not necessary to complete the crime of theft.

On appeal, appellant argued again that the general venue statute, Article 13.18, was applicable to his case and not the theft-specific venue statute, Article 13.08. Appellant then argued that the State failed to establish venue in Montgomery County under Texas Code of Criminal Procedure Article 13.18 because there was no evidence that Stewart "appropriated" the money in that county, therefore no "offense was committed" in Montgomery County. The Court of Appeals held that Article 13.08 was the proper venue statute because "the Court of Criminal Appeals has concluded article 13.08 applies to all of the offenders who are prosecuted under the consolidated theft statute." Stewart at 833 (quoting Jones v. State, 979 S.W.2d 652 at 657 (Tex. Crim. App. 1998)). The Court of Appeals went on to hold that the State failed to show that appellant appropriated the money in Montgomery County under Article 13.08. Utilizing the Penal Code's definition of theft, the appellate court found no evidence that appellant "acquired or otherwise exercised control over the currency in Montgomery County."⁴ The Court of Appeals held that "the only action taken by [appellant] in Montgomery County was the inducement of the transfer of the currency. In Montgomery County, [appellant] did not conduct or direct the transfer of the money, or any instrument representing the money, and did not re-direct any packages containing the money." Stewart, 8 S.W.3d at 837. The Court of Appeals reversed and rendered a judgment of acquittal.

II.

We granted the State's petition for discretionary review to determine whether the Court of Appeals erred in holding that venue was not proper in Montgomery County, under Article 13.08, because appellant did not acquire or otherwise exercise control over the money in that county.⁵

The State first asserts that it does not contest the Court of Appeal's finding that Article 13.08 is the applicable venue statute in this case. Relying on the Penal Code definitions of "theft" and "appropriate", the State argues appellant exercised control over the property "when his extortive threats succeeded in compelling the victim to part with her property." The State maintains that one can exercise control over property without having actual possession of the property, and that, because complainant parted with her money in Montgomery County as a result of appellant's actions, venue lies within that county.

Appellant initially claims that the proper venue statute in this case is Article 13.18, the general venue statute, as he argued before the Court of Appeals. Appellant also claims that regardless of whether the general statute, Article 13.18, or the theft-specific venue statute, Article 13.08, is applicable here, venue is not proper in Montgomery County because no theft was committed in that county. Appellant says there is no evidence that he acquired, possessed or exercised control over the property in Montgomery County.

III.

We begin by addressing the issue of which venue statute is proper here, Article 13.08 or Article 13.18. The determination of whether one venue statute or another applies to a particular case is a mixed question of law and fact. The trial court must examine the facts of the case and apply the statutory requirements to those facts to determine whether the general venue statute or the theft-specific venue statute is appropriate. We review mixed questions of law and fact under an abuse of discretion standard when the resolution of the question turns on an evaluation of credibility and demeanor because, in such a situation, the trial judge is in an appreciably better position than the reviewing court to make such an evaluation. Guzman v. State, 955 S.W.2d 85 at 87-89 (Tex. Crim. App. 1997). However, if the mixed question of law and fact does not involve an evaluation of credibility and demeanor, we review the decision de novo. Id. Determining which venue statute is applicable does not involve an evaluation of credibility or demeanor. It involves an examination of the facts as they appear on the record, and a determination of which venue statute is proper in light of those facts. The trial court does not have any particular advantage over the reviewing court in making such a determination. Therefore, we will review the holding by the Court of Appeals that the theft-specific venue statute is applicable de novo.

Article 13.08 is a specific venue statute, applicable when "property is stolen in one county and removed by the offender to another county." Therefore, the theft-specific venue statute can only be proper if the property was transported by the offender from one county to another.⁶ We have said that Article 13.08 attaches venue "at the point where the accused takes control of the property." Jones, 979 S.W.2d at 657. It is not necessary that the offender physically remove the money from one county to another. Once appellant took control of the property and directed its removal from one county to another, he was responsible for that removal and Article 13.08 is applicable. Therefore, for the theft-specific venue statute to apply to appellant's case, appellant must have had control of the money when the complainant was dispossessed of it and he must be responsible for its removal to Harris County. If appellant did not have control of the money until it reached him in Harris County, and he was not responsible for its removal from one county to another, then we look to the general venue statute to resolve where venue properly lies.

For the reasons given in our analysis below, we conclude that appellant did have control of the complainant's money and was responsible for its removal to Harris County from Montgomery County and Article 13.08 is the proper venue statute.

IV.

Article 13.08 provides: "[w]here property is stolen in one county and removed by the offender to another county, the...