                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00037-CR


RUFUS LEE HOLLIS                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Rufus Lee Hollis appeals his conviction for assault. See Tex.

Penal Code Ann. § 22.01(a)(1) (West 2011). In a sole point, Hollis argues that

venue in Tarrant County was not proved by a preponderance of the evidence.

We overrule Hollis’s point and affirm the trial court’s judgment. See Tex. R. App.

P. 43.2(a).



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       See Tex. R. App. P. 47.4.
      Hollis and his wife were divorcing. While trying to divide some of their

property, Hollis and his daughter got into a fist fight over a PlayStation video

game console. Hollis contended that his daughter physically attacked him and

he was merely defending himself.       Hollis’s wife called police, and Hollis was

arrested. A jury convicted Hollis of assault, and the trial court sentenced him to

90 days’ confinement, probated for one year. Hollis appeals, arguing that the

evidence is insufficient to show by a preponderance that venue in Tarrant County

was proper.

      Venue is established in the county where the offense occurred. See Tex.

Code Crim. Proc. Ann. art. 13.18 (West 2005).         Venue is not considered an

element of the crime; therefore, venue need only be proved by a preponderance

of the evidence. See id. art. 13.17; Valdez v. State, 993 S.W.2d 346, 349 (Tex.

App.—El Paso 1999, pet. ref’d).          Proof of venue may be by direct or

circumstantial evidence, and the factfinder may make reasonable inferences from

the evidence. See Couchman v. State, 3 S.W.3d 155, 161 (Tex. App.—Fort

Worth 1999, pet. ref’d); Valdez, 993 S.W.2d at 349.           In the context of a

sufficiency challenge, the preponderance of the evidence equates to more than a

scintilla. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).

Evidence that is “‘so weak as to do no more than create a mere surmise or

suspicion of its existence’” or that causes the factfinder to “‘guess whether a vital

fact exists’” is less than a scintilla and does not equate to a preponderance. Id.




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(quoting with approval Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) and

City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005)).

      Here, the assault was committed at Hollis’s home at 2213 Meadow Lake

Drive in Grand Prairie, Texas. Grand Prairie consists of four counties, including

Dallas County and Tarrant County. When police officers were dispatched to the

home, they were told it was in Tarrant County. Indeed, one police officer noted

on his report that the offense occurred in Tarrant County.         The information

alleged that the offense occurred in Tarrant County. At trial, a forensic video

analyst testified that, through a computer mapping program, he determined that

the house was located in Dallas County, but only approximately ninety yards

from the boundary line between Dallas County and Tarrant County. Further, the

State introduced a map of the area where Hollis’s house is located, which

indicated the county line in relation to the house. Hollis’s daughter testified that

there were three houses between Hollis’s house and the county line on the map.

Hollis admitted that his house is less than four football fields away from the

county line.

      Hollis argues that the preponderance of the evidence fails to show that the

site of the offense was within 400 yards of the county line.           “An offense

committed on the boundaries of two or more counties, or within four hundred

yards thereof, may be prosecuted and punished in any one of such counties.”

Tex. Code Crim. Proc. Ann. art. 13.04 (West 2005); see also Rushing v. State,

546 S.W.2d 610, 611 (Tex. Crim. App. 1977). Hollis attacks the legal import of


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the evidence showing the proximity of his house to the boundary between

Tarrant County and Dallas County: “[T]he quantum of evidence should be more

than ‘believe,’ ‘appears’ or to be provided by some ephemeral computer that is

neither verified or corroborated.” However, the cumulative evidence discussed

above is sufficient to show by a preponderance that the offense occurred within

400 yards of the boundary between Dallas County and Tarrant County. The jury

weighed the evidence and reasonably concluded that the assault was committed

within 400 yards of the boundary between Dallas County and Tarrant County.

See, e.g., Holdridge v. State, 707 S.W.2d 18, 22 (Tex. Crim. App. 1986); Shilling

v. State, 977 S.W.2d 789, 790 (Tex. App.—Fort Worth 1998, pet. ref’d); Woodruff

v. State, Nos. 02-11-00337-CR, 02-11-00338-CR, 02-11-00339-CR, 02-11-

00340-CR, 02-11-00341-CR, 02-11-00342-CR, 02-11-00343-CR, 2012 WL

3041114, at *10 (Tex. App.—Fort Worth July 26, 2012, pet. ref’d) (mem. op., not

designated for publication); Riley v. State, Nos. 03-10-00229-CR, 03-10-00263-

CR, 03-10-00264-CR, 2011 WL 5335387, at *3 (Tex. App.—Austin Nov. 4, 2011,

pet. ref’d) (mem. op., not designated for publication); Hernandez v. State, No. 11-

02-00292-CR, 2004 WL 67634, at *2 (Tex. App.—Eastland Jan. 15, 2004, no

pet.) (not designated for publication). We therefore overrule Appellant’s sole point

and affirm the trial court’s judgment.




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                                       LEE GABRIEL
                                       JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 9, 2013




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