State v. Weaver

OPINION

McCORMICK, P.J.,

delivered the opinion of the Court

in which MANSFIELD, KELLER, HOLLAND and WOMACK, JJ„ joined.

Appellee was indicted in Harris County for theft of between $20,000 and $100,000. Pur*893suant to Section 31.09 of the Texas Penal Code, the indictment aggregated into a single offense various thefts from 32 complainants occurring over about a one-and-one-half year period of time. The indictment alleged these thefts were “pursuant to one scheme and continuing course of conduct.” Some of the individual thefts occurred inside Harris County and some of them occurred outside Harris County. The trial court granted ap-pellee’s motion to sever the non-Harris County thefts from the indictment. The effect of this reduced the provable theft loss from a third degree felony to a state jail felony.

The Court of Appeals decided the trial court erred to grant appellee’s motion to sever because Section 31.09 creates “one offense for purposes of venue.” State v. Weaver, 945 S.W.2d 334, 336 (Tex.App. — Houston [1st Dist.] 1997). We have exercised our discretionary authority to review this decision.

We understand appellee to argue the Court of Appeals legislated from the bench by effectively construing Section 31.09 to create a special venue statute in conflict with the general venue provision of Article 13.18, V.A.C.C.P. Appellee claims this violates Article III, Section 45, of the Texas Constitution, which, appellee claims, implicitly grants a criminal defendant “a right to proper venue” and “makes the adoption of special venue statutes the Legislature’s job.” Appellee also claims the Legislature did not intend that Section 31.09 create “one offense for purposes of determining proper venue for prosecution.” Appellee further suggests that aggregating the non-Harris County thefts with the Harris County thefts for trial in Harris County is inconsistent “with deep roots in our legal history” as expressed in the Magna Charta, the Declaration of Independence and the federal constitution. The State claims the Court of Appeals’ decision is consistent with the general venue provision of Article 13.18 and the legislative intent of Section 31.09.

Section 31.09 clearly provides that several thefts “pursuant to one scheme or continuing course of conduct” may be aggregated and “considered as one offense.”1 Each individual theft and its elements aggregated under Section 31.09 is an element of the single offense created by Section 31.09.

The general venue provision of Article 13.18 provides that if “venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.”2 When several thefts are aggregated into a single offense under Section 31.09, the proper county for prosecution under the “plain” language of Article 13.18 is any county in which the individual thefts or any element thereof occurred. Cf. Wood v. State, 573 S.W.2d 207, 210-11 (Tex.Cr.App.1978) (under Article 13.18, when elements of an offense are committed in more than one county, venue may be established in either county). Applying the “plain” language of Article 13.18 to this case, Harris County is a proper venue for prosecution of all the thefts aggregated into the single offense alleged in the indictment.

This gives effect to the “plain” language of Article 13.18, does not conflict with Article III, Section 45, of the Texas Constitution, and does not interpret Section 31.09 as creating a special venue statute in conflict with Article 13.18. This also does not violate principles expressed in the Magna Charta, the Declaration of Independence and the federal constitution. See Magna Charta, Section 18 (“Assizes of novel disseisin, and of mort d’ancestor, and of darrien presentment, shall not be taken but in their proper counties”); Declaration of Independence (“history of the present King of Britain is a history of re*894peated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over [the original thirteen] States” including transporting their citizens “beyond Seas to be tried for pretended offenses”); U.S. Const., Article III, Section 2 (trial of all crimes “shall be held in the State where the said Crimes shall have been committed”); U.S. Const, Amend. VI (in all criminal prosecutions accused shall have right to speedy and public trial by impartial jury “of the State and district wherein the crime shall have been committed”).

We also disagree with appellee’s contention that Section 31.09 does not create “one offense for purposes of determining proper venue for prosecution.” Appellee seems to claim that each theft aggregated under Section 31.09 must be treated as a separate offense for purposes of determining venue under Article 13.18. See Weaver, 945 S.W.2d at 335 (“appellee contends the State must still prove venue as to each theft under the aggregated theft statute”).

However, this conflicts with the “plain” language of Section 31.09 which expressly creates “one offense” and makes no express distinctions between trans-county aggregated thefts and single county aggregated thefts. This Court also has held that Section 31.09 creates one offense for purposes of severance, jurisdiction, punishment and limitations. See Graves v. State, 795 S.W.2d 185, 187 (Tex. Cr.App.1990); Wages v. State, 573 S.W.2d 804, 806 (Tex.Cr.App.1978). We decline to construe Section 31.09 differently for purposes of venue. Therefore, we decide Section 31.09 creates one offense for purposes of venue.

We also note this is consistent with the legislative history of Section 31.09. See Tex. Gov’tCd., Section 311.023(3) (in construing a statute, whether or not the statute is considered ambiguous on its face, courts may consider its legislative history). The 63rd Legislature intended to make few substantive changes to existing law when it adopted the 1974 penal code. See Acts 1973, 63rd Leg., p. 883, ch. 399, Section 1, eff. January 1, 1974; Hearings on SB 34 before the Senate Committee on Criminal Jurisprudence, 63rd Leg., (May 8, 1973); Debate on SB 34 on Senate Floor, 63rd Leg., (May 15, 1973); Hearings on HB 514 (the House substitute for SB 34) before the House Subcommittee on Criminal Jurisprudence, 63rd Leg., (March 12, 1973); Debate on HB 514 on House Floor, 63rd Leg., (May 18,1973). The main purpose of the 1974 penal code was to simplify and codify existing law into one code.

However, the 63rd Legislature with the support of the prosecution and defense bars intended to make several significant changes to then existing theft laws. See, e.g., Hearings on HB 514 (the House substitute for SB 34) before the House Subcommittee on Criminal Jurisprudence, 63rd Leg., (March 12, 1973) (Date Whitworth and Frank Maloney testifying). One significant change was the consolidation of various separately defined theft offenses such as theft by false pretext, conversion by a bailee, swindling by worthless cheek, etc.,3 into one offense that said “thou shalt not steal.” See, e.g., Debate on SB 34 on Senate Floor, 63rd Leg., (May 15, 1973); Debate on HB 514 on House Floor, 63rd Leg., (May 18, 1973). This was intended to simplify the theft law, “reduce reversals on technicalities,” and make Texas’ theft laws “fit [the] complexities of the 20th century.” See, e.g., Debate on SB 34 on Senate Floor, 63rd Leg., (May 15, 1973); Debate on HB 514 on House Floor, 63rd Leg., (May 18, 1973).

Another significant change in then existing theft laws was the addition of what is now Section 31.09. Before this, individual thefts “pursuant to one scheme or continuing course of conduct” usually had to be separately prosecuted. See Practice Commentary to Section 31.09 (common law restricted scope of theft to single victim and a single time and place; if more than one victim or more than one time was involved, more than one theft was committed). This usually meant a thief who “pursuant to one scheme or continuing course of conduct” stole x amount from various victims at different times could not be as severely punished as a thief who stole the same amount from one *895victim at one time even though the Legislature considered these two thieves to be equally culpable.

The 63rd Legislature intended to change this when it adopted Section 31.09. The main purpose of adding Section 31.09 was to allow for aggregation of each theft into a single offense to increase the punishment range for a thief who commits various thefts “pursuant to one scheme or continuous course of conduct.” See, e.g., Hearings on HB 514 (the House substitute for SB 34) before the House Subcommittee on Criminal Jurisprudence, 63rd Leg., (March 12, 1973) (Dain Whitworth and Frank Maloney testifying).

The various committee hearings and floor debates in both the House and the Senate support this construction of Section 31.09. For example, Judge Maloney testified before the House Subcommittee on Criminal Jurisprudence on March 12, 1973, that the intent of Section 31.09 was “to bundle [the individual thefts] all up and prosecute as one offense” for a defendant with the same modus oper-andi “regardless of when” each individual theft occurred. See id. The prosecution and defense bars agreed on this point. See id.

There is no indication the 63rd Legislature intended Section 31.09 to apply only to a thief who commits multiple thefts in the same county. There is no indication the 63rd Legislature intended to treat thieves who commit multiple thefts in the same county any differently from thieves who commit multiple thefts in different counties. However, appellee interprets Section 31.09 to contain this distinction. The legislative history of Section 31.09 is to the contrary.

The judgment of the Court of Appeals is affirmed.

MEYERS, J., filed a concurring opinion. PRICE, J., filed a concurring and dissenting opinion. OVERSTREET, J., filed a dissenting opinion, in which BAIRD, J., joined.

. Section 31.09 provides:

“When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”

. The parties do not claim the specific venue provision of Article 13.08, V.A.C.C.P., applies to this case. Article 13.08 provides:

"Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.”

. See V.T.C.A., Penal Code, Section 31.02.