Opinion issued December 18, 2014.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00291-CR
                          ———————————
                 DARIUS DAMASCUS BRIGGS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 435th District Court
                         Montgomery County, Texas
                   Trial Court Cause No. 12-04-03646-CR



                                OPINION

      A jury found Darius Damascus Briggs guilty of violating the terms of his

civil commitment order under Texas Health and Safety Code § 841.085, and it

assessed his punishment at confinement for life. See TEX. HEALTH & SAFETY

CODE ANN. § 841.085 (West 2014). On appeal, Briggs contends that the trial court
erred in overruling his motion for a directed verdict, because a material variance

exists between the indictment and the venue proof at trial. He further alleges that

the evidence is legally insufficient to support the verdict. Finding no error, we

affirm.

                                   Background

      In May 2010, a Montgomery County trial court adjudicated Briggs to be a

sexually violent predator and ordered him civilly committed under Texas Health

and Safety Code § 841.081. See TEX. HEALTH & SAFETY CODE ANN. § 841.081

(West 2014). The civil commitment order, in accordance with § 841.082, set forth

Briggs’s civil commitment requirements. See id. § 841.082 (West 2014).

      Briggs attended a treatment program in El Paso County, as the civil

commitment order required. In 2011, the treatment provider discharged Briggs

from the El Paso program because Briggs failed to comply with a number of the

program’s requirements.

      A grand jury then indicted Briggs for failure to comply with the order. The

indictment provided that

      THE GRAND JURY, for the County of Montgomery, State of Texas,
      . . . upon their oaths present in and to said court that Darius Damascus
      Briggs, the Defendant . . . in the County and State aforesaid, did then
      and there intentionally or knowingly violate civil commitment
      requirements of Section 841.082 of the Texas Health and Safety Code
      ....



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At trial, Briggs moved for a directed verdict on the ground that the indictment

alleged that the offense had occurred in Montgomery County, while the State

proffered evidence that the offense occurred in El Paso County. The trial court

denied the motion.

                                    Discussion

      The Texas Health and Safety Code § 841.085 provides that “[a] person

commits an offense if, after having been adjudicated and civilly committed as a

sexually violent predator under this chapter, the person violates a civil commitment

requirement imposed under Section 841.082.” TEX. HEALTH & SAFETY CODE ANN.

§ 841.085 (West 2014).

I. Statutory Venue

      Standard of review

      A challenge to the trial court’s ruling on a motion for a directed verdict is a

challenge to the sufficiency of the evidence to support the conviction. Canales v.

State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Madden v. State, 799 S.W.2d

683, 686 (Tex. Crim. App. 1990). We review both legal and factual sufficiency

challenges under the same standard of review. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). Under this standard, evidence is insufficient to

support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational fact–finder could have found the essential


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elements of the charged offense proven beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009).

      Analysis

      Venue is not a constituent element of an offense that must be proven beyond

a reasonable doubt. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App.

1981). “To sustain the allegation of venue, it shall only be necessary to prove by

the preponderance of the evidence that by reason of the facts in the case, the

county where such prosecution is carried on has venue.” TEX. CODE CRIM. PROC.

ANN. art. 13.17 (West 2014). The State must allege venue in its indictment. Id.

art. 21.02.   However, when the offense may be prosecuted in either of two

counties, “the indictment may allege the offense to have been committed in the

county where [it] is prosecuted, or in any county or place where the offense was

actually committed.” Id. art. 21.06.

      The Legislature has adopted a venue statute for civil commitment violations

of a sexually violent predator.        It provides that “[a]n offense under Section

841.085, Health and Safety Code, may be prosecuted in the county in which any

element of the offense occurs or in Montgomery County.” Id. art. 13.315. The

Code of Criminal Procedure provides that in all cases under Chapter 13, “the




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indictment . . . may allege that the offense was committed in the county where the

prosecution is carried on.” Id. art. 13.17.

      Briggs observes that the State tried him in Montgomery County and alleged

in the indictment that he committed the offense in Montgomery County, but at trial

proved that he violated the conditions of his civil commitment in El Paso. Relying

on Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001), he contends that a

material variance exists between the indictment and proof at trial.       Gollihar

provides the test for determining whether a variance between an indictment and

evidence at trial is material. 46 S.W.3d at 257.

      In Gollihar, the State charged the defendant with theft of a go-cart with a

certain model number, but the State’s witness testified that a go-cart with a

different model number was stolen. Id. at 244. The defendant raised a legal

insufficiency challenge on appeal. Id. The Court of Criminal Appeals held that

the variance between the model numbers was not a material variance. Id. at 258.

The Court reaffirmed the fatal variance doctrine and adopted a test for determining

whether a variance is material:

      A variance between the wording of an indictment and the evidence
      presented at trial is fatal only if “it is material and prejudices [the
      defendant’s] substantial rights.” When reviewing such a variance, we
      must determine whether the indictment, as written, informed the
      defendant of the charge against him sufficiently to allow him to
      prepare an adequate defense at trial, and whether prosecution under
      the deficiently drafted indictment would subject the defendant to the
      risk of being prosecuted later for the same crime.
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Id. at 257 (quoting U.S. v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).

      Briggs’s reliance on Gollihar is misplaced in a case of statutory venue.

When the State alleges venue in a county of prosecution that the Legislature has

expressly authorized by statute, no variance exists between the indictment and the

proof at trial. See Compton v. State, 289 S.W. 54, 55–56 (Tex. Crim. App. 1926)

(citing Act effective Sept. 1, 1925, 39th Leg., R.S., ch.2, art. 210 (amended 1973)

(current version at TEX. CODE CRIM. PROC. ANN. art. 13.17 (West 2014))) (holding

that no variance existed between indictment and proof at trial, when Code of

Criminal Procedure clearly stated that indictment could allege that offense was

committed in county of prosecution). In a case where two counties are proper for

venue, the State need only allege venue in the county where the case was

prosecuted—here, Montgomery County. See TEX. CODE CRIM. PROC. ANN. arts.

21.06, 13.17.    Here, the State is statutorily authorized to allege that Briggs

committed the offense in the county of prosecution. Because Chapter 13 of the

Code of Criminal Procedure provides that a civil commitment violation “may be

prosecuted . . . in Montgomery County,” the State was not required to prove that

the offense occurred in Montgomery County. See id. art. 13.315.

II. Legal Sufficiency

      Briggs’s challenge to the sufficiency of the evidence on the same basis is

similarly without merit. Because Briggs was indicted and tried under § 841.085 of
                                          6
the Health and Safety Code, the State did not need to prove that an element of the

offense occurred in Montgomery County—Montgomery County is a statutorily

appropriate venue without regard to the location of the offense. See TEX. CODE

CRIM. PROC. ANN. art. 13.315 (West 2014); Michaels v. State, No. 01-13-00297-

CR, 2013 WL 5604757, at *4 (Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no

pet.) (mem. op.) (holding that because venue statute for civil commitment

authorized Montgomery County as appropriate venue, proof at trial was legally

sufficient to convict, even though witnesses did not affirm that offense occurred in

Montgomery County); see also Goodwin v. State, 416 S.W.3d 90, 94 (Tex. App.—

Beaumont 2013, no pet.) (“Having established that it was prosecuting an offense

under section 841.085, the State was not required to prove that Goodwin violated

the commitment order while he was in Montgomery County; under the venue

statute the location at the time of the offense was immaterial when the offense is

prosecuted in Montgomery County.”). Accordingly, we hold that the evidence was

legally sufficient to support Briggs’s conviction.




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                                    Conclusion

      We hold that no material variance exists between the indictment and the

proof at trial, and the evidence was legally sufficient to support Briggs’s

conviction. We therefore affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.

Publish. TEX. R. APP. P. 47.2(b).




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