ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS, TITUS COUNTY.
FOR APPELLANT: Clifton L. Holmes, Longview, TX; Gena Bunn, Holmes & Moore, P.L.L.C., Longview, TX.
FOR THE STATE: David Colley, Assistant District Attorney, Mount Pleasant, TX.
ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, HERVEY, and COCHRAN, JJ., joined. KEASLER, J., concurred. MEYERS, J., filed a dissenting opinion.
In this case we are asked to decide whether a claim of venue error is subject to review for harm on appeal. We conclude that venue error at trial is subject to a review for harm by using the standard for non-constitutional errors described in Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b). Applying that standard to this case, we determine that the State's failure to prove venue as alleged was harmless because the record fails to show that appellant's substantial rights were affected by the venue of his trial, which occurred at one of the places permitted under Article 13.09 of the Texas Code of Criminal Procedure, the specialized venue statute applicable to this case. We, therefore, overrule the two
grounds presented in the petition for discretionary review filed by Randy Schmutz, appellant, who contends that the court of appeals erred (1) by determining that the State's failure to prove venue as alleged was subject to harm analysis instead of automatic reversal, and (2) by finding the venue error in his case to be harmless. See Schmutz v. State, No. 06-12-00059-CR, 2013 Tex.App. LEXIS 3068, 2013 WL 1188994, at *2 (Tex.App.--Texarkana Mar. 22, 2013) (mem. op., not designated for publication). We affirm the judgment of the court of appeals.
Appellant signed an operating agreement with Priefert Manufacturing Co., Inc., the complainant in this case, to sell Priefert's farm and ranch equipment on consignment. Appellant agreed to sell this equipment at his retail store in Stephenville, located in Erath County. Priefert delivered its equipment to appellant's retail store from its headquarters in Mount Pleasant, located in Titus County. Appellant picked up inventory at Priefert's headquarters on several occasions and traveled back to his store. After making sales at his store, appellant reported them daily to Priefert's headquarters. Priefert then sent invoices to appellant for the wholesale price of the equipment that had been sold and the cost of the freight.
After the businesses operated under the agreement for over two years, the relationship dissolved by early 2003, when appellant closed his store and admitted to using proceeds from the equipment sales to pay other financial obligations. Priefert filed civil and criminal complaints against appellant in Titus County to recover the unpaid invoices that totaled nearly $90,000. Appellant filed for bankruptcy and discharged his civil liability. The criminal case, however, proceeded to trial.
B. Trial Proceedings
Appellant was indicted in Titus County for the offense of hindering a secured creditor by misappropriating the proceeds of secured property, a third-degree felony. See Tex. Penal Code § 32.33(e), (e)(5) (establishing offense as third-degree felony when the value of misappropriated property totals between $20,000 and $100,000). The indictment alleged that venue lay in Titus County based on appellant's " sell[ing] or dispos[ing] of secured property" there. See Tex. Code Crim. Proc. art. 13.09. The undisputed facts at trial, however, showed that appellant sold property in Erath, not Titus, County. Titus County was the county from which the property had been removed, but the State's indictment did not allege that theory as a basis for venue.
Appellant repeatedly challenged venue on the ground that he had not disposed of any property in Titus County, as the State had alleged in the indictment. On this
basis, he filed a pretrial motion to quash, requested a directed verdict after the State rested its case-in-chief, and requested a jury instruction on the special venue provisions in Article 13.09. See Tex. Code Crim. Proc. art. 13.09. The trial court denied these requests. The jury convicted appellant of hindering a secured creditor and recommended community supervision. Accordingly, the trial court sentenced appellant to five years of community supervision and ordered him to pay restitution totaling $52,681.57.
C. Appellate Proceedings
Appellant appealed his conviction to the court of appeals. In light of the record that conclusively showed no property was disposed in Titus County, the court of appeals held that the State " failed to prove the venue facts it alleged," and that this constituted error. Schmutz, 2013 Tex.App. LEXIS 3068, 2013 WL 1188994, at *2. The central dispute on appeal concerned the appropriate harm analysis: Whether the State's failure to prove venue required reversal without a harm analysis, as appellant suggested, or whether it required a harm analysis as non-constitutional error and was harmless, as the State suggested. More specifically, the parties disputed the applicability of this Court's opinion in Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App. 1983).
Over thirty years ago in Black, this Court held that " [w]hen venue is made an issue in the trial court, failure to prove venue in the county of prosecution constitutes reversible error." Id. Appellant argued that Black requires automatic acquittal when the State fails to prove venue as alleged. The State responded that, since Black was decided, the Texas Rules of Appellate Procedure were amended and that under the current appellate rules this error is subject to review for harm under the non-constitutional-error standard.
The court of appeals disagreed with appellant. Schmutz, 2013 Tex.App. LEXIS 3068, 2013 WL 1188994, at *2. As a preliminary matter, it determined that, because appellant disputed venue at trial, the State was not entitled to an appellate presumption that venue was proven. See 2013 Tex.App. LEXIS 3068, [WL] at *2; Tex. Code Crim. Proc. art. 13.17; Tex. R. App. P. 44.2(c)(1). With respect to the parties' dispute about the continued validity of Black 's holding, which required acquittal " when venue was not proven as alleged," the court observed that Black " predate[d] the 1997 amendment of Rule 44.2(b) of the Texas Rules of Appellate Procedure that requires harm analysis" for non-constitutional trial errors. Schmutz, 2013 Tex.App. LEXIS 3068, 2013 WL 1188994, at *3; see Tex. R. App. P. 44.2(b). Surveying the post-amendment case law, the court found that some courts of appeals still applied Black 's holding, but that other courts of appeals held that the State's failure to prove venue was subject to a harm analysis as non-constitutional error. Schmutz, 2013 Tex.App. LEXIS 3068, 2013 WL 1188994, at *3 (citing Dewalt v. State, 307 S.W.3d 437, 460 (Tex.App.--Austin 2010, pet. ref'd) (applying harm analysis in dicta); Thompson v. State, ...