Darius Damascus BRIGGS, Appellant v. The STATE of Texas, Appellee
NO. 01-13-00291-CR
Court of Appeals of Texas, Houston (1st Dist.)
December 18, 2014
Jay M. Wright, Conroe, TX, for Appellant. Brett W. Ligon, District Attorney, Nathaniel Munier, Assistant District Attorney, Montgomery County, Texas, Conroe, TX, for State of Texas. Panel consists of Justices Higley, Bland, and Sharp.
CONCLUSION
We affirm the trial court‘s judgment.
Jane Bland, Justice
A jury found Darius Damascus Briggs guilty of violating the terms of his civil commitment order under
Background
In May 2010, a Montgomery County trial court adjudicated Briggs to be a sexually violent predator and ordered him civilly committed under
Briggs attended a treatment program in El Paso County, as the civil commitment order required. In 2011, the treatment provider discharged Briggs from the El Paso program because Briggs failed to comply with a number of the program‘s requirements.
A grand jury then indicted Briggs for failure to comply with the order. The indictment provided that
THE GRAND JURY, for the County of Montgomery, State of Texas, ... upon their oaths present in and to said court that Darius Damascus Briggs, the Defendant ... in the County and State aforesaid, did then and there intentionally or knowingly violate civil commitment requirements of Section 841.082 of the Texas Health and Safety Code....
At trial, Briggs moved for a directed verdict on the ground that the indictment alleged that the offense had occurred in Montgomery County, while the State proffered evidence that the offense occurred in El Paso County. The trial court denied the motion.
Discussion
The
I. Statutory Venue
Standard of review
A challenge to the trial court‘s ruling on a motion for a directed verdict is a challenge to the sufficiency of the evidence to support the conviction. Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003); Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990). We review both legal and factual sufficiency challenges under the same standard of review. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact-finder could have found the essential elements of the charged offense proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009).
Venue is not a constituent element of an offense that must be proven beyond a reasonable doubt. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981). “To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue.”
The Legislature has adopted a venue statute for civil commitment violations of a sexually violent predator. It provides that “[a]n offense under Section 841.085, Health and Safety Code, may be prosecuted in the county in which any element of the offense occurs or in Montgomery County.”
Briggs observes that the State tried him in Montgomery County and alleged in the indictment that he committed the offense in Montgomery County, but at trial proved that he violated the conditions of his civil commitment in El Paso. Relying on Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001), he contends that a material variance exists between the indictment and proof at trial. Gollihar provides the test for determining whether a variance between an indictment and evidence at trial is material. 46 S.W.3d at 257.
In Gollihar, the State charged the defendant with theft of a go-cart with a certain model number, but the State‘s witness testified that a go-cart with a different model number was stolen. Id. at 244. The defendant raised a legal insufficiency challenge on appeal. Id. The Court of Criminal Appeals held that the variance between the model numbers was not a material variance. Id. at 258. The Court reaffirmed the fatal variance doctrine and adopted a test for determining whether a variance is material:
A variance between the wording of an indictment and the evidence presented at trial is fatal only if “it is material and prejudices [the defendant‘s] substantial rights.” When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.
Id. at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).
Briggs‘s reliance on Gollihar is misplaced in a case of statutory venue. When the State alleges venue in a county of prosecution that the Legislature has expressly authorized by statute, no variance exists between the indictment and the proof at trial. See Compton v. State, 105 Tex.Crim. 516, 289 S.W. 54, 55-56 (Tex.Crim.App.1926) (citing Act effective Sept. 1, 1925, 39th Leg., R.S., ch.2, art. 210 (amended 1973) (current version at
II. Legal Sufficiency
Briggs‘s challenge to the sufficiency of the evidence on the same basis is similarly without merit. Because Briggs was indicted and tried under
Conclusion
We hold that no material variance exists between the indictment and the proof at trial, and the evidence was legally sufficient to support Briggs‘s conviction. We therefore affirm the judgment of the trial court.