
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00445-CR


Ex parte Andrij Myrosl Luciw




FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 07-003-K368A, HONORABLE BURT CARNES, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		The State charged appellant Andrij Luciw with possession of less than one gram of
cocaine.  See Tex. Health & Safety Code Ann. § 481.115 (West Supp. 2009).  Luciw pleaded guilty
to the offense.  Luciw subsequently filed an application for a post-conviction writ of habeas corpus,
see Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005), which the trial court denied.  On appeal,
Luciw argues that the trial court abused its discretion in denying relief on the habeas application
because (1) the court decided the matter on written affidavits rather than holding a hearing, (2) Luciw
did not receive effective assistance of counsel during plea proceedings, and (3) venue was improper
in Williamson County.  We affirm the judgment of the trial court.

BACKGROUND
		On December 30, 2006, appellant Andrij Luciw was driving southbound on
Interstate Highway 35 ("IH-35") in a Ford Explorer.  His brother, Dmytro, rode next to him in the
passenger's seat.  Round Rock Police Officer Joseph Claypool, who was also traveling southbound
on IH-35, encountered Luciw's vehicle at a location north of the intersection of IH-35 and
Louis Henna Boulevard in Round Rock, an area located in Williamson County.  Observing that
the vehicle had Pennsylvania license plates, Claypool relayed the plate number to the
communications department of the Round Rock Police Department.  A few minutes later, the
communications department informed Claypool that the plates were registered to a vehicle that had
been reported stolen in Pennsylvania.
		In accordance with department protocol for felony traffic stops, Claypool waited for
two other patrol cars to arrive before stopping the vehicle.  The stop was made near exit 246 off of
IH-35, placing the location of the stop in Travis County.  Weapons drawn, the officers ordered Luciw
and his brother, Dmytro, out of the car.  According to an affidavit filed by Claypool during habeas
proceedings, he detected the odor of burnt marijuana coming from the vehicle.  He observed a
green leafy substance on the console between the driver's seat and passenger's seat.  Claypool and
Sergeant Mike Osborn searched the vehicle and found three plastic baggies containing marijuana. 
They also discovered a black duffel bag behind the driver's seat, which contained four plastic
baggies in a medicine bottle.  Each of the baggies contained a white powder substance.  Osborn field
tested the substance, finding that the substance in all four baggies was cocaine, weighing an
aggregate of 2.8 grams including packaging.
		Luciw informed Claypool that he was the rightful owner of the vehicle, that he
had reported it stolen, and that the vehicle had subsequently been found.  The Round Rock police
contacted the Pennsylvania law enforcement agency that had listed the vehicle as stolen.  The
agency confirmed that the vehicle had been recovered, but that due to administrative error the
listing had not been removed from the stolen vehicles database.  According to Claypool's affidavit,
both conversations took place after Claypool detected the odor of burnt marijuana coming from
the vehicle.
		Claypool arrested Luciw for possession of cocaine.  Claypool transported Luciw
to the Round Rock Police Department for booking, and Luciw was eventually booked into the
Williamson County Jail.  Claypool filed a complaint in Williamson County for the third-degree
felony of possession of a controlled substance.
		Luciw retained attorney Michael White to handle his defense.  On January 19, 2007,
White received a letter from the Williamson County District Attorney's office offering a sentence
of four years' deferred adjudication, a $2,500 fine, and 20 days in jail as a condition of supervision
in exchange for a plea of guilty to the state jail felony of possession of less than one gram of cocaine. 
See Tex. Health & Safety Code Ann. § 481.115.  The letter stated that Luciw had until January 31,
2007 to accept the offer.  On January 31, 2007, Luciw accepted the plea agreement and pleaded
guilty.  Luciw was sentenced in accordance with the agreement on February 20, 2007.
		Approximately one year later, on February 15, 2008, Luciw filed an application for
a writ of habeas corpus alleging as grounds, inter alia, improper venue in Williamson County,
illegal search and seizure, and ineffective assistance of counsel.  In support of his application, Luciw
submitted his own affidavit and the affidavit of Dave Howard, an attorney who had represented
Luciw's brother on charges stemming from the traffic stop. (1)  The State submitted the affidavits of
Claypool and White.
		White's affidavit directly conflicts with the affidavits of Luciw and Howard in
numerous important respects.  White stated that, "[p]rior to Mr. Luciw's guilty plea, I went over the
felony information and the plea paperwork with him," detailing three potential courses of action. 
White maintained that he and Luciw had "lengthy discussions" about the venue issue in particular,
and that Luciw signed the plea agreement "in [his] presence."  White also indicated that he "had
discussions with Dave Howard, who represented Mr. Luciw's brother," about the case prior to
Luciw's plea.
		Luciw, on the other hand, stated in his affidavit that he did not meet or speak with
White "until the day of sentencing," and that White sent a different lawyer, David Fernandez,
to handle the plea itself.  This assertion is supported by the reporter's record of the plea proceeding,
which lists appearances by the prosecution and Fernandez only. (2)  According to Luciw, he never knew
he "had any choices, much less the 'pros and cons' of the 'venue' issue, or even that I had a right to
raise these issues in a pre-trial format" until after he was sentenced. (3)  Further, Luciw explained that
he "did not sign any documents in [White's] presence, because in point of fact [White] was not
present" on the day of the plea.  In addition, Howard stated he left a message for White regarding
the venue issue but did not speak to him about the case until after sentencing, at which point White
"did not show much interest in the topic" during a "very short" conversation.
		The trial court, which had also accepted Luciw's plea and sentenced Luciw, disposed
of the habeas application on the submitted affidavits without holding a hearing.  The trial court's
findings of fact deemed the affidavits of Claypool and White "credible."  Consistent with White's
version of events, the trial court further found that Luciw and White had extensive conversations
regarding the case before Luciw pleaded guilty, and concluded that Luciw's plea had been knowing
and voluntary.  Based on its findings, the trial court denied Luciw's habeas application, and this
appeal followed.

STANDARD OF REVIEW
		In reviewing the trial court's decision to grant or deny habeas corpus relief, we view
the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuse
of discretion.  Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).  The appellate court
affords almost total deference to a trial court's factual findings in habeas proceedings, especially
when those findings are based upon credibility and demeanor.  Ex parte Amezquita, 223 S.W.3d
363, 367 (Tex. Crim. App. 2006).  The trial court's determinations of historical fact are entitled to
some deference even when the court's findings do not rest on credibility determinations, but are
based instead on physical or documentary evidence or inferences from other facts.  Manzi v. State,
88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002).  We afford almost total deference to the trial court's
application of the law to the facts if the resolution of the ultimate question turns on an evaluation
of credibility and demeanor.  Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)
(per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.
2007).  If the resolution of the ultimate questions turns on an application of legal standards, we
review the determination de novo.  Id.

DISCUSSION
Failure to Hold a Hearing
		In his first point of error, Luciw argues that the trial court abused its discretion by
failing to hold a contested hearing on his application for a writ of habeas corpus, instead deciding
the matter on the basis of submitted affidavits.  In order for a complaint to be preserved on appeal,
"the record must show that . . . the complaint was made to the trial court by a timely request,
objection, or motion."  Tex. R. App. P. 33.1(a).  In this case, the record contains no request that
the trial court hold a hearing on Luciw's habeas application.  While Luciw's appellate counsel
stated at oral argument that a request for a hearing on Luciw's habeas application had been made to
the trial court off the record, such a request is not sufficient to preserve the matter on appeal.  See
id. (requiring requests to be on record); see also McQueen v. State, 984 S.W.2d 712, 715
(Tex. App.--Texarkana 1998, no pet.) (explaining that, when objections and rulings are made "off
the record, nothing is preserved for review").  We conclude that Luciw's first point of error was not
properly preserved for review.
		Even if the issue had been properly preserved, we note that the trial court is granted
wide latitude to choose appropriate procedures for deciding a habeas application:  "In making its
determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely
on the court's personal recollection."  Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b) (West 2005). 
Texas courts have held that while this language "clearly indicates that in making its
determination the trial court may order . . . a hearing, it does not require that the trial court do so." 
Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.--Fort Worth 2005, no pet.) (emphasis in
original).  Other courts have put the matter more bluntly, stating that the code of criminal procedure
"clearly indicates that the decision by the trial court to conduct a hearing on a defendant's application
is entirely discretionary."  Ex parte Faulkner, No. 09-05-478-CR, 2006 Tex. App. LEXIS 9486,
at *8 (Tex. App.--Beaumont Nov. 1, 2006, pet. ref'd) (mem. op., not designated for publication)
(emphasis added). (4)  Accordingly, Luciw's first point of error is overruled.

Ineffective Assistance of Counsel
		In his second point of error, Luciw argues that White's actions denied him
effective assistance of counsel as guaranteed by the Sixth Amendment.  See U.S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668 (1984).  In order to prevail on a claim of ineffective
assistance of counsel, the defendant must satisfy the two-prong test set forth in Strickland, which
requires a showing that (1) counsel's performance was deficient; and (2) counsel's deficient
performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome.  See
466 U.S. at 687-88; see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009).  The
Supreme Court has held that the Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel.  Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); see also Imoudu,
284 S.W.3d at 869.  A guilty plea is not voluntary if made as a result of ineffective assistance
of counsel.  Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Ex parte Karlson,
282 S.W.3d 118, 129 (Tex. App.--Fort Worth 2009, pet. ref'd). 
		Under the first prong, the defendant must show that counsel's performance was
deficient.  However, there is "a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance."  Strickland, 466 U.S. at 689.  Under the second prong, a
defendant challenging a guilty plea satisfies the prejudice requirement of Strickland by showing a
reasonable probability that, absent counsel's deficient performance, he would not have pleaded guilty
and would have insisted on going to trial.  Hill, 474 U.S. at 59.  Generally, this prejudice inquiry will
closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to
convictions obtained through a trial.  Id.  "[W]here the alleged error of counsel is a failure to advise
the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice'
inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." 
Id.  Where the alleged error is failure to discover exculpatory evidence, the "prejudice" analysis "will
depend on the likelihood that discovery of the evidence would have led counsel to change his
recommendation as to the plea."  Id.
		Luciw argues that White provided ineffective assistance by failing to advise him
regarding the propriety of venue in Williamson County and the legality of the search of his vehicle,
failing to discover and view the video recording of the traffic stop, and failing to raise the issues
of improper venue, illegal search, and compliance with the notice requirement of article 14.03(d)
of the code of criminal procedure to the trial court.  See Tex. Code Crim. Proc. Ann. art. 14.03(d)
(West Supp. 2009).  We address each contention in turn.

Failure to Advise
		Luciw argues that White provided ineffective assistance by failing to advise him
of the venue and search issues prior to his decision to plead guilty, thus rendering Luciw's plea
involuntary.  In evaluating the deficiency of counsel's performance under the first prong of
Strickland, we note that the accounts of the advice Luciw received from White vary wildly.  White
states in his affidavit that he extensively discussed the case with Luciw, detailing the options
available with regard to the venue issue.  Luciw, on the other hand, states in his affidavit that he did
not speak with White until sentencing, that his only communication was with another attorney on
the day of the guilty plea, and that he was never apprised by either of the venue and search issues.
		These competing versions of events lead to markedly different conclusions regarding
the deficiency of White's performance.  In evaluating these affidavits, the trial court found White's
affidavit to be "credible" and largely adopted the facts as put forth in that affidavit.  We must defer
to the trial court's findings of historical fact even when such findings are based on affidavits rather
than witness testimony.  See Manzi, 88 S.W.3d at 244 (instructing appellate courts to apply "a
deferential standard of review of the trial court's resolution of the historical facts from conflicting
affidavits").  On the facts found by the trial court, White's performance was not deficient. 
		Even under Luciw's version of events, however, there is no showing that White's
performance prejudiced the defense.  In determining whether the defendant would have insisted
on going to trial but for the deficient advice of counsel, we "predict" the defendant's success at trial
on the issues counsel failed to discuss with the defendant.  See Hill, 474 U.S. at 59-60.  Luciw's
venue and search challenges would likely have failed at trial.  Regarding venue, where there is not
a special venue statute applicable to the charged offense, the proper venue for the prosecution is the
county in which the offense was committed.  Tex. Code Crim. Proc. Ann. art. 13.18 (West 2005);
see also Schemm v. State, 228 S.W.3d 844, 846 (Tex. App.--Austin 2007, pet. ref'd).  Under
article 13.18, when conduct constituting a single offense is committed in more than one county,
venue is proper in any of those counties.  Schemm, 228 S.W.3d at 846.  The uncontested facts in
Claypool's affidavit indicate that he observed Luciw driving in Williamson County, followed him
until the stop in Travis County, and found cocaine in Luciw's vehicle following the stop.  These facts
appear sufficient to show by a preponderance of the evidence that Luciw possessed the cocaine
in Williamson County, making venue proper there.  See Tex. Code Crim. Proc. Ann. art. 13.17
(West 2005) ("Venue need only be proved by a preponderance of the evidence.").  Under this
analysis, an objection on the basis of improper venue would not have succeeded at trial.
		Further, the facts in this case do not present a likelihood of success in challenging
the search.  Claypool's affidavit indicates that the police received information that Luciw's vehicle
had been reported stolen, providing probable cause to perform a traffic stop.  See Davis v. State,
829 S.W.2d 218, 220 (Tex. Crim. App. 1992) (citing Terry v. Ohio, 392 U.S. 1 (1968)) ("A stop is
justified if the officer, based upon specific and articulable facts, reasonably surmises that the
detained person may be associated with a crime.").  Further, Claypool states that he smelled the odor
of burnt marijuana after stopping the car, providing probable cause to search the vehicle.  See
Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978) (authorizing officer who smells
marijuana in vehicle after traffic stop to search vehicle for evidence).  In his brief, Luciw does not
challenge these facts or present alternate theories regarding the illegality of the search. (5)  Accordingly,
Luciw fails to show that an objection to the search would have succeeded at trial. 
		Luciw has not shown that he would have prevailed on the venue or search issues
at trial, and therefore fails to demonstrate that he would not have pleaded guilty and would have
"insisted on going to trial" had White advised him of these issues.  See Hill, 474 U.S. at 59.
Consequently, even assuming that White's performance was deficient, Luciw's argument does not
satisfy the second prong of the Strickland standard.

Video Recording
		Luciw also argues that White provided ineffective assistance by failing to discover
or review the videotape of the crime scene.  Under Strickland, "counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary."  Aldrich v. State, __ S.W.3d __, No. 02-05-303-CR, 2009 Tex. App. LEXIS 6777,
at *44 (Tex. App.--Fort Worth Aug. 25, 2009, no pet.) (citing Strickland, 466 U.S. at 690-91).  The
reasonableness of counsel's investigative decisions is viewed through the lens of "counsel's
perspective at the time."  Rompilla v. Beard, 545 U.S. 374, 381 (2005).  The Supreme Court has held
that "the duty to investigate does not force defense lawyers to scour the globe on the off chance
something will turn up; reasonably diligent counsel may draw a line when they have good reason to
think further investigation would be a waste."  Id. at 383.
		No "scouring of the globe" was required in this case.  The video recording of the
traffic stop and subsequent arrest was readily available to White and could have produced
exculpatory information or highlighted discrepancies in the State's case.  Though White stated in
his affidavit that he gleaned the facts of the case from reading the letter from the State's attorney
and the probable cause affidavit attached to it, counsel's duty to investigate generally extends beyond
such activities:  "Ordinarily counsel should not blindly rely on the veracity either of his client's
version of the facts or witness statements in the State's file."  McFarland v. State, 928 S.W.2d 482,
501 (Tex. Crim. App. 1996); see also Am. Bar Ass'n., ABA Standards for Criminal Justice:
Prosecution Function and Defense Function 4-4.1(a) (3d ed. 1993) ("Defense counsel should conduct
a prompt investigation of the circumstances of the case and explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event of conviction.") (emphasis added). 
Further, the recording included Luciw's statements to the arresting officer, and evaluating the
defendant's own statements constitutes a key element of preparing a defense.  See Johnson v. State,
172 S.W.3d 6, 19 (Tex. App.--Austin 2005, pet. ref'd) ("Seeking and obtaining inculpatory--or
exculpatory--statements in the defendant's own voice is an essential part of case investigation,
preparation for trial, and trial strategy."). 
		However, we need not reach a conclusion regarding whether White's failure to review
the videotape amounted to deficient performance under Strickland, (6)
 because no prejudice resulted
from the decision.  Under the second Strickland prong, Luciw must show that, had White properly
evaluated the evidence, he would have been likely to "change his recommendation as to the plea." 
Hill, 474 U.S. at 59.  Luciw argues that White would have been aware of the venue and search issues
had he viewed the video, and would then have been able to properly advise his client regarding
those issues.  As analyzed above, however, there is no reasonable probability that the venue and
search issues could have been successfully raised at trial.  Given the scant probability of success
on these issues, no sufficient likelihood exists that White would have advised his client not to plead
guilty or encouraged him to seek a better plea bargain.  Accordingly, Luciw's argument fails to
satisfy the second prong of the Strickland standard with regard to White's failure to discover and
view the video recording of the stop. 

Failure to Raise Issues to the Trial Court
		Luciw also argues that White provided ineffective assistance by failing to raise
the issues of improper venue, illegal search, and compliance with the notice requirement of
article 14.03(d) of the code of criminal procedure to the trial court.  See Tex. Code Crim. Proc. Ann.
art. 14.03(d).  Our analysis of the venue and search issues above indicates that White's performance
was not ineffective with regard to the venue and search issues.
		Further, we find no merit in Luciw's argument regarding the arresting officer's lack
of compliance with article 14.03(d) of the code of criminal procedure, which dictates that a
police officer making an arrest outside his jurisdiction "shall, as soon as practicable after making the
arrest, notify a law enforcement agency having jurisdiction where the arrest was made."  Id.  Luciw
argues that failure to comply with this provision warranted a transfer of venue to Travis County. 
However, Texas courts evaluating article 14.03(d) have held that the notice requirement of the article
is "administrative in nature" and does not confer substantive rights.  See Bachick v. State, 30 S.W.3d
549, 553 (Tex. App.--Fort Worth 2000, pet. ref'd) (declining to suppress evidence on basis of
lack of compliance with notice requirement of article 14.03(d)).  White could have reasonably
concluded that even a violation of this administrative provision would not mandate transfer of venue. 
Further, there is no reason to believe that Luciw would have insisted on going to trial had the case
been transferred to Travis County.  Accordingly, White did not provide ineffective assistance in
failing to raise the lack of compliance with article 14.03(d).
		As our analysis indicates that the trial court did not abuse its discretion in denying
relief based on ineffective assistance of counsel, Luciw's second point of error is overruled.

Improper Venue
		In his third point of error, Luciw argues that the trial court abused its discretion
by failing to grant his habeas application due to the impropriety of venue in Williamson County. 
Under Texas law, "[i]t is well-established that habeas corpus will lie only to review jurisdictional
defects or denials of fundamental or constitutional rights."  Ex parte Watson, 601 S.W.2d 350, 352
(Tex. Crim. App. 1980); see also Ex parte Pena, 71 S.W.3d 336, 337 n.4 (Tex. Crim. App. 2002). 
Venue is distinct from jurisdiction; while jurisdiction "concerns the power of the court to hear
and determine the case," venue refers to "the place where a case may be tried."  Watson, 601 S.W.2d
at 351.  Though jurisdictional issues may be raised in an application for a writ of habeas corpus,
a defendant "may not collaterally attack his conviction . . . on the basis that venue was improper." 
Id. at 352.  Accordingly, Luciw's third point of error is overruled. (7)

CONCLUSION
		Finding no reversible error, we affirm the judgment of the trial court.



__________________________________________						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Affirmed
Filed:   December 31, 2009
Do Not Publish
1.   Luciw's brother was charged with possession of marijuana following the stop.  According
to Howard, the charges against Luciw's brother were dismissed on the basis of improper venue in
Williamson County.
2.   The reporter's record does list an appearance by White at the sentencing proceeding.
3.   We note, however, that when the trial court asked Luciw at the sentencing proceeding
whether White had "fully advised [him] as to the law and the facts regarding [the] case," Luciw
answered, "Yes, sir."  When the trial court then asked Luciw if he felt that White had "adequately
represented" him, Luciw answered, "I do."
4.   We recognize that the trial courts have broad discretion in this area and are granted
deference when deciding matters of historical fact solely on the basis of affidavits (instead of
live testimony).  See Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002) (instructing
appellate courts to apply "a deferential standard of review of the trial court's resolution of the
historical facts from conflicting affidavits").  We note, however, that some have opined that the
rationale for that deference is less apparent when the evaluation is of paper instead of people.  See,
e.g., id. at 250 (Cochran, J., concurring) ("I do not know how anyone, judge or jury, can assess
credibility and decide which of two sworn, conflicting versions of one event is true, based solely
upon a written affidavit.").
5.   At oral argument, Luciw's appellate counsel argued that the search would have been illegal
under Arizona v. Gant.  556 U.S. __, 129 S. Ct. 1710 (2009).  In Gant, the Supreme Court limited
the exception of search incident to arrest to cases in which "the arrestee is within reaching distance
of the passenger compartment or it is reasonable to believe the vehicle contains evidence of
the offense of arrest."  Id. at 1723.  Without addressing whether the Gant holding applies to the facts
of Luciw's case, we note that Gant was not decided until April 2009, a significant period of
time after the events and proceedings of this case occurred.  Counsel cannot be expected to
predict changes in the law: "Clairvoyance is not a required attribute of effective representation." 
United States v. Fields, 565 F.3d 290, 295 (5th Cir. 2009) (internal citations and quotation marks
omitted); see also Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005) ("[L]egal advice
which only later proves to be incorrect does not normally fall below the objective standard of
reasonableness under Strickland."). Consequently, White's failure to consider Gant-based defenses
does not constitute deficient performance.
6.   At least one federal court has concluded that counsel's performance was deficient for
failing to review a video recording of a traffic stop prior to trial.  In Garza v. Quarterman, the
petitioner applied for habeas corpus relief from a Texas state conviction, citing counsel's failure
to view the video recording of the DWI traffic stop underlying the conviction.  C.A. No. C-06-345,
2007 U.S. Dist. LEXIS 18049, at *10 (S.D. Tex. Mar. 13, 2007).  In a memorandum and
recommendation to the district court, the United States magistrate judge concluded that "failing
to view the tape was objectively unreasonable" under the first prong of Strickland.  Id. at *18.  The
court explained that, because the "tape provided an unbiased account of the arrest and showed the
events before, during and after the traffic stop," defense counsel "clear[ly] . . . should have watched
the entire tape prior to the trial."  Id.
7.   Luciw makes one further argument with regard to venue, contending that the
requisite procedures were not followed for waiver of venue under article 13.20 of the code of
criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 13.20 (West 2005).  Article 13.20 applies
to venue by consent, and does not apply when, as here, venue was proper.  See id.  Further,
article 13.20 does not provide exclusive procedures for waiving venue.  See, e.g., Cooks v. State,
844 S.W.2d 697, 730 (Tex. Crim. App. 1992) (holding that right to change of venue may be waived
as matter of law by participating in hearings on merits). 
