Appeal from Dallas County
For Appellant: Melvyn Bruder, Tom Mills, Jr., & Charles Erwin - Dallas, TX
For Appellee: Henry Wade, D.A. - Dallas, TX
This is an appeal from a conviction for rape under the provisions of the former Penal Code, Article 1183, Vernon's Ann.P.C. Appellant was tried before a jury which assessed punishment at ninety-nine (99) years in the Texas Department of Corrections.
The sufficiency of the evidence is not challenged. Briefly summarized, the record reflects that the appellant abducted the prosecutrix from the parking lot of a Gibson's Discount Center in Dallas. He overpowered her, pushed her into her own car and then drove the car away while holding her down in the front seat. He drove her to a home in Heath, Rockwall County, which adjoins Dallas County. Inside the house, he forced her to disrobe, then forced her to commit acts of oral sodomy on him and to submit to vaginal intercourse. He later drove her back to the Pleasant Grove area of Dallas, where they were spotted by a Dallas police officer who had been alerted by witnesses in the Gibson's parking lot. A high-speed chase ensued after which appellant was apprehended.
Appellant's first, fourth, fifth and sixth grounds of error concern the issue of venue. In his first ground of error appellant contends that the trial court erred in denying his motion for instructed verdict because the State failed to prove venue in Dallas County. It is uncontroverted that the actual rape was committed in Rockwall County. Appellant contends that under the provisions of Article 13.22, Vernon's Ann.C.C.P., in effect at the time of the 1973 indictment, venue would not be proper in Dallas County.
Article 13.22, supra, provides that
"Rape may be prosecuted in the county in which it is committed, or in any county of the judicial district in which it is committed, or in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. When the judicial district comprises only one county, prosecutions may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county . . . " (Emphasis added).*fn1
Appellant contends that this Court's opinion in Phillips v. State, 459 S.W.2d 632 (Tex.Cr.App. 1970), which would otherwise be dispositive of this case, misinterpreted the italicized portion of Article 13.22 quoted above.
In Phillips, the prosecutrix testified that she was abducted as she was about to enter her car in the parking area of a lounge in Houston. She stated that the accused drove her "a good ways out" of Houston on the Hempstead Highway and stopped on a deserted, muddy road where the rape took place. She was unable to state whether this location was in Harris County. Presiding Judge Woodley noted that portion of Article 13.22 which provides that if "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." He then went on to state that "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" in Harris County.
Appellant contends that this holding would be correct only if the county adjoining Harris County was a single county judicial district. Where the adjoining county is only one county of a multi-county judicial district, as in the instant case, appellant contends that venue is proper in that county or in any of the other counties comprising the judicial district, but would not be proper in an adjoining county which is not part of the judicial district.
In the instant case, Dallas County is a single county judicial district. See generally Article 199 (14), Vernon's Ann.C.S. and amendments thereto creating additional courts within Dallas County. Rockwall County is part of the 86th Judicial District which also includes Kaufman and Van Zandt Counties. Article 199 (86), Vernon's Ann.C.S.
It is undisputed that the actual rape took place in Rockwall County. Therefore under appellant's interpretation of Article 13.22, supra, venue would be proper in Rockwall, Kaufman or Van Zandt Counties, but would not be proper in adjoining Dallas County because Rockwall County, ...