A defendant appealed his conviction for hindering a secured creditor, arguing that the state failed to prove that the trial court was the proper venue. He claimed that venue error was not subject to a “harm analysis” on appeal, meaning that not only was he not required to show that the error adversely affected his case, but that the error required the appellate court to reverse the conviction. The Texas Court of Criminal Appeals rejected this argument, holding that venue error is a “non-constitutional” reversible error that requires a harm analysis. Schmutz v. Texas, No. PD-0530-13, opinion (Tex. Crim. App., Jan. 298, 2014). It further found that any venue error in the trial court did not harm the appellant.
Texas appellate rules categorize reversible errors as constitutional and non-constitutional in nature. Tex. R. App. P. 44.2. An appellate court must reverse a conviction or order of punishment if it finds that a reversible error during trial court proceedings violated the defendant’s constitutional rights. This requirement applies whether or not the error caused harm or prejudice to the defendant’s case. State appellate rules require courts to disregard other reversible errors unless they “affect substantial rights.”
The present case involved a dispute over venue, which, in the case of Texas felony prosecutions, refers to the county that hears the trial proceedings. Venue is usually proper in the county where the offense occurred, Tex. Code Crim. P. Art. 13.18, but Texas law identifies numerous exceptions for specific offenses. In a case of allegedly hindering a secured creditor, Tex. Pen. Code § 32.33, state law allows venue in the county where the defendant obtained the secured property, the county where the defendant disposed of the secured property, or the county where the parties signed the security agreement. Tex. Code. Crim. P. Art. 13.09.
The defendant/appellant, according to the court’s opinion, entered into a consignment agreement with the complainant, a manufacturing company located in Titus County, to sell its farm and ranch equipment out of his retail store in Erath County. The defendant routinely picked up the equipment from the complainant and transported it to his store. After about two years, the agreement dissolved, and the appellant reportedly admitted to using sales proceeds to pay unrelated expenses. The complainant filed a civil lawsuit and a criminal complaint, claiming almost $90,000 in unpaid invoices.
Titus County charged the appellant with hindering a secured creditor. Throughout the pre-trial and trial proceedings, the appellant unsuccessfully challenged the venue. A jury convicted him, and the court sentenced him to five years’ community supervision and over $52,000 in restitution. On appeal, he argued that the state failed to prove that venue was proper in Titus County, since the actual hindering would have occurred in Erath County.
The Court of Criminal Appeals found that venue was a legitimate issue on appeal, since the appellant challenged it at every step of the proceeding. That, however, was the only matter on which it agreed with the appellant. It ruled that a venue error claim requires a harm analysis, that the state’s failure to prove venue does not mandate acquittal, and that any venue error in this case did not affect the appellant’s “substantial rights” in any way.
Board-certified criminal defense attorney Michael J. Brown has spent more than twenty years fighting for the rights of west Texas defendants in criminal cases. To schedule a confidential consultation regarding your legal matter, contact us today online or at (432) 687-5157.
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