On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case No. 17-CR-0229
Aaron Scott Yocham was a suspect in a hit-and-run in Galveston County. The Friendswood police located him in Galveston County and, after obtaining a search warrant, took him to a hospital for a blood draw to determine if he was intoxicated. In the process, Yocham spit in an officer's face, which led to a felony charge of harassment of a public servant.
TEX. PENAL CODE § 22.11(a)(3). --------
During the Galveston trial on the felony-offense charge, Yocham moved for a directed verdict, arguing that there was insufficient evidence to support venue in Galveston County because the hospital where Yocham spat in the officer's face is in the adjacent Harris County. Yocham's motion was denied, he was convicted, and now, in a single issue, he appeals the sufficiency of the venue evidence.
Because the record does not support a conclusion that venue in Galveston County affected Yocham's substantial rights, we hold that error, if any, was harmless and affirm.
A large truck collided with another vehicle in Galveston County. The truck's driver did not stop to provide information. The other driver followed the truck and called the Friendswood police. Friendswood police officers located the truck in a Galveston County apartment complex. The truck had significant front-end damage, and Yocham was found sitting in the driver's seat.
When the police interacted with Yocham, they determined his speech was slurred, he "wasn't really making a lot of sense," and there was a strong odor of alcohol. Yocham was arrested. During an inventory of the truck's contents, the police discovered an open container of alcohol.
Officers S. Berry and S. McCaffrey testified that Yocham was belligerent and used vulgar language while at the Friendswood jail. Yocham repeatedly called the officers vulgar names. Because the police suspected that Yocham had driven while intoxicated, they requested that Yocham perform field-sobriety testing and submit to a voluntary blood draw. Yocham refused. The officers sought and obtained a search warrant for a blood draw to determine Yocham's blood-alcohol content. Once the search warrant issued, McCaffrey and Officer K. Cahill took Yocham to the Clear Lake Regional Hospital for the blood draw. McCaffrey described Yocham's behavior during the car ride as "combative," "hostile," and "derogatory."
Once they arrived at the Clear Lake Regional Hospital, Yocham refused to cooperate and had to be physically carried into the hospital as he lunged about and insulted the officers. The officers physically held him down for the blood draw. Yocham screamed obscenities throughout the encounter. The officers then returned Yocham to the police car.
As Yocham resisted, Officers McCaffrey and Cahill placed a seatbelt around Yocham. While Cahill was still leaning over Yocham, having just secured the seatbelt, Yocham called Cahill a derogatory name and spat in his face. The hospital security staff led Cahill back into the hospital to get "cleaned up." McCaffrey and Cahill then drove Yocham to the Friendswood jail in Galveston County.
Cahill was asked about the location of various events during and after Yocham's arrest. He also was asked to describe how the Friendswood Police Department handles offenses that cross into neighboring counties, given that their jurisdiction includes areas of Galveston, Harris, and Brazoria counties. Cahill testified that charges typically are pursued "in the county where the investigation or the arrest began." In this case, the hit-and-run occurred in Galveston County, Yocham was located and arrested in Galveston County, Yocham was held at a jail in Galveston County, Yocham was taken to Clear Lake Regional Hospital in Harris County for the blood draw, and then Yocham was returned to the jail in Galveston County. Cahill agreed that the hospital is in Harris County and, therefore, the spitting incident must have occurred in Harris County.
After Officer Cahill's testimony, the State rested and Yocham moved for a directed verdict. Yocham argued that venue was improper in Galveston County because the offense of harassment of a public servant was based on the spitting incident in Harris County. The State responded with two arguments: first, the harassment offense was part of a criminal transaction; and second, Yocham had formed his intent to harass and annoy Cahill while in Galveston County, and his intent "travel[ed]" with him from Galveston County to Harris County and back. The trial court denied Yocham's motion, and trial continued.
Yocham testified. He stated that he is not a resident of either Galveston County or Harris County. Instead, he lives in the adjacent Brazoria County. He conceded that he had engaged in much of the behavior that the police officers described. He agreed that he had been drinking before his arrest, was uncooperative with the officers, and called them various names. But Yocham denied that he spat on Officer Cahill.
The jury found Yocham guilty of the felony offense of harassment of a public servant, assessed punishment at confinement for eight years, and recommended that his sentence be probated for eight years. The trial court entered a judgment of conviction, assessed punishment at eight years of confinement, but suspended the sentence for eight years while Yocham is under community supervision. Yocham appealed.
Penal Code Section 22.11 on Harassment of a Public Servant
Harassment of a public servant is criminalized by Section 22.11 of the Penal Code, which provides, in part, that a person commits an offense "if, with the intent to assault, harass, or alarm, the person . . . causes another person the actor knows to be a public servant to contact the . . . saliva . . . of the actor . . . while the public servant is lawfully discharging an official duty or in retaliation or on account of . . . an official duty." TEX. PENAL CODE § 22.11(a)(3). The offense is a third-degree felony punishable by imprisonment in the Texas Department of Criminal Justice for a term between two and ten years and a fine not to exceed $10,000. Id. §§ 22.11(b) (third-degree-felony designation), 12.34 (punishment for third-degree felonies).
Venue in a Criminal Trial
In a single issue, Yocham argues the State presented insufficient evidence to support venue in Galveston County and the error requires an acquittal.
A. Standard to establish and review venue in criminal proceedings
Venue and jurisdiction are two distinct concepts. Etchieson v. State, 574 S.W.2d 753, 759 (Tex. Crim. App. 1978). Jurisdiction concerns the authority of a court to try a case whereas venue concerns the place or county where a case may be tried. Id.; Donovan v. State, 232 S.W.3d 192, 196 (Tex. App.—Houston [1st Dist.] 2007), aff'd, 68 S.W.3d 633 (Tex. Crim. App. 2002). The Galveston County district court had jurisdiction to try this felony case, without regard to where in Texas the offense was committed. TEX. CONST. art. V, § 8; Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981). The issue in this appeal is not jurisdictional; instead, it is whether venue in Galveston County was proper.
Because no specific venue provision applies to the offense of harassment of a public servant, venue is determined under the general venue provision. The general venue provision provides that "the proper county for the prosecution of offenses is that in which the offense was committed." TEX. CODE CRIM. PROC. art. 13.18. When conduct constituting a single offense is committed in more than one county, venue under the general venue rule is proper in any of those counties. See State v. Weaver, 982 S.W.2d 892, 893 (Tex. Crim. App. 1998).
Venue is not a "criminative fact" or "element of the offense" under Texas law. Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). Venue need not be proven beyond a reasonable doubt, and the State's failure to prove venue does not negate the guilt of the accused. Fairfield, 610 S.W.2d at 779. Instead, an appeal of the denial of a directed verdict challenging the sufficiency of venue evidence is reviewed to determine whether the State met its burden to prove by a preponderance of the evidence that the county where the offense was prosecuted had venue. Meraz v. State, 415 S.W.3d 502, 506 (Tex. App.—San Antonio 2013, pet. ref'd). Venue may be established with direct or circumstantial evidence, and a jury may make reasonable inferences from the evidence to decide the venue issue. Thierry v. State, 288 S.W.3d 80, 92 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
Failure to prove venue by a preponderance of the evidence is non-constitutional error that is reviewed for harm under Rule 44.2(b) of the Rules of Appellate Procedure. Schmutz, 440 S.W.3d at 39; TEX. R. APP. P. 44.2(b). We determine harm under Rule 44.2(b) by analyzing whether the non-constitutional error affected the criminally convicted's substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Schmutz, 440 S.W.3d at 39. We do not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not influence the factfinder or had only a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In assessing the likelihood that a jury's decision was adversely affected by error, we consider the entire record, including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire, if applicable. Schmutz, 440 S.W.3d at 39. Important considerations include the nature of the evidence supporting the verdict and the character of the alleged error. Id. Other considerations could include whether the State emphasized the error and whether overwhelming evidence of guilt was present. Id.
B. Any error was harmless
Yocham argues the offense of harassment is based on his act of causing Officer Cahill "to contact the . . . saliva . . . of the actor" in Harris County. See TEX. PENAL CODE § 22.11(a)(3). He contends venue was improper in Galveston County and the trial court erred in denying his motion for directed verdict. Even if we were to accept Yocham's argument and agree that venue was improper in Galveston County, we cannot reverse the trial court's judgment without first determining that the error was harmful. See Thompson v. State, 244 S.W.3d 357, 365-66 (Tex. App.—Tyler 2006, pet. dism'd).
Yocham does not address harm in his appellate brief. Our review of the record assures us that, even if the State failed to establish venue in Galveston County, the venue did not influence the factfinder or, at most, had only a slight effect, making the error, if any, harmless.
Venue rules seek a connection between the criminal acts in question and the location of the criminal trial. Id. at 362. They are intended to ensure that jurors have a natural interest in the case because it touches on their community. Id. at 366 (citing 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 2.02 (2d ed. 2001)). The Friendswood police work in Galveston County as well as Harris County. They arrested Yocham for criminal acts in Galveston County, and Yocham refused field-sobriety testing and a consensual blood draw in Galveston County. The police drove him to a hospital for a warrant-authorized blood draw and, in the process, Yocham berated the community police officers and spit in one officer's face. The Galveston County jurors had an interest in this behavior directed at their community's officers.
Yocham is not a resident of Galveston County or Harris County. He lives in Brazoria County. There is no indication that venue was inconvenient for him in Galveston County, given that he would have traveled to an adjacent county with either venue option. There is no showing that Yocham was prevented from presenting a defense because of the venue allegation. Nor is there any suggestion that the Galveston County jury was anything but impartial. Furthermore, there is no indication that the State was forum shopping by trying him in Galveston County. See id. at 365-66 (analyzing similar factors to conclude that venue error was harmless).
Yocham makes no argument in support of a finding of harm. We fail to see how trial in Galveston under these facts had any effect on the factfinder's verdict. We therefore conclude that error, if any, in trying this criminal matter in Galveston County instead of Harris County was harmless.
Sarah Beth Landau
Justice Panel consists of Justices Keyes, Higley, and Landau. Do not publish. TEX. R. APP. P. 47.2(b).