Schmutz v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0530-13

RANDY SCHMUTZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
TITUS COUNTY

A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J., and P RICE,
W OMACK, J OHNSON, H ERVEY, and C OCHRAN, JJ., joined. K EASLER, J., concurred.
M EYERS, J., filed a dissenting opinion.

OPINION

In this case we are asked to decide whether a claim of venue error is subject to review

for harm on appeal. We conclude that venue error at trial is subject to a review for harm by

using the standard for non-constitutional errors described in Rule 44.2(b) of the Texas Rules

of Appellate Procedure. See T EX. R. A PP. P. 44.2(b). Applying that standard to this case, we

determine that the State’s failure to prove venue as alleged was harmless because the record
 Schmutz–2

fails to show that appellant’s substantial rights were affected by the venue of his trial, which

occurred at one of the places permitted under Article 13.09 of the Texas Code of Criminal

Procedure, the specialized venue statute applicable to this case.1 We, therefore, overrule the

two grounds presented in the petition for discretionary review filed by Randy Schmutz,

appellant, who contends that the court of appeals erred (1) by determining that the State’s

failure to prove venue as alleged was subject to harm analysis instead of automatic reversal,

and (2) by finding the venue error in his case to be harmless.2 See Schmutz v. State, No. 06-

12-00059-CR, 2013 Tex. App. LEXIS 3068, 2013 WL 1188994, at *2 (Tex.

App.—Texarkana Mar. 22, 2013) (mem. op., not designated for publication). We affirm the

judgment of the court of appeals.

1
Texas Code of Criminal Procedure Article 13.09 provides:

If secured property is taken from one county and unlawfully disposed of in another
county or state, the offender may be prosecuted either in the county in which such
property was disposed of, or in the county from which it was removed, or in the
county in which the security agreement is filed.

TEX . CODE CRIM . PROC. art. 13.09.
2
Appellant’s petition presents two grounds:

1. Whether the court of appeals erred by concluding that the State’s failure to prove venue
in the instant case was subject to harmless-error review, in contravention of this Court’s
holding in Jones v. State, 979 S.W.2d 652 (1998), which reiterated the longstanding rule in
Texas that venue error, once established, results in reversal and acquittal.

2. Whether, assuming the State’s failure to prove venue is subject to harmless-error review,
the court of appeals erred by concluding that the State’s trial of [appellant] in Titus County,
in defiance of the applicable venue provision, constituted harmless error.
 Schmutz–3

I. Background

A. Facts

Appellant signed an operating agreement with Priefert Manufacturing Co., Inc., the

complainant in this case, to sell Priefert’s farm and ranch equipment on consignment.

Appellant agreed to sell this equipment at his retail store in Stephenville, located in Erath

County. Priefert delivered its equipment to appellant’s retail store from its headquarters in

Mount Pleasant, located in Titus County. Appellant picked up inventory at Priefert’s

headquarters on several occasions and traveled back to his store. After making sales at his

store, appellant reported them daily to Priefert’s headquarters. Priefert then sent invoices to

appellant for the wholesale price of the equipment that had been sold and the cost of the

freight.

After the businesses operated under the agreement for over two years, the relationship

dissolved by early 2003, when appellant closed his store and admitted to using proceeds from

the equipment sales to pay other financial obligations. Priefert filed civil and criminal

complaints against appellant in Titus County to recover the unpaid invoices that totaled

nearly $90,000. Appellant filed for bankruptcy and discharged his civil liability. The

criminal case, however, proceeded to trial.

B. Trial Proceedings

Appellant was indicted in Titus County for the offense of hindering a secured creditor

by misappropriating the proceeds of secured property, a third-degree felony. See T EX. P ENAL
 Schmutz–4

C ODE § 32.33(e), (e)(5) (establishing offense as third-degree felony when the value of

misappropriated property totals between $20,000 and $100,000). The indictment alleged that

venue lay in Titus County based on appellant’s “sell[ing] or dispos[ing] of secured property”

there. See T EX. C ODE C RIM. P ROC. art. 13.09. The undisputed facts at trial, however,

showed that appellant sold property in Erath, not Titus, County. Titus County was the county

from which the property had been removed, but the State’s indictment did not allege that

theory as a basis for venue.

Appellant repeatedly challenged venue on the ground that he had not disposed of any

property in Titus County, as the State had alleged in the indictment. On this basis, he filed

a pretrial motion to quash, requested a directed verdict after the State rested its case-in-chief,

and requested a jury instruction on the special venue provisions in Article 13.09. See T EX.

C ODE C RIM. P ROC. art. 13.09. The trial court denied these requests. The jury convicted

appellant of hindering a secured creditor and recommended community supervision.

Accordingly, the trial court sentenced appellant to five years of community supervision and

ordered him to pay restitution totaling $52,681.57.

C. Appellate Proceedings

Appellant appealed his conviction to the court of appeals. In light of the record that

conclusively showed no property was disposed in Titus County, the court of appeals held that

the State “failed to prove the venue facts it alleged,” and that this constituted error. Schmutz,

2013 Tex. App. LEXIS 3068, 2013 WL 1188994, at *2. The central dispute on appeal
 Schmutz–5

concerned the appropriate harm analysis: Whether the State’s failure to prove venue required

reversal without a harm analysis, as appellant suggested, or whether it required a harm

analysis as non-constitutional error and was harmless, as the State suggested. More

specifically, the parties disputed the applicability of this Court’s opinion in Black v. State,

645 S.W.2d 789, 791 (Tex. Crim. App. 1983).

Over thirty years ago in Black, this Court held that “[w]hen venue is made an issue

in the trial court, failure to prove venue in the county of prosecution constitutes reversible

error.” Id. Appellant argued that Black requires automatic acquittal when the State fails to

prove venue as alleged. The State responded that, since Black was decided, the Texas Rules

of Appellate Procedure were amended and that under the current appellate rules this error is

subject to review for harm under the non-constitutional-error standard.

The court of appeals disagreed with appellant. Schmutz, 2013 WL 1188994, at *2.

As a preliminary matter, it determined that, because appellant disputed venue at trial, the

State was not entitled to an appellate presumption that venue was proven. See id. at *2; T EX.

C ODE C RIM. P ROC. art. 13.17; T EX. R. A PP. P. 44.2(c)(1). With respect to the parties’ dispute

about the continued validity of Black’s holding, which required acquittal “when venue was

not proven as alleged,” the court observed that Black “predate[d] the 1997 amendment of

Rule 44.2(b) of the Texas Rules of Appellate Procedure that requires harm analysis” for non-

constitutional trial errors. Schmutz, 2013 WL 1188994, at *3; see T EX. R. A PP. P. 44.2(b).

Surveying the post-amendment case law, the court found that some courts of appeals still
 Schmutz–6

applied Black’s holding,3 but that other courts of appeals held that the State’s failure to prove

venue was subject to a harm analysis as non-constitutional error. Schmutz, 2013 WL

1188994, at *3 (citing Dewalt v. State, 307 S.W.3d 437, 460 (Tex. App.—Austin 2010, pet.

ref’d) (applying harm analysis in dicta); Thompson v. State, 244 S.W.3d 357, 364–66 (Tex.

App.—Tyler 2006, pet. dism’d) (applying harm analysis); State v. Blankenship, 170 S.W.3d

676, 681–84 (Tex. App.—Austin 2005, pet. ref’d) (same)). The court concluded that,

although this Court has not expressly overruled Black, this Court’s “action in refusing review

of” those decisions applying a harm analysis to venue error “suggests the demise of the

required acquittal and the vitality of using a harm analysis” under Rule 44.2(b). Id. After

determining that the error was subject to review under the standard for harm described in

Rule 44.2(b), the court held that the State’s failure to prove venue did not harm appellant.

Id. at *3–4.

II. Venue Errors Are Subject to Review for Harm

In his first ground, appellant contends that venue error is not subject to a harm

analysis and requires automatic reversal. He contends that the court of appeals, therefore,

erred by applying the harm standard for non-constitutional error. To support his contentions,

appellant presents three arguments: First, appellant suggests that the failure to prove venue,

3
The court of appeals cited several cases as “continu[ing] to render an acquittal in cases in
which venue was not proven as alleged.” See Schmutz v. State, No. 06-12-00059-CR, 2013 Tex.
App. LEXIS 3068, 2013 WL 1188994, at *3 (Tex. App.—Texarkana Mar. 22, 2013) (mem. op., not
designated for publication) (citing Jones v. State, 979 S.W.2d 652, 659 (Tex. Crim. App. 1998);
Lemoine v. State, 85 S.W.3d 385, 389 (Tex. App.—Corpus Christi 2002, pet. ref’d); and Stewart v.
State, 44 S.W.3d 582 (Tex. Crim. App. 2001)).
 Schmutz–7

similar to failure to prove an element of the offense, makes the evidence legally insufficient

to sustain his conviction and requires acquittal. Second, appellant contends that failure to

prove venue is structural error requiring reversal and acquittal on the error alone without a

harm analysis. Third, appellant argues that acquittal for venue error is mandatory under

Black, which has never been overruled by this Court. See Black, 645 S.W.2d at 791. As we

explain more fully below, we are unpersuaded that the State’s failure to prove venue as

alleged requires automatic reversal.

A. Venue Error Does Not Render Evidence Legally Insufficient

Appellant argues that the State’s failure to prove venue requires that this Court acquit

him of the offense for legally insufficient evidence under Jackson v. Virginia. See Jackson,

443 U.S. 307, 319, 99 S. Ct. 2781 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim.

App. 2013). In Jackson, the Supreme Court held that, to be sufficient, the evidence must be

adequate for a fact finder to rationally find “the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319. Appellant’s argument that Jackson requires

acquittal for venue error is unavailing because venue is procedurally and substantively

different from elements of the offense.

As it is not a “criminative fact,” venue is not an “element of the offense” under Texas

law. See Boyle v. State, 820 S.W.2d 122, 140 (Tex. Crim. App. 1989), overruled on other

grounds by Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1989); Fairfield v. State, 610

S.W.2d 771, 779 (Tex. Crim. App. 1981) (panel op.); Edwards v. State, 427 S.W.2d 629, 636
 Schmutz–8

(Tex. Crim. App. 1968). An “element” is a fact that is legally required for a fact finder to

convict a person of a substantive offense. See Jackson, 443 U.S. at 315 (proof beyond a

reasonable doubt required of “every fact necessary to constitute the crime with which he is

charged”) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (2007)); see also

T EX. P ENAL C ODE A NN. § 1.07 (defining “elements of offense” to include conduct, result,

and culpability elements, as well as “negation of any exception”). Professors Dix and

Schmolesky have explained that the remedy for venue error is properly distinguished from

that for insufficient evidence:

If it can be determined that the basis of the acquittal is the failure to prove
venue, reprosecution should not be barred because an appellate reversal for
failure to prove venue is merely a finding concerning the geographic location
where the case may be tried, and it is not a finding of insufficient evidence of
a required element of the offense or even a finding that the court lacked
jurisdiction.

40 G EORGE E. D IX & J OHN M. S CHMOLESKY, T EXAS P RACTICE S ERIES: C RIMINAL P RACTICE

AND P ROCEDURE § 5:60 (3d ed. 2013). Although venue must be proven “at trial to establish

a defendant’s [legal] status,” that “does not convert” venue into an “element[] of the

proscribed offense[].” State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998) (citing

venue and jurisdiction as separate from elements of offense).

Furthermore, unlike elements of an offense that must be proven beyond a reasonable

doubt under Jackson, the Texas Rules of Appellate Procedure permit appellate courts to

presume that venue was proven unless venue is “disputed in the trial court” or “the record

affirmatively shows the contrary.” Compare T EX. R. A PP. P. 44.2(c)(1) (permitting appellate
 Schmutz–9

presumption on proof of venue), with Jackson, 443 U.S. at 316 (noting Due Process clause

requires evidentiary review for sufficiency of proof “of every element of the offense”).

Because venue is not an element of the offense, the court of appeals properly

determined that failure to prove venue does not implicate sufficiency of the evidence, nor

does it require acquittal under Jackson. Compare Jackson, 443 U.S. at 319, with Black, 645

S.W.2d at 791, and Lyles v. State, 257 S.W.2d 310, 311 (Tex. Crim. App. 1953).

B. Failure to Prove Venue Is Not Structural or Constitutional Error

Appellant suggests that the State’s failure to prove venue is structural error that

requires automatic reversal with no harm analysis or, alternatively, that it is federal

constitutional error subject to a harm analysis under Rule of Appellate Procedure 44.2(a).

Addressing both contentions below, we conclude that both are without merit.

“A ‘structural’ error ‘affect[s] the framework within which the trial proceeds, rather

than simply an error in the trial process itself,’” and is not amenable to a harm analysis.

Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008) (quoting Arizona v.

Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246 (1991)). All structural errors must be

founded on a violation of a federal constitutional right, but not all violations of federal

constitutional rights amount to structural errors. See Davila v. United States, 133 S. Ct. 2139,

2149 (2013) (stating that structural errors constitute a “highly exceptional category”); United

States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159 (2010) (stating that “structural errors

are a very limited class of errors that affect the framework within which the trial proceeds”)
 Schmutz–10

(quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544 (1997)); Fulminante,

499 U.S. at 306–08 (Supreme Court has “applied harmless-error analysis to a wide range of

[constitutional] errors and has recognized that most constitutional errors can be harmless”);

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (citing Fulminante to hold no

error “categorically immune” to harm analysis “[e]xcept for certain federal constitutional

errors labeled by the United States Supreme Court as ‘structural’”). Other than sufficiency

review under the Due Process Clause, which we have already decided is inapplicable to

venue error, the only other federal constitutional right identified by appellant is the

“vicinage” or “venue” clause of the Sixth Amendment to the federal Constitution. See U.S.

C ONST., amends. VI (“In all criminal prosecutions, the accused shall enjoy the right to a . .

. trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law . . . .”) (emphasis

added); XIV; see T EX. R. A PP. P. 44.2(a). But the vicinage clause has never been included

in those errors described as structural by the Supreme Court. See Davila, 133 S. Ct. at 2149

(not including venue as type of structural error).

Furthermore, we now expressly hold that the federal vicinage clause is inapplicable

in Texas state courts. See Cook v. Morrill, 783 F.2d 593, 595 (5th Cir. 1986) (“[I]t is the

rule in this circuit that the sixth amendment right of vicinage does not apply to state

prosecutions.”); Blankenship, 170 S.W.3d at 683 (“Neither federal nor state authorities”

require vicinage clause’s application in state prosecutions) (internal citations omitted); Garza
 Schmutz–11

v. State, 974 S.W.2d 251, 259 (Tex. App.—San Antonio 1998, pet. ref’d) (same); Bath v.

State, 951 S.W.2d 11, 19 (Tex. App.—Corpus Christi 1997, pet. ref’d) (same). As the Court

of Appeals for the Fifth Circuit explained, the vicinage clause is not “fundamental and

essential to a fair trial” and, therefore, is not a federal constitutional right that is binding on

state courts. Cook, 783 F.2d at 595. Although other state and federal courts are split on the

issue, a majority of those courts that have considered the issue have held that the vicinage

provision is inapplicable to the states. See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir.

2004) (collecting cases); Price v. Superior Court, 25 P.3d 618, 629 (Cal. 2001) (“Vicinage

is not a right that is fundamental and essential to the purpose of the constitutional right to jury

trial, the test for incorporation from the Fourteenth Amendment suggested in Duncan and

Williams”) (citing Williams v. Florida, 399 U.S. 78, 86, 90 S. Ct. 1893 (1970), and Duncan

v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444 (1968)). We agree with the majority view

that the federal Constitution’s vicinage clause does not apply to state prosecutions. Our

conclusion is logically consistent with the court of appeals’s determination in this case that

venue error is non-constitutional and subject to harm analysis under Rule of Appellate

Procedure 44.2(b). See Schmutz, 2013 WL 1188994, at *3; see also State v. Paiz, 817

S.W.2d 84, 85 (Tex. Crim. App. 1991); Price, 25 P.3d at 628–34.

Appellant relies on this Court’s opinion in Paiz to support his argument that the

vicinage clause of the Sixth Amendment is applicable in Texas, but we find the reasoning of

that case unpersuasive. See Paiz, 817 S.W.2d at 85. In Paiz, the appellant, a resident of
 Schmutz–12
another state who had failed to pay child support in Texas, challenged the trial court’s

jurisdiction based on the federal Constitution’s vicinage clause. This Court rejected his

challenge and expressly stated that it had “found no case from the United States Supreme

Court holding that the Sixth Amendment’s vicinage provision is applicable to the states,” but,

even “[a]ssuming arguendo that the vicinage provision is applicable to state prosecutions,”

the Court concluded that it would pose “no impediment to this state’s assertion of criminal

jurisdiction” in that case. Id. at 86. This Court in Paiz thus avoided answering the question

of whether the vicinage clause was applicable to the States because it was not required to do

so in order to resolve the issues in that case. Id.

We conclude that venue error does not implicate the vicinage clause of the Sixth

Amendment to the federal Constitution or the Due Process Clause of the Fourteenth

Amendment, and that, given its statutory foundation in Article 13.09 of the Texas Code of

Criminal Procedure, the State’s failure to prove venue as alleged is not structural or

constitutional error.4 See T EX. C ODE C RIM. P ROC. art. 13.09; compare Davila, 133 S. Ct. at

2149.

C. This Court’s Precedent Necessarily Overruled Cases Automatically
Reversing for Venue Error

The parties dispute whether the 1997 amendments to the Texas Rules of Appellate

Procedure implicitly abrogated Black’s analysis of venue error and whether this Court’s

4
Because appellant has failed to raise any constitutional-error claim based on the Texas
Constitution, we do not address it here.
 Schmutz–13
decision in Jones v. State signifies that venue error is subject to automatic reversal even after

the amendment to the Texas Rules of Appellate Procedure. See Jones v. State, 979 S.W.2d

652, 659 (Tex. Crim. App. 1998).5 We agree with the State that this Court’s precedent

necessarily overrules Black to the extent to which that case provides for automatic reversal

based on venue error. See Schmutz, 2013 WL 1188994, at *3; Black, 645 S.W.2d at 791.

Although at the time that Black was decided this Court generally applied the harm

standard in Chapman v. California, which permitted an appellate court to find error harmless

beyond a reasonable doubt, no discussion of a harm analysis for venue error occurred in

Black or in any of the cases on which Black relied. See Saylor v. State, 660 S.W.2d 822,

824–25 (Tex. Crim. App. 1983) (applying standard from Chapman v. California, 386 U.S.

18, 87 S. Ct. 824 (1967)). When this Court decided Black, it discussed the absence of

evidence to prove venue and reversed for a new trial without conducting any harm analysis.

See Black, 645 S.W.2d at 791 (holding that Black’s motion for acquittal in light of State’s

failure to prove venue was improperly denied and reversing and remanding cause). Black

cited to Romay v. State, 442 S.W.2d 399, 400 (Tex. Crim. App. 1969), which followed a long

5
The parties also relied on several other court of appeals cases that were (1) issued before the
1997 amendment of the Texas Rules of Appellate Procedure, see, e.g., Knabe v. State, 836 S.W.2d
837 (Tex. App.—Fort Worth 1992, pet. ref’d), (2) reversed because venue was held proper, see, e.g.,
Stewart v. State, 8 S.W.3d 832 (Tex. App.—Beaumont 2000), rev’d, 44 S.W.3d 582 (Tex. Crim.
App. 2001), Soliz v. State, 60 S.W.3d 162 (Tex. App.—Houston [14th Dist.] 2001), rev’d, 97 S.W.3d
137 (Tex. Crim. App. 2003), (3) dicta, see, e.g., Dewalt v. State, 307 S.W.3d 437, 460 (Tex.
App.—Austin 2010, pet. ref’d), or (4) reversing for venue error without any analysis, see, e.g.,
Lemoine v. State, 85 S.W.3d 385, 389 (Tex. App.—Corpus Christi 2002, pet. ref’d) (merely citing
Jones v. State, 979 S.W.2d 652, 659 (Tex. Crim. App. 1998) and Jackson v. Virginia, 443 U.S. 307,
318–19, 99 S. Ct. 2781 (1979)).
 Schmutz–14
line of cases in which this Court reversed and remanded without a harm analysis when venue

was not established. See Barrett v. State, 8 S.W.2d 133, 134 (Tex. Crim. App. 1928)

(reversing for failure to prove venue and “remand[ing] for a new trial”); Robertson v. State,

132 S.W.2d 276 (Tex. Crim. App. 1939) (same). Appellant is correct, therefore, that Black

represented a “longstanding rule” of Texas law at the time it was decided.

Since Black was decided, however, Texas case law and the rules of appellate

procedure, in accordance with decisions by the Supreme Court, have set forth three different

harm standards applicable to various types of errors. First, this Court held in Cain v. State

that errors categorized by the Supreme Court as structural are reversed automatically without

a harm analysis. Cain, 947 S.W.2d at 264 (holding that former Rule 81(b)(2) of the Texas

Rules of Appellate Procedure requires harm analysis for all trial errors except those held

“structural” by Supreme Court); see Mercier v. State, 322 S.W.3d 258, 262, 263 (Tex. Crim.

App. 2010) (“Cain’s holding [is] that only errors labeled as structural . . . are immune from

a harm analysis”); Gray v. State, 159 S.W.3d 95, 96 (Tex. Crim. App. 2005) (“Cain issued

a ‘broad mandate’ that brought the overwhelming majority of errors within the purview of

a harm analysis.”) (citing Gonzales v. State, 994 S.W.2d 170, 171–72 (Tex. Crim. App.

1999)). Second, errors categorized as non-structural constitutional errors require reversal of

a conviction unless the appellate court determines that the error did not contribute to the

conviction or punishment. See T EX. R. A PP. P. 44.2(a) (“If the appellate record in a criminal

case reveals constitutional error that is subject to harmless error review, the court of appeals
 Schmutz–15
must reverse a judgment of conviction or punishment unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.”). This

rule was premised on former Texas Rule of Appellate Procedure 81(b)(2). See Aguirre-Mata

v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999); see former T EX. R. A PP. P. 81(b)(2),

49 T EX. B.J. 581 (Tex. Crim. App. 1986, amended 1997). Third, an error that is non-

constitutional that does not affect a defendant’s substantial rights must be disregarded. T EX.

R. A PP. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”). The harm standard applicable to non-constitutional

errors was added in the 1997 amendment to the appellate rules in Texas.

Only structural error requires reversal without any harm analysis, and the failure to

prove venue has not been labeled as structural error by the Supreme Court. This Court’s

holding in Cain, which applies a harm analysis to non-structural errors, necessarily overruled

Black’s holding that venue error, a non-structural error, is subject to automatic reversal. See

Cain, 947 S.W.2d at 264; Mercier, 322 S.W.3d at 262; Gray, 159 S.W.3d at 96. We,

therefore, agree with the court of appeals that to this extent Black is no longer binding

precedent. See Schmutz, 2013 WL 1188994, at *3 (citing Blankenship, 170 S.W.3d at

682–83).

Suggesting that this Court intended for venue error to continue to warrant automatic

reversal without any harm analysis, appellant cites to Jones, which was decided after this

Court’s decision in Cain and after the amendment to the rules of appellate procedure. In
 Schmutz–16
Jones, the defendant in that case was convicted for theft by receiving, and this Court reversed

his conviction based on venue error without conducting a harm analysis. Jones, 979 S.W.2d

at 653, 659. Jones made no mention of Black, Cain, or any appellate rules and did not

consider whether venue error was structural or harmless error. Id. at 659. In the absence of

any analysis as to why it was not applying a harm standard, we are unpersuaded that this

Court intended for Jones to stand for the proposition that venue error would be reversible

without a harm analysis. Id. The procedural posture of Jones provides a further explanation

for this Court’s decision. Jones’s offense and the court of appeals’s decision all occurred by

April 30, 1997, before both the effective date of the 1997 amendment to the Texas Rules of

Appellate Procedure and our decision in Cain. See Jones v. State, 945 S.W.2d 852 (Tex.

App.—Waco 1997); Cain, 947 S.W.2d at 262; 60 Tex. B. J. 876 (1997) (1997 amendments

to Rules of Appellate Procedure effective September 1, 1997). We are unpersuaded that

Jones undermines this Court’s holding in Cain and its progeny and the rules of appellate

procedure, as amended.6

III. The State’s Failure to Prove Venue In This Case Was Harmless Error

6
In Texas, the Legislature requires reversal of civil cases for venue error. See TEX . PRAC. &
REM . CODE ANN . § 15.064(b). Section 15.064(b) states, “On appeal from the trial on the merits, if
venue was improper it shall in no event be harmless error and shall be reversible error. In
determining whether venue was or was not proper, the appellate court shall consider the entire
record, including the trial on the merits.” Id. As our sister court, the Supreme Court of Texas, has
explained, “The procedure [of automatic reversal of venue error on appeal is] mandated by this
statute” and “there is no misunderstanding its plain language: an appellate court is obliged to conduct
an independent review of the entire record to determine whether venue was proper.” Ruiz v. Conoco,
Inc., 868 S.W.2d 752, 757–58 (Tex. 1993). No such statute exists for criminal cases.
 Schmutz–17
Having determined that the failure to prove venue does not implicate a federal

constitutional right, we review the court of appeals’s application of Rule 44.2(b) of the Texas

Rules of Appellate Procedure to determine whether appellant was harmed by the State’s

failure to prove the venue theory it alleged in this case. In his second ground, appellant

contends that the court of appeals erred in holding that the venue error did not affect his

substantial rights. See Schmutz, 2013 WL 1188994, at *3. The court held that the venue

error was harmless because (1) there was no record evidence that the trial in Titus County

was the result of forum shopping or that it particularly inconvenienced or misled appellant,

prevented him from presenting a defense, deprived him of a fair judge or jury, or would

encourage the State to repeat this type of error in the future; (2) venue was actually proper

based on the prerequisites of Article 13.09 of the Texas Code of Criminal Procedure because

the evidence conclusively showed that property was removed from Titus County; and (3) the

prosecutor’s closing argument did not so emphasize the error as to constitute harm. Id.

A. For Harm, Venue Error Must Affect Appellant’s Substantial Rights

Under Texas Rule of Appellate Procedure 44.2(b), a non-constitutional error “that

does not affect substantial rights must be disregarded.” T EX . R. A PP. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or influence

in determining the jury’s verdict. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). In assessing the likelihood that the jury’s decision was adversely affected by the error,

an appellate court considers everything in the record. Id. This includes testimony, physical
 Schmutz–18
evidence, jury instructions, the State’s theories and any defensive theories, closing

arguments, and voir dire, if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim.

App. 2003). Important factors include the nature of the evidence supporting the verdict, the

character of the alleged error and how it might be considered in connection with other

evidence in the case, and may include whether the State emphasized the error and whether

overwhelming evidence of guilt was present. Id.

Included within the factors in its harm analysis, the court of appeals considered

whether finding the error harmless would “encourage the State to repeat the error.” Schmutz,

2013 WL 1188994, at *3. We note that this is no longer a proper consideration when

conducting a harm analysis under Rule 44.2(b). See Snowden v. State, 353 S.W.3d 815, 818

n.9, 820 (Tex. Crim. App. 2011); Mason v. State, 322 S.W.3d 251, 258 n.10 (Tex. Crim.

App. 2010) (rejecting use of repeat-error factor in 44.2(b) analysis from Harris v. State, 790

S.W.2d 568, 587–88 (Tex. Crim. App. 1989)). We, therefore, exclude that consideration, but

otherwise examine the record as a whole to assess whether appellant was actually harmed by

the error. See Mason, 322 S.W.3d at 258 n.10; Motilla, 78 S.W.3d at 355.

B. The Venue Error Did Not Affect Appellant’s Substantial Rights

Appellant contends that the venue error caused him harm because (1) he was

inconvenienced by the venue’s location being “more than 200 miles from his home”; (2) the

Titus County jury pool was biased or partial because its members “lived in the shadow of”

Priefert and “were well aware of” its status as a major local employer; and (3) the venue’s
 Schmutz–19
status as Priefert’s headquarters was its “only apparent connection” to the offense and under

Article 13.09, venue would not be proper in Titus County. Reviewing each of appellant’s

challenges to the court of appeals’s harm analysis, we agree with the appellate court that the

venue error was harmless.

Appellant cites the venue’s 200-mile traveling distance from his home as an

inconvenience. See Schmutz, 2013 WL 1188994, at *1. Trial testimony, however, indicated

that appellant had traveled to Titus County to sign the operating agreement with Priefert and

meet with its corporate officers in 2003, and that he had traveled there to pick up Priefert

inventory “a lot of times.” The venue of the trial, therefore, was one to which the parties

regularly traveled to conduct their mutual business and did not harm appellant. Thompson,

244 S.W.3d at 365–66 (trial in county adjacent to that in which Thompson lived and offense

occurred not harmful).

Appellant also suggests that the location of the trial resulted in a jury biased in favor

of Priefert. The record on voir dire does not support this claim. See Bell v. State, 938

S.W.2d 35, 46 (Tex. Crim. App. 1996) (discussing voir dire’s utility for detecting

“community climate”). The record shows that both parties questioned the venire extensively

about their pretrial knowledge of the case and their connection to Priefert, and its personnel.

Several prospective jurors indicated past or current employment or personal relationships

with Priefert and they were eliminated from the jury for cause. We conclude, therefore, that

the court correctly found no evidence of partiality by the jury or judge. See Schmutz, 2013
 Schmutz–20
WL 1188994, at *3.

We also agree with the appellate court’s observation that venue would “likely” have

been proper in Titus County under Article 13.09 as the county from which Priefert’s secured

property was “removed.” Id. at *3. Appellant argues to the contrary that venue was not

proper in Titus County under any of Article 13.09’s three potential venues because the terms

of a specific-venue statute should be read “in light of the terms of the penal statute to which

it applies,” which in this case is the statute for hindering a secured creditor, Texas Penal

Code Section 32.33. See T EX. P ENAL C ODE A NN. § 32.33 (West 2012); Wooten v. State, 331

S.W.2d 22, 24 (Tex. App.—Amarillo 2010, pet. ref’d) (noting Article 13.09 provides three

potential venues). Particularly, appellant contends that the statute for hindering secured

creditors in Section 32.33 includes a definition of “remove,” which “means transport, without

the effective consent of the secured party, from the state in which the property was located

when the security interest or lien attached.” T EX. P ENAL C ODE A NN. § 32.33(a)(1). He

argues that this definition should apply to the otherwise undefined word “removed” in Article

13.09, which provides for venue “in the county from which [secured property] was

removed,” among other places. See id.; T EX. C ODE C RIM. P ROC. art. 13.09. We agree with

the court of appeals’s conclusion that the term “removed” as it is used in Article 13.09 should

be interpreted in accordance with its plain meaning, which is to “change the location,

position, station, or residence of.” W EBSTER’S N EW C OLLEGIATE D ICTIONARY 997 (9th ed.,

1988); see Schmutz, 2013 WL 1188994, at *2 n.7; Boykin v. State, 818 S.W.2d 782, 785
 Schmutz–21
(Tex. Crim. App. 1991) (where meaning of statute should have been plain to enacting

Legislature, “we ordinarily give effect to that plain meaning” unless literal application would

produce absurd results). This approach is supported by the fact that Penal Code Section

32.33 expressly restricts its definition of “remove” to “for purposes of this section.” T EX.

P ENAL C ODE A NN. § 32.33(a). Furthermore, our interpretation conforms to our

understanding that special venue statutes, as a general matter, exist to “expand the number

of counties in which an offense may be prosecuted” rather than restricting them. Soliz v.

State, 97 S.W.3d 137, 141 (Tex. Crim. App. 2003); see Murphy v. State, 112 S.W.3d 592,

604 (Tex. Crim. App. 2003) (noting some specific venue statutes apply by virtue of facts,

while others “expressly apply to identifiable penal offenses”). We, therefore, conclude that

the special venue statute at issue in this case is not so limited in scope as appellant suggests.

In considering the totality of the record, we note that we also agree with the court of

appeals’s analysis that the State’s closing argument concerning venue did not harm appellant.

In closing, appellant’s counsel reiterated the lack of any evidentiary support for proper venue

and emphasized that, given this evidentiary failure, “I think you can infer why we’re here.

. . . Where is Priefert Manufacturing located? Who knows Priefert Manufacturing Company?

The citizens of Titus County. Mr. Bill Priefert, born and raised here.” In his closing

argument, the prosecutor responded,

Titus County, okay? We’re not in Titus County because Priefert is in Titus
County. We’re in Titus County because Priefert Manufacturing is in Titus
County, and Priefert Manufacturing manufactured the property, and the
property was shipped from Titus County. And so the venue statute says that
 Schmutz–22
where the property is sent from, so that’s where we get it.

Appellant immediately objected, and the trial court instructed the jury to “be bound by your

own recollection of what you heard[,] the evidence and your own recollection.” Although

the State’s closing argument erroneously told the jury that venue was permissible in Titus

County because the property was sent from there, a matter not included in the jury

instructions, we cannot conclude that this argument harmed appellant in light of this record

that includes evidence that appellant agreed to conduct business in Titus County, often

traveled to Titus County to accept the property that is the basis for his conviction, and

traveled to Titus County for meetings related to this business with Priefert.

IV. Conclusion

We hold that the venue error was harmless under the non-constitutional error standard

described in article 44.2(b) of the Texas Rules of Appellate Procedure. We, therefore, affirm

the judgment of the court of appeals.

Delivered: January 29, 2014

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