IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 10, 2006
______________________________BRUCE D. CARRINGTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-402,456; HON. BRAD UNDERWOOD, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Through one point of error, Bruce D. Carrington (appellant) contends that his conviction for aggravated robbery should be reversed and remanded for a new punishment hearing. This is required due to the purported failure of the State to provide adequate pretrial notice of its intent to use a prior felony conviction to enhance punishment. According to the record, written notice was given appellant on the Friday preceding commencement of trial on Monday. Yet, trial did not actually begin until Wednesday. Nevertheless, when the State attempted to broach the matter at trial and appellant objected to its use, the trial court asked if appellant desired a continuance. He said that he did not because he knew of it; instead, he requested that the State simply be prevented from utilizing the conviction to enhance punishment. Given these circumstances, any purported error in the State notifying appellant at the time it did was harmless. Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.-Waco 2005, pet. ref'd) (the error was rendered harmless when appellant failed to seek a continuance). Accordingly, we overrule the point and affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
Jackson v. State,105 S.W.3d at 328, we must conclude that the matter was not in dispute.
Nor does the record affirmatively illustrate that venue was not established. For instance, appellant herself introduced testimony indicating that she resided in Hart, Texas, and the incident occurred in her home. We judicially notice that Hart, Texas, lies within the boundaries of Castro County, the county specified in the indictment as the locale of the crime. See Tex. R. Evid. 201(b) (permitting a court to take judicial notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); 1.70 Acres v. State, 935 S.W.2d 480, 489 (Tex. App. -Beaumont 1996, no writ) (stating that a court may take judicial notice of the location of cities, counties, and boundaries because geographical facts such as these are easily ascertainable and capable of verifiable certainty). Similarly, an officer testified that the "event" happened in Castro County. The State also produced evidence that the first doctor to examine the child victim provided services to the local hospital which was in the Castro County Hospital District. Furthermore, the Hart, Texas, Police Department conducted the investigation. Finally, documentation appearing of record indicated that appellant and her daughter (i.e. the victim) maintained a post office box in Hart, Texas. Though appellant may contend that the foregoing litany of evidence does not prove that the crime occurred in Castro County, it nonetheless prevents us from concluding that the record affirmatively illustrates that venue in Castro County was not established.
In sum, neither element mentioned in Rule 44.2(c)(1) was satisfied. So, we must presume that venue was established in the trial court, overrule appellant's issue, and affirm the trial court's judgment.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).