      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00114-CR



                                     Sara Dishman, Appellant

                                                   v.

                                    The State of Texas, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-13-0046, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Appellant Sara Dishman was charged with the offenses of theft and forgery.1 Prior

to trial, Dishman filed an application for writ of habeas corpus, alleging that venue was improper

in Hays County. The district court denied the application. In her sole issue on appeal, Dishman

asserts that the district court abused its discretion in denying the application. We will affirm the

district court’s order.


                                          BACKGROUND

                 In a two-count indictment, the State alleged that Dishman (1) unlawfully appropriated

money from the victim in an amount greater than or equal to $100,000 but less than $200,000 and,

(2) with intent to defraud the victim, forged a writing that “purported to be and was an authorization

to debit an account at a financial institution, to wit: a notarized Durable Power of Attorney.” Both


        1
            See Tex. Penal Code §§ 31.03, 32.21.
offenses were alleged to have occurred in Hays County. In her pretrial application for writ of habeas

corpus, Dishman contended that venue was improper in Hays County because the bank accounts

from which the money was allegedly withdrawn were located in San Antonio (Bexar County) and

Houston (Harris County). Following a hearing,2 the district court signed an order denying the

habeas application. The order does not elaborate on the specific grounds on which the district court

relied, and no findings of fact or conclusions of law were requested or made. This interlocutory

appeal followed.


                                     STANDARD OF REVIEW

                 We review a trial court’s ruling on a habeas claim for abuse of discretion and, thus,

will not disturb that ruling unless the trial court acted arbitrarily or unreasonably or without reference

to any guiding rules or principles.3 “Habeas corpus is an extraordinary remedy and is available only

when there is no other adequate remedy at law.”4 Moreover, the mechanism through which we

review the denial of pretrial habeas—an interlocutory appeal—is itself an extraordinary remedy.5

Thus, courts must ensure that the writ is not misused to secure pretrial appellate review of




        2
            No reporter’s record of the hearing has been provided on appeal.
        3
         See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d
827, 830 (Tex. App.—Austin 2012, pet. ref’d); Ex parte King, 134 S.W.3d 500, 502-03
(Tex. App.—Austin 2004, pet. ref’d) (citing Ex parte Alt, 958 S.W.2d 948, 950 (Tex. App.—Austin
1998, no pet.)).
        4
       Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007) (citing Ex parte Townsend,
137 S.W.3d 79, 81 (Tex. Crim. App. 2004)).
        5
            See Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010).

                                                    2
matters that should instead be reviewed after trial.6 “Consequently, whether a claim is even

cognizable on pretrial habeas is a threshold issue that should be addressed before the merits of the

claim may be resolved.”7

                  “In determining whether an issue is cognizable on habeas, [courts] have considered

. . . whether the alleged defect would bring into question the trial court’s power to proceed” and

whether certain constitutional protections, such as the right to be free from double jeopardy, “would

be effectively undermined if these issues were not cognizable.”8 “Aside from double-jeopardy

issues, pretrial habeas is not appropriate when the question presented, even if resolved in the

defendant’s favor, would not result in immediate release.”9 “Pretrial habeas should be reserved for

situations in which the protection of the applicant’s substantive rights or the conservation of judicial

resources would be better served by interlocutory review.”10


                                              ANALYSIS

                  In her brief on appeal, Dishman argues that the district court abused its discretion in

denying her pretrial application for writ of habeas corpus because: (1) “habeas relief is available to

challenge jurisdiction”; (2) “Hays County cannot maintain venue over the case”; (3) “the indictment

defectively claims the crime took place in Hays County”; (4) “at least one appellate court has



        6
             See Doster, 303 S.W.3d at 724.
        7
             Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).
       8
             Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001).
       9
             Doster, 303 S.W.3d at 724.
        10
             Weise, 55 S.W.3d at 620.

                                                    3
acquitted a defendant on directed verdict as a result of improper venue”11; and (5) “the use of a

pretrial writ of habeas corpus promotes judicial economy.”

                   We initially observe that Dishman has conflated the concepts of venue and

jurisdiction. Venue is distinct from jurisdiction.12 “The terms are not synonymous.”13 Jurisdiction

concerns the power of the court to hear and determine the case.14 Venue concerns the geographic

location where a case may be tried.15 “It is well-established that habeas corpus will lie only to review

jurisdictional defects or denials of fundamental or constitutional rights.”16 For purposes of state

prosecutions, proper venue is not considered a fundamental or constitutional right.17




          11
          See Jones v. State, 945 S.W.2d 852, 854 (Tex. App.—Waco 1997), aff’d, 979 S.W.2d 652
(Tex. Crim. App. 1998). We note that the Texas Court of Criminal Appeals has recently held that
the State’s failure to prove venue at trial does not result in an acquittal on appeal but instead results
in a harm analysis pursuant to Tex. R. App. P. 44.2(b). See Schmutz v. State, No. PD-0530-13,
2014 Tex. Crim. App. LEXIS 121, at *9-17 (Tex. Crim. App. Jan. 29, 2014). Thus, Jones is no
longer good law. But even if it were, the issue in Jones was whether venue had been proven at
trial. The opinion does not address whether venue may be challenged in a pretrial habeas-corpus
proceeding.
          12
         Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980); State v. Blankenship,
170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d).
          13
         Blankenship, 170 S.W.3d at 681 (citing Martin v. State, 385 S.W.2d 260, 261 (Tex. Crim.
App. 1964)).
          14
               Watson, 601 S.W.2d at 351.
          15
               See Soliz v. State, 97 S.W.3d 137, 141 (Tex. Crim. App. 2003); Blankenship, 170 S.W.3d
at 681.
          16
          Watson, 601 S.W.2d at 352; see also Ex parte Luciw, No. 03-08-00445-CR, 2009 Tex.
App. LEXIS 9864, at *23 (Tex. App.—Austin Dec. 31, 2009, no pet.) (mem. op., not designated
for publication).
          17
               See Schmutz, 2014 Tex. Crim. App. LEXIS 121, at *13-16.

                                                    4
                   It is also well established that the criminal jurisdiction of district courts in Texas is

not limited to the county in which the offense is committed.18 “Regarding the criminal jurisdiction

of district courts, i.e. the power of those courts to hear criminal cases, Art. 5, § 8 of the Texas

Constitution provides only those courts ‘shall have original jurisdiction in criminal cases of the grade

of felony,’ and ‘of all misdemeanors involving official misconduct.’”19 “The Texas Constitution

provides no other limitation on the jurisdiction of district courts in regard to criminal matters.”20 In

other words, even if the offenses were not committed in Hays County, as Dishman asserts, the Hays

County District Courts would nevertheless have jurisdiction to hear the cases.21 As the Texas Court

of Criminal Appeals has explained:


        [S]trictly as a matter of jurisdiction, a district court may try any case in which the
        offense takes place within the State. Of course in a given case venue may not be
        proper under the provisions of Chapter 13 of the Code of Criminal Procedure. The
        failure to comply with those provisions, however, does not deprive the district court
        of jurisdiction.22


Thus, to the extent that Dishman is asserting that the district court does not have jurisdiction over

the alleged offenses, such a claim is without merit, and the district court would not have abused its

discretion in denying her habeas application on that ground.




       18
             See Boyle v. State, 820 S.W.2d 122, 139 (Tex. Crim. App. 1989).
        19
             Watson, 601 S.W.2d at 351.
        20
             Id.
        21
             See Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981).
        22
             Watson, 601 S.W.2d at 352.

                                                      5
                Similarly, the district court would not have abused its discretion in denying the

habeas application on the ground that improper venue is not, contrary to Dishman’s assertions, the

sort of fundamental defect that is cognizable on habeas. Dishman asserts that “Hays County cannot

maintain venue over the case” and that “the indictment defectively claims the crime took place in

Hays County.” A claim that an indictment is “fundamentally defective” may be cognizable in a

writ of habeas corpus, but only if the habeas application “alleges that the indictment is so deficient

that it fails to vest the trial court with jurisdiction.”23 Again, that is not the case here. Dishman’s

complaint is that the offense did not occur in the county named in the indictment; she does not

contend that the indictment failed to allege an offense. Moreover, “pretrial habeas is unavailable

when the resolution of a claim may be aided by the development of a record at trial.”24 Such is

the case with venue, which the State has the burden to prove—at trial—by a preponderance of

the evidence.25 And the same observations refute Dishman’s argument that “the use of a pretrial



        23
           Ex parte Reedy, 282 S.W.3d 492, 502 (Tex. Crim. App. 2009); see Ex parte Gibson,
800 S.W.2d 548, 551 (Tex. Crim. App. 1990) (“[I]f the instrument comes from the grand jury,
purports to charge an offense and is facially an indictment, then it is an indictment . . . and its
presentation by a State’s attorney invests the trial court with jurisdiction to hear the case.”); see also
Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007) (“The proper test to determine if a
charging instrument alleges ‘an offense’ is whether the allegations in it are clear enough that one
can identify the offense alleged. If they are, then the indictment is sufficient to confer subject matter
jurisdiction. Stated another way: Can the trial court . . . and the defendant identify what penal code
provision is alleged and is that penal code provision one that vests jurisdiction in the trial court?”).
        24
         Doster, 303 S.W.3d at 724; see also Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim.
App. 2006).
        25
           See Tex. Code Crim. Proc. art. 13.17 (“In all cases mentioned in this Chapter, the
indictment or information, or any pleading in the case, may allege that the offense was committed
in the county where the prosecution is carried on. 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,

                                                    6
writ of habeas corpus promotes judicial economy.” Allowing a defendant to challenge a fact-specific

issue such as venue in a pretrial application for writ of habeas corpus, when the State would be

required to prove those same venue facts again during trial, would not promote judicial economy or

conserve judicial resources.

               On this record, we cannot conclude that the district court abused its discretion in

denying Dishman’s pretrial application for writ of habeas corpus. We overrule Dishman’s sole

issue on appeal.


                                         CONCLUSION

               We affirm the district court’s order.



                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: August 27, 2014

Do Not Publish




the county where such prosecution is carried on has venue.”); Dewalt v. State, 307 S.W.3d 437, 457
(Tex. App.—Austin 2010, pet. ref’d).

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