Paula Kelly v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00214-CR Paula Kelly, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY NO. 48284, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING Paula Kelly appeals from her conviction for driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 1994 & Supp. 1999). After a jury found her guilty, the trial court sentenced her to pay a $500.00 fine and serve 180 days in jail, probated for two years. In two points of error, Kelly contends that there was no evidence that the offense occurred in the State of Texas and that the jury charge was erroneous. We will affirm. In her first point of error, Kelly contends that the State failed to prove the offense occurred in the State of Texas and thus failed to prove a necessary element of the offense. Kelly misunderstands what the State must prove. The State must prove that the county in which the prosecution is carried on has venue. See Tex. Code Crim. Proc. Ann. art 13.17 (West 1977); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Venue is not a "criminative fact"; therefore, it may be proved by a preponderance of the evidence. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). Proof of venue is adequate if the jury may reasonably conclude that the offense was committed in the county alleged. See Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). In addition to testimony from the arresting officer establishing Hays County as the location of the offense, appellant admitted that her arrest took place in "San Marcos, Hays County" and said that she was not contesting venue in Hays County. The State satisfied its burden of proving venue. (1) We overrule point of error one. In her second point of error, appellant complains of the final substantive paragraph of the jury charge: Suitable forms for your verdict are hereto attached; your verdict must be in writing and signed by your presiding juror. Your sole duty at this time is to determine the guilt or innocence of the Defendant under the complaint and information in this cause and restrict your deliberations solely to the issue of guilt or innocence of the Defendant. (Emphasis added.) Kelly's complaint seems to be that this part of the charge improperly imposes a burden of proof on the defendant to show innocence. In reviewing alleged charge errors, the court must first determine whether error actually exists in the charge and, if so, whether sufficient harm resulted from the error to require reversal. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). To constitute ordinary reversible error in the charge, the error must have been calculated to injure the rights of the defendant. Almanza, 656 S.W.2d at 171. The reviewing court views the charge as a whole, not a series of isolated statements or parts of the charge standing alone. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989); Washington v. State, 930 S.W.2d 695, 698 (Tex. App.--El Paso 1996, no pet.). When the charge as a whole sufficiently presents applicable law and protects the defendant's rights, it does not create reversible error. Parker v. State, 594 S.W.2d 419, 424 (Tex. Crim. App. 1980); Garcia v. State, 630 S.W.2d 914, 917 (Tex. App.--Amarillo 1982, no pet.). The charge as a whole carefully instructs the jury on the presumption of innocence. It specifically instructs the jury that the defendant does not have to prove her innocence and that the presumption of innocence alone is sufficient to acquit, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt. It instructs the jury that the State has the burden of proof; it instructs them on reasonable doubt and tells them if they have a reasonable doubt about guilt they are to acquit the defendant and "say by your verdict 'Not Guilty.'" The final paragraph of the instruction simply confines the jury to determining guilt, not punishment. By that point in the charge, the jury had been extensively instructed on what is necessary to find a defendant guilty and what they are to do if they do not find the defendant "guilty." The charge taken as a whole was not calculated to injure Kelly's rights. We overrule point of error two. Having considered and overruled both points of error, we affirm the judgment of conviction and the sentence. Bea Ann Smith, Justice Before Justices Jones, B. A. Smith and Yeakel Affirmed Filed: August 26, 1999 Do Not Publish 1. To the degree that appellant is trying to complain that the indictment alleged "Hays County, Texas" and the State inadequately proved "Texas," we note that we may take judicial notice that Hays County is in Texas. See Leyva v. State, 552 S.W.2d 158, 162-63 (Tex. Crim. App. 1977) (proof of venue in El Paso County showed offense occurred in Texas); Willliams v. State, 924 S.W.2d 189, 191-92 (Tex. App.--Eastland 1996, pet. ref'd). jury charge was erroneous. We will affirm. In her first point of error, Kelly contends that the State failed to prove the offense occurred in the State of Texas and thus failed to prove a necessary element of the offense. Kelly misunderstands what the State must prove. The State must prove that the county in which the prosecution is carried on has venue. See Tex. Code Crim. Proc. Ann. art 13.17 (West 1977); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Venue is not a "criminative fact"; therefore, it may be proved by a preponderance of the evidence. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). Proof of venue is adequate if the jury may reasonably conclude that the offense was committed in the county alleged. See Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). In addition to testimony from the arresting officer establishing Hays County as the location of the offense, appellant admitted that her arrest took place in "San Marcos, Hays County" and said that she was not contesting venue in Hays County. The State satisfied its burden of proving venue. (1) We overrule point of error one. In her second point of error, appellant complains of the final substantive paragraph of the jury charge: Suitable forms for your verdict are hereto attached; your verdict must be in writing and signed by your presiding juror. Your sole duty at this time is to determine the guilt or innocence of the Defendant under the complaint and information in this cause and restrict your deliberations solely to the issue of guilt or innocence of the Defendant. (Emphasis added.) Kelly's complaint seems to be that this part of the charge improperly imposes a burden of proof on the defendant to show innocence. In reviewing alleged charge errors, the court must first determine whether error actually exists in the charge and, if so, whether sufficient harm resulted from the error to require reversal. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). To constitute ordinary reversible error in the charge, the error must have been calculated to injure the rights of the defendant. Almanza, 656 S.W.2d at 171. The reviewing court views the charge as a whole, not a series of isolated statements or parts of the charge standing alone. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989); Washington v. State, 930 S.W.2d 695, 698 (Tex. App.--El Paso 1996, no pet.). When the charge as a whole sufficiently presents applicable law and protects the defendant's rights, it does not create reversible error. Parker v. State, 594 S.W.2d 419, 424 (Tex. Crim. App. 1980); Garcia v. State, 630 S.W.2d 914, 917 (Tex. App.--Amarillo 1982, no pet.). The charge as a whole carefully instructs the jury on the presumption of innocence. It specifically instructs the jury that the defendant does not have to prove her in