State v. Weaver

OVERSTREET, Judge,

dissenting.

Appellee was charged by indictment with theft by deception in Harris County, alleged to have occurred “on or about VARIOUS DATES BETWEEN JULY 02, 1993 AND JANUARY 15, 1995[.]” The indictment alleged the theft of money pursuant to one scheme and continuing course of conduct, with an aggregate value of more than $20,000 and less than $100,000, and named 32 persons as all having a greater right to possession than appellee. Two enhancement allegations were also included. The trial court initially denied appellee’s motion for severance, but upon reconsideration granted the motion. The State appealed. The First Court of Appeals reversed the trial court’s order granting severance. State v. Weaver, 945 S.W.2d 334 (Tex.App. — Houston [1st Dist.] 1997). Appellee sought discretionary review which we granted. The majority of this Court denies appellee’s claim. I respectfully dissent.

I. SUMMARY OF PERTINENT FACTS

The record reflects that appellee was accused of committing the alleged thefts in various places around Texas moving south across the state, and finally setting up his business in Harris County and continuing to steal. The prosecutor argued that there was less than $20,000 taken in Harris County, but more than $50,000 “taken during the scheme as it moved south across the state[.]” The prosecutor stated that this scheme involved appellee selling snails to individuals for breeding purposes, with appellee promising to repurchase them upon maturity; and that his promise to buy back mature snails in bulk at $4.00 per pound was fraudulent in that he never intended to do so, but rather was just stealing their money.

Appellee sought severance of the alleged appropriations from 24 of the named owners because the transactions with them did not occur in Harris County, and he had the right to severance under V.T.C.A. Penal Code, § 3.04. Appellee also moved for severance of each of the cases occurring within Harris County, i.e. those involving the other eight named owners. The trial court granted the motion for severance “which deals with any complainant who has a cause of action in another county other than that of Harris.”

The trial court subsequently made findings of fact regarding appellee’s motion to sever. These findings stated:

1. The indictment charging appell[ee] with aggregated theft lists some complainants who allegedly have had offenses committed against them by the defendant in counties other than Harris County, Texas.

2. The indictment alleges that those out-of-county transactions were committed *897 pursuant to the same scheme or course of conduct as those transactions committed within Harris County.

3. If the alleged out-of-county transactions are severed out of the indictment, the provable theft loss will be reduced to a state jail felony.

II.COURT OF APPEALS HOLDING

On appeal, the State averred, among other things, that the trial court erred in finding that an aggregate theft indictment may not include transactions that occurred in other counties, although those transactions were part of the same scheme or continuing course of conduct as the transactions that occurred in Harris County. The court of appeals agreed. It held that if an offense created by V.T.C.A. Penal Code, § 31.09, which provides for aggregation of amounts involved in a scheme or continuing course of conduct of theft, “is one offense for purposes of jurisdiction, limitation, and punishment, it is also one offense for purposes of venue.” State v. Weaver, 945 S.W.2d at 336 . Thus, since there was only one offense, the trial court erred in severing it.

III.APPELLEE’S CLAIM

We granted one of appellee’s questions for review. That question asks, “Did the Court of Appeals err in holding that the trial court could not sever incidents of theft having no nexus to Harris County?” Appellee insists that the trial court properly held that Harris County was not the proper venue for prosecution of a theft case where there was no conduct linked to Harris County. He also adds that the court of appeals, at the State’s urging, “has used statutory interpretation to thwart a constitutional right to proper venue.”

The State maintains that the court of appeals properly gave full effect to the general venue provision of Article 13.18, V.A.C.C.P., because aggregate theft is one offense, and a portion of the offense allegedly committed occurred in Harris County, thus the offense occurred in Harris County for venue purposes.

IV.ANALYSIS

An accused criminal defendant has the right to a speedy and public trial by an impartial jury “of the State and district where the crime shall have been committed, which district shall have been previously ascertained by law[.]” U.S. Const., amend. VI. Our own Texas Constitution provides that the power to change venue is vested in the courts, to be exercised pursuant to law, “and the Legislature shall pass laws for that purpose.” Tex. Const., art. Ill, § 45.

The specific language of the Aggregation of Amounts Involved in Theft statute, V.T.C.A. Penal Code, § 31.09, states:

When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.

This statute makes no mention of venue. It merely deals with considering the conduct as one offense and aggregating the amounts in determining the grade of offense if the thefts were pursuant to one scheme or continuing course of conduct. Such does not address venue.

Venue means the place in which prosecutions are to begin and where a case may properly be tried. Thomas v. State, 699 S.W.2d 845, 854 (Tex.Cr.App.1985); Ex parte Watson, 601 S.W.2d 350, 351 (Tex.Cr.App. 1980). Chapter 13 of the Code of Criminal Procedure addresses venue. Article 13.18, V.AC.C.P., provides that if venue is not specifically stated, then the proper county for the prosecution “is that in which the offense was committed.” Theft is not a continuing offense, i.e. when all-of the elements of the theft have occurred, the theft is then complete and does not continue. Barnes v. State, 824 S.W.2d 560, 562 (Tex.Cr.App.1991). Thus in this case, the individual theft offenses were complete when all of their elements occurred. Concomitantly venue lies in the county in which each particular theft was committed. Though § 31.09 allows for aggregation of amounts “in determining the grade of the offense[,]” it makes no provision for trans-county venue.

*898 Article 13.08, V.A.C.C.P., does provide for alternative venue in multiple counties when property is stolen in one county and removed by the offender to another county. However, there is no claim that such applies to the thefts in question in this case. I also observe that the literal language of Art. 13.08 indicates that it establishes venue for the trials of offenders who steal the property of another person and remove that property from one county to another, thus allowing the offender to be prosecuted in either the county where he took the property or in any county through or into which he may have removed it. Again, there is no claim that such applies to appellee, and the State even acknowledges that Art. 13.08 “does not bear upon this case[.]” (State’s brief, p. 8)

While in Graves v. State, 795 S.W.2d 185, 187 (Tex.Cr.App.1990), this Court indicated that § 31.09 makes two or more incidents of theft one offense, and “creates a separate offense and defines conduct for purposes of jurisdiction, punishment, and period of limitation!!,]” such does not involve venue, i.e. the place in which the prosecution is to begin and where the case may properly be tried. Obviously, if § 31.09 provides for an aggregation of amounts in determining the grade of the offense, such aggregation would demarcate jurisdiction, punishment, and the limitations period. However, as stated above, § 31.09 makes no provision for multiple or trans-county venue.

The majority concludes that since § 31.09 provides for several instances of theft being aggregated into a single offense, venue lies in any of the individual counties in which the portions of the “single offense” of aggregated theft occurred. However, § 31.09 provides that such aggregated thefts “may be considered as one offense and the amounts aggregated in determining the grade of the offense.” [emphasis added] Again, § 31.09 makes no mention of such aggregation resulting in multiple venues.

The majority even concludes, perhaps relying upon personal knowledge of individual(s) from the prosecution and defense bars who were involved in the promulgation of § 31.09, that the Legislature intended to allow the bundling of individual thefts and prosecution of them as one offense regardless of when each individual theft occurred. However, that neglects to consider whether such “bundling” was to occur regardless of where each individual theft occurred.

Under the majority’s conclusion, such trans-county “bundling” would allow a far distant district attorney (DA) to usurp the prosecution authority of the local district attorney for theft offenses that occur in the local district attorney’s county of jurisdiction. In the instant case, since some of these alleged thefts occurred in counties far-flung from Harris County, under the majority’s interpretation the DA from any of those far-flung counties could prosecute the alleged offenses that occurred in Harris County without the Harris County DA even knowing about or being involved in such prosecution. Surely that is not what the majority believes § 31.09 provides for, yet that is precisely what the majority’s interpretation allows— whichever DA decides to first prosecute, to whatever resolution, “bundled” multi-county aggregate thefts as a single offense, the DA’s of the other counties are left out-in-the-cold as to the individual thefts from their counties which have already been prosecuted in the “bundle.”

The language of § 31.09 clearly contains no provision for multi-county venue; thus there is no need to resort to legislative history for supposition as to extending venue beyond what our statutes provide. And it appears that the majority’s interpretation which adds unstated venue provisions to § 31.09 reaches the absurd result of allowing a single far-flung prosecutor to usurp the prosecution authority of a local DA who has authority to prosecute local theft cases that occur within the county or counties of his jurisdiction.

The State claims that the Legislature “did not intend for an offender to be immune from prosecution for aggregate theft because he either had the luck or the foresight to commit his various thefts in different counties.” (State’s brief, p. 7) It suggests an example of a person traveling the State of Texas stealing $1,499, pursuant to the same course of conduct, in each of our 254 counties. Such would result in an aggregate amount of *899 $380,746, which if tried in one of the counties could be prosecuted as a first degree felony, or even be enhanced or habitualized; while if tried in each of the counties individually such would only be subject to prosecution as Class A misdemeanors. The State insists that the Legislature could not have intended a defendant who carries his scheme across county lines to receive such a windfall. However, if each of the 254 thefts were tried in the respective counties of venue, i.e. where the offense was committed where the elements of the theft occurred, that defendant would potentially face 254 one-year sentences in the county jails, which could be ordered to be served consecutively since they were each prosecuted in separate criminal actions; thus that defendant could serve 254 years in jail. The Legislature certainly could have considered such to be appropriate punishment rather than a windfall.

It is within the province of the Legislature to provide for venue. If the Legislature wants venue for assorted thefts that have occurred in various multiple counties to lie in a particular single distinct county, then it can enact a statute saying so. As of now, it has not done so.

Accordingly, I would sustain appellee’s question for review, and because the court of appeals did not address the State’s first point of error below, I would remand this cause to that court to address that point. Because the majority does not do so, I respectfully dissent.

BAIRD, J., joins.