Darius Damascus Briggs v. State , 455 S.W.3d 711 ( 2014 )

Opinion issued December 18, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00291-CR
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DARIUS DAMASCUS BRIGGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Court Cause No. 12-04-03646-CR
OPINION
A jury found Darius Damascus Briggs guilty of violating the terms of his
civil commitment order under Texas Health and Safety Code § 841.085, and it
assessed his punishment at confinement for life. See TEX. HEALTH & SAFETY
CODE ANN. § 841.085 (West 2014). On appeal, Briggs contends that the trial court
erred in overruling his motion for a directed verdict, because a material variance
exists between the indictment and the venue proof at trial. He further alleges that
the evidence is legally insufficient to support the verdict. Finding no error, we
affirm.
Background
In May 2010, a Montgomery County trial court adjudicated Briggs to be a
sexually violent predator and ordered him civilly committed under Texas Health
and Safety Code § 841.081. See TEX. HEALTH & SAFETY CODE ANN. § 841.081
(West 2014). The civil commitment order, in accordance with § 841.082, set forth
Briggs’s civil commitment requirements. See id. § 841.082 (West 2014).
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
....
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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 Texas Health and Safety Code § 841.085 provides that “[a] person
commits an offense if, after having been adjudicated and civilly committed as a
sexually violent predator under this chapter, the person violates a civil commitment
requirement imposed under Section 841.082.” TEX. HEALTH & SAFETY CODE ANN.
§ 841.085 (West 2014).
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
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elements of the charged offense proven beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v. State, 275
S.W.3d 512, 517 (Tex. Crim. App. 2009).
Analysis
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.” TEX. CODE CRIM. PROC.
ANN. art. 13.17 (West 2014). The State must allege venue in its indictment. Id.
art. 21.02. However, when the offense may be prosecuted in either of two
counties, “the indictment may allege the offense to have been committed in the
county where [it] is prosecuted, or in any county or place where the offense was
actually committed.” Id. art. 21.06.
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.” Id. art. 13.315. The
Code of Criminal Procedure provides that in all cases under Chapter 13, “the
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indictment . . . may allege that the offense was committed in the county where the
prosecution is carried on.” Id. art. 13.17.
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.
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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, 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 TEX. CODE CRIM. PROC. ANN. art. 13.17 (West 2014))) (holding
that no variance existed between indictment and proof at trial, when Code of
Criminal Procedure clearly stated that indictment could allege that offense was
committed in county of prosecution). In a case where two counties are proper for
venue, the State need only allege venue in the county where the case was
prosecuted—here, Montgomery County. See TEX. CODE CRIM. PROC. ANN. arts.
21.06, 13.17. Here, the State is statutorily authorized to allege that Briggs
committed the offense in the county of prosecution. Because Chapter 13 of the
Code of Criminal Procedure provides that a civil commitment violation “may be
prosecuted . . . in Montgomery County,” the State was not required to prove that
the offense occurred in Montgomery County. See id. art. 13.315.
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 § 841.085 of
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the Health and Safety Code, the State did not need to prove that an element of the
offense occurred in Montgomery County—Montgomery County is a statutorily
appropriate venue without regard to the location of the offense. See TEX. CODE
CRIM. PROC. ANN. art. 13.315 (West 2014); Michaels v. State, No. 01-13-00297-
CR, 2013 WL 5604757, at *4 (Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no
pet.) (mem. op.) (holding that because venue statute for civil commitment
authorized Montgomery County as appropriate venue, proof at trial was legally
sufficient to convict, even though witnesses did not affirm that offense occurred in
Montgomery County); see also Goodwin v. State, 416 S.W.3d 90, 94 (Tex. App.—
Beaumont 2013, no pet.) (“Having established that it was prosecuting an offense
under section 841.085, the State was not required to prove that Goodwin violated
the commitment order while he was in Montgomery County; under the venue
statute the location at the time of the offense was immaterial when the offense is
prosecuted in Montgomery County.”). Accordingly, we hold that the evidence was
legally sufficient to support Briggs’s conviction.
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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.
Jane Bland
Justice
Panel consists of Justices Higley, Bland, and Sharp.
Publish. TEX. R. APP. P. 47.2(b).
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