                          NUMBER 13-18-00133-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


CRISTOBAL GARCIA,                                                           Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                          MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      Appellant Cristobal Garcia appeals his conviction for aggravated sexual assault, a

first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017

1st C.S.). By one issue, appellant argues the evidence was insufficient to establish venue

in San Patricio County. We affirm.
                                          I.    BACKGROUND

        Appellant was indicted for intentionally and knowingly causing the penetration of

the sexual organ of A.G.1, a child younger than fourteen years of age, by appellant’s

finger. See id. The indictment alleged the offense occurred in San Patricio County,

Texas.

        At trial, the evidence showed that appellant sexually assaulted his daughter, A.G.,

when she was five years old. About fifteen years later, appellant was in a relationship

with a woman who had a five-year-old daughter, K.R.2                       K.R. confided in A.G. that

appellant had sexually assaulted her, and A.G. realized appellant assaulted K.R. in the

same way he had assaulted her. The police were contacted and both A.G. and K.R.

made outcry statements. This appeal concerns only the sexual assault of A.G.3 A.G.

was twenty-two at the time of trial.

        The jury found appellant guilty. Before the punishment phase began, the State

and appellant announced to the trial court that they had reached a plea agreement for

punishment to be twenty-five years’ imprisonment in the Texas Department of Criminal

Justice, Institutional Division, contingent on appellant waiving his right to appeal and to a

new trial. The trial court accepted the plea agreement and later certified appellant’s right

to appeal only the issue of venue. This appeal followed.


         1 We use initials to protect the complainant’s identity. See TEX. R. APP. P. 9.8 cmt. (“The rule does

not limit an appellate court’s authority to disguise parties’ identities in appropriate circumstances in other
cases.”).

        2 We also use initials to protect the minor’s identity. See id.; Salazar v. State, 562 S.W.3d 61, 63
n.1 (Tex. App.—Corpus Christi 2018, no pet.).

        3 The State tried appellant’s sexual assault offenses against K.R. and A.G. together, but the

offenses were charged separately. The jury found appellant guilty of the two separate offenses of
aggravated sexual assault of K.R.

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                                      II.   VENUE

      By his sole issue, appellant argues that the State failed to prove venue for

prosecution in San Patricio County and thus failed to provide the evidence needed to

sustain the conviction under the State’s indictment.

A.    Applicable Law and Standard of Review

      Under Texas law, venue is not an element of the offense. See Schmutz v. State,

440 S.W.3d 29, 34 (Tex. Crim. App. 2014); Fairfield v. State, 610 S.W.2d 771, 779 (Tex.

Crim. App. [Panel Op.] 1981). To establish venue, the State’s burden is to prove, by a

preponderance of the evidence, that the county of prosecution is where the offense was

committed. TEX. CODE CRIM. PROC. ANN. art. 13.17 (West, Westlaw through 2017 1st

C.S.); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003) (en banc). Venue

may be proved by circumstantial as well as direct evidence. Rippee v. State, 384 S.W.2d

717, 718 (Tex. Crim. App. 1964).

      The evidence regarding venue is sufficient if from the evidence, the jury may

reasonably conclude that the offense was committed in the county alleged. Id.; Knabe v.

State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet. ref’d). The trier of fact

may make reasonable inferences from the evidence to decide the issue of venue. Dewalt

v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref’d); Thompson v. State,

244 S.W.3d 357, 362 (Tex. App.—Tyler 2006, pet. dism’d). We view all the evidence in

the light most favorable to an affirmative venue finding and determine whether any

rational trier of fact could have found by a preponderance of the evidence that venue was

proper. Dewalt, 307 S.W.3d at 457; Gabriel v. State, 290 S.W.3d 426, 435 (Tex. App.—




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Houston [14th Dist.] 2009, no pet.); Vanschoyck v. State, 189 S.W.3d 333, 336 (Tex.

App.—Texarkana 2006, pet. ref’d).

B.    Analysis

      Appellant was indicted with aggravated sexual assault, and it was alleged the

offense occurred in San Patricio County. Appellant maintains that venue is improper

because A.G. was unsure of where the alleged offense took place. We disagree. As we

note below, the State presented testimony from which the jury could have inferred that

venue was proper in San Patricio County.

      The State elicited the following testimony from A.G.:

      [State]:     So this incident that happened to you either happened at your
                   mom’s apartment in Mathis or your grandma’s place in
                   Mathis?

      [A.G.]:      No. When the incident happened, it was at his house.

      [State]:     His house? Where did he stay?

      [A.G.]:      Out in the country somewhere.

      [State]:     You don’t know where?

      [A.G.]:      No.

                   ....

      [State]:     You don’t really remember where this happened, do you?

      [A.G.]:      At his house.

                   ....

      [State]:     And you have a bad memory that it happened back then?

      [A.G.]:      Can you repeat that?

      [State]:     That it happened out in the country somewhere?

      [A.G.]:      Yes.


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      [State]:       Was it far from Mathis?

      [A.G.]:        I don’t know.

      [State]:       You don’t know where in the country?

      [A.G.]:        No.

      [State]:       It could have been in Mathis?

      [A.G.]:        Yes.

      [State]:       Have you ever known your father to live anyplace else but
                     Mathis?

      [A.G.]:        No.

                     ....

      [State]:       And, again, as far as you know, your dad never lived
                     anywhere but Mathis, right? That’s what you just told the jury,
                     right?

      [A.G.]:        Yes.

      [State]:       And Mathis is in San Patricio County, Texas, right?

      [A.G.]:        Yes.

      Appellant’s sister also testified at trial. During cross-examination, the following

exchange occurred:

      [State]:       And are you roughly the same age as him or is he a little older
                     than you?

      [Sister]:      Excuse me?

      [State]:       Are you roughly the same age as him?

      [Sister]:      As him? Yes, I am. He’s two years older than I am.

      [State]:       Okay. And you’ve been close with him all your life; is that
                     true?

      [Sister]:      Yes, sir.



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       [State]:      And you guys have both lived in Mathis all your life pretty
                     much?

       [Sister]:     Pretty much, yes, sir.

       [State]:      Both you and him have stayed in Mathis, San Patricio County,
                     right?

       [Sister]:     Yes, sir.

       [State]:      In the State of Texas?

       [Sister]:     Yes, sir.

       Thus, according to testimony from A.G. and appellant’s sister, appellant had only

ever lived in San Patricio County, and A.G. testified that the assault occurred at

appellant’s home. Therefore, viewing the evidence in the light most favorable to an

affirmative venue finding, we conclude that a rational trier of fact could have found by a

preponderance of the evidence that venue was proper in San Patricio County. See

Rippee, 384 S.W.2d at 718; Vanschoyck, 189 S.W.3d at 335–36

       We overrule appellant’s sole issue.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                              DORI CONTRERAS
                                                              Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of March, 2019.




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