Rufus Lee Hollis v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00037-CR
RUFUS LEE HOLLIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Rufus Lee Hollis appeals his conviction for assault. See Tex.
Penal Code Ann. § 22.01(a)(1) (West 2011). In a sole point, Hollis argues that
venue in Tarrant County was not proved by a preponderance of the evidence.
We overrule Hollis’s point and affirm the trial court’s judgment. See Tex. R. App.
P. 43.2(a).
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See Tex. R. App. P. 47.4.
Hollis and his wife were divorcing. While trying to divide some of their
property, Hollis and his daughter got into a fist fight over a PlayStation video
game console. Hollis contended that his daughter physically attacked him and
he was merely defending himself. Hollis’s wife called police, and Hollis was
arrested. A jury convicted Hollis of assault, and the trial court sentenced him to
90 days’ confinement, probated for one year. Hollis appeals, arguing that the
evidence is insufficient to show by a preponderance that venue in Tarrant County
was proper.
Venue is established in the county where the offense occurred. See Tex.
Code Crim. Proc. Ann. art. 13.18 (West 2005). Venue is not considered an
element of the crime; therefore, venue need only be proved by a preponderance
of the evidence. See id. art. 13.17; Valdez v. State, 993 S.W.2d 346, 349 (Tex.
App.—El Paso 1999, pet. ref’d). Proof of venue may be by direct or
circumstantial evidence, and the factfinder may make reasonable inferences from
the evidence. See Couchman v. State, 3 S.W.3d 155, 161 (Tex. App.—Fort
Worth 1999, pet. ref’d); Valdez, 993 S.W.2d at 349. In the context of a
sufficiency challenge, the preponderance of the evidence equates to more than a
scintilla. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).
Evidence that is “‘so weak as to do no more than create a mere surmise or
suspicion of its existence’” or that causes the factfinder to “‘guess whether a vital
fact exists’” is less than a scintilla and does not equate to a preponderance. Id.
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(quoting with approval Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) and
City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005)).
Here, the assault was committed at Hollis’s home at 2213 Meadow Lake
Drive in Grand Prairie, Texas. Grand Prairie consists of four counties, including
Dallas County and Tarrant County. When police officers were dispatched to the
home, they were told it was in Tarrant County. Indeed, one police officer noted
on his report that the offense occurred in Tarrant County. The information
alleged that the offense occurred in Tarrant County. At trial, a forensic video
analyst testified that, through a computer mapping program, he determined that
the house was located in Dallas County, but only approximately ninety yards
from the boundary line between Dallas County and Tarrant County. Further, the
State introduced a map of the area where Hollis’s house is located, which
indicated the county line in relation to the house. Hollis’s daughter testified that
there were three houses between Hollis’s house and the county line on the map.
Hollis admitted that his house is less than four football fields away from the
county line.
Hollis argues that the preponderance of the evidence fails to show that the
site of the offense was within 400 yards of the county line. “An offense
committed on the boundaries of two or more counties, or within four hundred
yards thereof, may be prosecuted and punished in any one of such counties.”
Tex. Code Crim. Proc. Ann. art. 13.04 (West 2005); see also Rushing v. State,
546 S.W.2d 610, 611 (Tex. Crim. App. 1977). Hollis attacks the legal import of
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the evidence showing the proximity of his house to the boundary between
Tarrant County and Dallas County: “[T]he quantum of evidence should be more
than ‘believe,’ ‘appears’ or to be provided by some ephemeral computer that is
neither verified or corroborated.” However, the cumulative evidence discussed
above is sufficient to show by a preponderance that the offense occurred within
400 yards of the boundary between Dallas County and Tarrant County. The jury
weighed the evidence and reasonably concluded that the assault was committed
within 400 yards of the boundary between Dallas County and Tarrant County.
See, e.g., Holdridge v. State, 707 S.W.2d 18, 22 (Tex. Crim. App. 1986); Shilling
v. State, 977 S.W.2d 789, 790 (Tex. App.—Fort Worth 1998, pet. ref’d); Woodruff
v. State, Nos. 02-11-00337-CR, 02-11-00338-CR, 02-11-00339-CR, 02-11-
00340-CR, 02-11-00341-CR, 02-11-00342-CR, 02-11-00343-CR, 2012 WL
3041114, at *10 (Tex. App.—Fort Worth July 26, 2012, pet. ref’d) (mem. op., not
designated for publication); Riley v. State, Nos. 03-10-00229-CR, 03-10-00263-
CR, 03-10-00264-CR, 2011 WL 5335387, at *3 (Tex. App.—Austin Nov. 4, 2011,
pet. ref’d) (mem. op., not designated for publication); Hernandez v. State, No. 11-
02-00292-CR, 2004 WL 67634, at *2 (Tex. App.—Eastland Jan. 15, 2004, no
pet.) (not designated for publication). We therefore overrule Appellant’s sole point
and affirm the trial court’s judgment.
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LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 9, 2013
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