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NUMBER 13-05-713-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STANLEY EUGENE CLARK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 122nd District Court of Galveston County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Garza
A jury convicted appellant, Stanley Eugene Clark, of aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2004‑05). The court assessed punishment at 30 years= confinement. By two issues, appellant challenges his conviction contending that the trial court erred in (1) denying his motion for instructed verdict because venue was improper in Galveston County, and (2) in granting the State=s challenges for cause based on venire members= answers to the Aone witness rule.@ For the reasons that follow, we affirm.
I. Motion for Instructed Verdict
In his first issue, appellant contends that the trial court erred in denying his motion for instructed verdict. Specifically, he claims that the State did not prove that the offense occurred in Galveston County, Texas, as alleged by the indictment. The State responds that the evidence presented at trial, that one of the offenses took place in Texas City, which is located in Galveston County, supports the jury=s finding that the offense occurred in Galveston County.[1]
We treat a challenge to the trial court=s denial of a motion for instructed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id.
As a general rule, venue is proper in the county in which a sexual offense is alleged to have taken place. Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon 2005). The burden of proof is on the State to establish proper venue by a preponderance of the evidence. Id. at art. 13.17 (Vernon 2005). Failure to prove venue in the county of prosecution is reversible error. See Black v. State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983).
The child victim testified that appellant assaulted her twice, once while she was living at the Gulf Royale Apartments in Texas City, which is located in Galveston County, and a second time while she was living in Houston, which is in Harris County. We hold that this evidence is sufficient to prove venue in Galveston County; therefore, we overrule appellant=s first issue.[2]
II. Challenge for Cause
In his second issue, appellant contends that the trial court abused its discretion by granting the State's twenty-four challenges for cause because the State's questions called for an improper commitment on the part of venire persons regarding the Aone witness rule.@ The standard of review for granting a challenge for cause and overall conduct of the voir dire process is clear abuse of discretion. Colburn v.State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998).
The rule is clearly set forth in Castillo: If these jurors were challenged for cause simply because they needed more than one witness to convict, then they were invalidly challenged for cause. If they were challenged for cause because they could not convict based upon one witness whom they believed beyond a reasonable doubt, and whose testimony proved every element of the indictment beyond a reasonable doubt, then they were validly challenged for cause. See Castillo v. State, 913 S.W.2d 529, 533-34 (Tex. Crim. App. 1995); see also Lee v. State, 2006 Tex. Crim. App. LEXIS 1005 at *9-10 (Tex. Crim. App. May 24, 2006).
The State=s questioning was as follows:
STATE: When I was asking you questions earlier about the one witness rule, do you recall that?
VENIRE PERSON: No.
STATE: Let me rephrase it briefly. If all the State had was one witness and you believed that one witness beyond a reasonable doubt on what the accusation is, what the charge is, could you convict at that point or would you require the State to bring you a second or third witness?
VENIRE PERSON: I=d need more. I=d need more evidence.
STATE: Would you require the State to bring you more evidence, is my question. I understand you may need more evidence - -
VENIRE PERSON: Yes.
Throughout voir dire, the State asked the other venire members whether they would need more proof, even if they already believed beyond a reasonable doubt that the evidence - testimony from one person - showed that the appellant had committed the offense. The venire members who answered Ayes@ essentially said that they were not able to follow the law because they would not convict even if they believed beyond a reasonable doubt that the defendant was guilty of the crime. The State moved to challenge those venire members for cause under the Aone witness rule.@
The language used by the State is consistent with the language of Castillo that gave rise to a valid challenge for cause because a juror acknowledged in his voir dire that Aeven if [he] heard one eyewitness and [he] believed the witness beyond a reasonable doubt and that eyewitness' testimony proved the indictment beyond a reasonable doubt, [he] would still require additional evidence before [he] would return a verdict of guilty[.]@ See Castillo, 913 S.W.2d at 533-34; Lee, 2006 Tex. Crim. App. LEXIS 1005 at *11.
Accordingly, we conclude that the trial court did not abuse its discretion in allowing the challenges for cause. Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
_______________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 6th day of July, 2006.
[1] During trial, the victim testified that she had been sexually assaulted by appellant on two separate occasions, once in Houston (Harris County) and once in Texas City (Galveston County). See Tex. R. Evid. 201.
[2] To the extent that appellant suggests that the introduction of testimony concerning the Houston offense confused the jury as to which offense they were convicting him of, we find this argument without merit. The indictment clearly states that the offense charged took place in Galveston County. Further, the jury charge instructs the jury to find that appellant committed sexual assault in Galveston County. In addition, the State=s closing argument clearly explains to the jury that the State proved beyond a reasonable doubt that the offense occurred at the victim=s residence in Texas City and that appellant was not on trial for the offense that occurred in Harris County. We generally presume the jury follows the trial court's instructions in the manner presented. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (jury presumed to follow court's instructions as given).