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 ...