Connie Gomez v. State

NUMBER 13-06-00182-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CONNIE GOMEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 117th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Chief Justice Valdez A trial court convicted appellant Connie Gomez of possession of cocaine. Tex. Health & Safety Code Ann. § 481.115 (a), (b) (Vernon 2003); § 481.102 (3)(D) (Vernon Supp. 2006). After finding Gomez had two prior state jail felony convictions, the trial court sentenced her to six years in prison. In her sole issue on appeal, Gomez contends that the State failed to prove venue. We affirm. I. BACKGROUND The relevant facts are undisputed. On the evening in question, Troopers Steven West and Kenneth Garza stopped a car for driving without headlights on at night. Gomez was a passenger in the stopped vehicle. According to Trooper West's testimony, the traffic stop happened "on Leopard, just east of the intersection of Leopard and S.P.I.D. or [N]orth Padre Island Drive. . . ." Upon approaching the vehicle, Trooper Garza shined a flashlight inside and noticed a small glass pipe that he believed was used as a crack pipe. The driver was placed in the backseat of the patrol car and Trooper West questioned Gomez outside the car. Gomez told Trooper West that she was taking the driver to her motel room to sell him crack cocaine. Gomez then lead the troopers to a motel room which was within walking distance from the traffic stop. Gomez had a key to the room and gave the troopers access to it. They discovered paraphernalia and .09 grams of cocaine inside the motel room. The State indicted Gomez for possession of a controlled substance. It alleged in the indictment that the crime occurred in Nueces County. A trial court found Gomez guilty. This appeal ensued. II. DISCUSSION Gomez frames her sole issue as a challenge to the sufficiency of the evidence to sustain the conviction. However, venue is not a constituent element of the offense charged. Skillern v. State, 890 S.W.2d 849, 860 (Tex. App.-Austin 1994, pet. ref'd); see also Henley v. State, 98 S.W.3d 732, 734 (Tex. App.-Waco 2003, pet. ref'd). Venue must be proven only by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Banks v. State, 530 S.W.2d 940, 943 (Tex. Crim. App. 1975); Gonzales v. State, 784 S.W.2d 140, 142 (Tex. App.-Austin 1990, no pet.). The failure of proof of venue by the prosecution does not negate the guilt of the accused. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). Moreover, it is presumed that venue was proven at trial unless disputed or if the record affirmatively shows the contrary. See Tex. R. App. P. 44.2(c)(1). In the instant case, Gomez did not challenge venue before the trial court. A review of the record does not affirmatively negate the State's allegation that the crime occurred in Nueces County. To the contrary, Gomez's own testimony suggests that the crime occurred in Nueces County. She testified that she was from Corpus Christi, registered at Del Mar College, and that three of her children live in Corpus Christi while the other three live in Houston. Therefore, we cannot find any evidence in the record affirmatively negating the venue allegations made by the State. We overrule Gomez's sole issue. III. CONCLUSION The judgment of the trial court is affirmed. ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 2nd day of August, 2007.