                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00282-CR
                              NO. 09-18-00283-CR
                              NO. 09-18-00284-CR
                              __________________

                 DANIEL ADAM BILLINGSLEY, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
             Trial Cause Nos. 17-28249, 17-28250, 17-28251
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Daniel Adam Billingsley of three charges of

aggravated sexual assault of a child. The trial judge assessed punishment at fifty

years of confinement in each case. In three appellate issues, Billingsley challenges

the sufficiency of the evidence to prove that the offenses occurred in Jefferson

County, Texas, and he asserts that the trial court erred by admitting text messages
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into evidence and declining to admit GPS data from Billingsley’s cell phone into

evidence. We affirm the trial court’s judgments.

                                      ISSUE ONE

      In his first issue, Billingsley asserts that the evidence was insufficient to prove

that the offenses occurred in Jefferson County, Texas. The indictments allege that

Billingsley penetrated the victim’s sexual organ with his finger on two occasions

and penetrated her sexual organ with his sexual organ on one occasion. According

to the indictments, all three offenses occurred in Jefferson County, Texas.

      “[V]enue is procedurally and substantively different from elements of the

offense.” Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). Lack of

venue does not constitute a finding of insufficient evidence of a required element of

the offense, and it does not mean that the trial court lacked jurisdiction. Id. “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[].’” Id. at 35 (quoting

State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998)). Therefore, failure to

prove venue at trial does not implicate sufficiency of the evidence, nor does it require

acquittal. Id. Moreover, failure to prove venue as alleged in the indictment does not

constitute structural or constitutional error. Id. at 37.



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      The victim testified that she sometimes slept in the same bed with Billingsley

at Billingsley’s “grandmother’s house in Beaumont or his dad’s house in Louisiana.”

The victim testified that she uses the word “business” to refer to her genitals or

vagina, as well as to a man’s penis. According to the victim, Billingsley began

putting his fingers into her vagina in Beaumont, and she testified that this occurred

“one or two times.” The victim explained that the abuse happened in Louisiana on

weekends and during the week in Beaumont. The victim testified that it hurt when

Billingsley put his fingers inside her. The victim also testified that Billingsley “put

his business in mine[,]” and she recalled that this happened “once in Beaumont.”

During cross-examination, the victim testified, “I know for a fact that . . . all three

things that I have told y[ou] that he’s done w[ere done] at least one or two times

inside Beaumont.” The victim’s mother testified that Billingsley’s grandmother’s

house is located in Beaumont, Texas.

      On this record, we conclude that the trial court did not err in determining that

venue was proper in Jefferson County, Texas. See Tex. Code Crim. Proc. Ann. art.

13.15 (West 2015) (providing that “Sexual assault may be prosecuted in the county

in which it is committed[.]”); Schmutz, 440 S.W.3d at 34. For the reasons explained

in Schmutz, we reject Billingsley’s contention that venue is an element of the offense

that the State was required to prove. See Schmutz, 440 S.W.3d at 34-35. In addition,

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even if venue had not been properly proved at trial, any such error would have been

harmless. See Schmutz, 440 S.W.3d at 35, 37, 39; see also Tex. R. App. P. 44.2(b).

We overrule issue one.

                            ISSUES TWO AND THREE

      In issue two, Billingsley argues that the trial court erred by admitting text

messages into evidence, and in issue three, Billingsley argues that the trial court

erred by refusing to admit GPS data from Billingsley’s cell phone into evidence. We

address issues two and three together.

      During the testimony of the victim’s mother (“mother”), the trial court

admitted into evidence screenshots from mother’s cell phone of text messages

between mother and Billingsley over defense counsel’s objection. Defense counsel

objected that “text messages are susceptible of being doctored. You can delete text

messages and do screenshots[.]” Defense counsel also objected “on the basis of

hearsay[.]” Defense counsel further asserted that if a cell phone expert had been

brought to testify that the messages were authentic and no text messages had been

deleted, “then we wouldn’t have a problem. But no expert has been tendered by the

State that concerns the text messages and . . . they’re not accompanied by any kind

of business records affidavit[.]”



                                         4
      Billingsley testified that his cell phone has a GPS locator, and he was able to

use the phone’s GPS locator to see his locations on various dates and take

screenshots of those locations. Billingsley testified that the photographs accurately

represent where his phone was and photos that he had taken. When defense counsel

moved to admit the screenshots into evidence, the State took Billingsley on voir dire.

During the voir dire examination, Billingsley stated that he obtained the GPS

information from the Google maps application on his phone. Billingsley agreed with

the prosecutor that the screenshots contain information from Google rather than his

personal knowledge, and he stated that he does not know how Google records the

information. Billingsley opined that the application is “pretty accurate” because it

correctly reflected what he was doing at the recorded times. Billingsley agreed that

it is possible to turn off the GPS on his phone. After completing its voir dire

examination of Billingsley, the State objected “that these records are hearsay and

cannot be authenticated by the defendant[,]” and the trial court sustained the

objection.

      We review a trial court’s rulings admitting or excluding evidence under an

abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.

App. 2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Absent a clear abuse of discretion, we will not disturb the trial court’s decision to

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admit or exclude testimony. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.

2000). A trial court abuses its discretion when its decision was so clearly wrong as

to lie outside the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542.

Error may not be predicated upon a ruling that admits or excludes evidence unless a

substantial right of the party is affected. Tex. R. Evid. 103(a); Tex. R. App. 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.” King v. State, 953 S.W.2d at

266, 271 (Tex. Crim. App. 1997). Reversal is not appropriate if, after examining the

record as a whole, we have fair assurance that the error either did not influence the

jury or influenced the jury only slightly. Schutz v. State, 63 S.W.3d 442, 444 (Tex.

Crim. App. 2001).

      Viewing the record as a whole, we cannot say that the trial court erred by

refusing to admit the GPS evidence from Billingsley’s cell phone or by admitting

the text messages that were purportedly between the victim’s mother and Billingsley.

See Weatherred, 15 S.W.3d at 542. In addition, after examining the entire record,

we have fair assurance that the admission of the text messages and the exclusion of

the GPS evidence from Billingsley’s cell phone did not influence the jury or

influenced the jury only slightly. See Schutz, 63 S.W.3d at 444; see also Tex. R.



                                           6
Evid. 103(a); Tex. R. App. P. 44.2(b). We overrule issues two and three. Having

overruled each of Billingsley’s issues, we affirm the trial court’s judgments.

      AFFIRMED.



                                                    _________________________
                                                       STEVE McKEITHEN
                                                           Chief Justice

Submitted on April 16, 2019
Opinion Delivered May 15, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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