TDCAA TDCAA Community Criminal What instructions or special issues are required in jury charges when Venue is contested?
We are trying a sexual assault case where the sexual assault did not happen in our county, but the accused was stopped in our county. The Defendant has basically admitted that he had sex with the teenage victim in other counties in Texas, and in other states, but claims that McLennan County does not have venue to prosecute because he did not have intercourse with her here. We are aware of the exceptions--Tex. Code Crim Proc. 13.15; 13.19; and 13.01--but we are not sure how to submit the issue in the charge. Has anyone ever had to draft a charge with a venue issue in it? Any suggestions-other than that we should have sent it to another county?
I think you just add a paragraph saying "You are instructed that..." and add the section of Chapter 13 that fits your situation.
Does the indictment allege the commission of the sexual assault in your county or another county? I have added venue allegations in an indictment before, although probably not necessary, because it makes the preparation of a charge much easier.
Could you elaborate on what you mean by "stopped in your county"?
Girl testifies of 'deliverance from evil' in sexual assault trial
Girl testifies of 'deliverance from evil' in sexual assault trial
Thursday, June 29, 2006
By Tommy Witherspoon
Tribune-Herald staff writer
As state trooper David Murphy pursued Donnie Earl Witt, his girlfriend and her 14-year-old daughter up Interstate 35 at speeds of up to 120 mph, the girl prayed God would �deliver us from evil.�
At the time, the girl testified Wednesday, she was referring to the officer. But two years later, the girl told jurors that she realizes now that Murphy was her savior who delivered her from the evil Witt and six months of sexual abuse across at least four states.
Witt, 48, a seven-time convicted felon from Shawnee, Okla., is on trial in Waco�s 54th State District Court on one count of aggravated sexual assault of a child and 11 counts of possession of child pornography.
Murphy testified Wednesday that after the 32-mile chase in March 2004 that started just north of Waco and ended 20 minutes later north of Hillsboro, he and other officers found nude photographs of the girl and ones that showed Witt nude and in various sexual positions. Officers also found a camera, film, sex toys and male sexual enhancement pills in the car, the trooper said.
The girl, who gave birth in September 2004 to twins fathered by Witt, is now 16. She lives in Oklahoma, was president of her high school sophomore class and recently returned from a church mission trip abroad.
After her three-hour testimony Wednesday, she waited around to thank the trooper for his role in extricating her from the abusive, nomadic life she and her mother were living with Witt. She also got to visit with her son and daughter, who have been adopted.
The girl said her mother met Witt while working as a secretary at an Oklahoma prison, where he was serving time for an escape conviction. She and her mother began writing to Witt, and he moved into their home when he was released from prison in September 2003, she testified.
Not long after that, she said, Witt moved out of her mother�s bed and into hers. At 13, she was glad to have a father figure in her home but was conflicted about the sexual attention.
�Your body is saying yes because it feels good, but your heart and your mind are saying no because it is dirty and he is supposed to be your father,� the soft-spoken teen told the jury of seven women and five men. �It�s not the kind of dirty you can wash off. It�s the kind of dirty that makes you want to pull your insides out.�
Her mother lost her job at the prison, but Witt told them he could support them because he and some partners owned motels in various states, the girl said. That turned out to be a lie, so Witt stole things and sold the items to help support them, she said.
After they were evicted from their Oklahoma City home, the trio hit the road, living in motels and in their car while traveling between Albuquerque, Corpus Christi, Phoenix and back through Oklahoma.
She said her mother would sleep in one motel room bed while she and Witt slept in another. Most nights, she said, she and Witt would have sex after her mother fell asleep. That scenario was repeated on nights they slept in the car, too, she said.
The girl testified that at one point, she told Witt that she no longer was willing to have sex with him. They got into an argument, and Witt packed a bag and threatened to leave, she said. The girl said she relented after fearing that her mother would blame her if Witt left, adding that she knows her mother is afraid of growing old alone.
The girl�s mother is serving a seven-year federal prison term after pleading guilty in Waco�s U.S. District Court to child pornography charges. She is expected to testify when Witt�s trial resumes this morning.
Witt was sentenced to 30 years in federal prison last year on the child pornography charges stemming from the photos found in his car.
Witt�s attorney, Russ Hunt Sr., has said the charges against his client should be dismissed because prosecutors, while alleging in an indictment that Witt had sex with the teen in McLennan County, have admitted that they can�t prove they had sex here.
Still, prosecutors Beth Toben and Mark Parker argue that provisions under the Code of Criminal Procedure allow for Witt�s local prosecution.
That ultimately will be a question for the jury to decide, Hunt said.
Man gets life in prison for impregnating, photographing teenage girl
Saturday, July 01, 2006
By Tommy Witherspoon
Tribune-Herald staff writer
A seven-time convicted felon who sexually abused his girlfriend�s 13-year-old daughter, got her pregnant and took lewd photographs of her was sentenced to life in prison Friday.
Jurors in Waco�s 54th State District Court deliberated about an hour and a half before deciding punishment for Donnie Earl Witt, a 48-year-old native of Shawnee, Okla., who told jurors Thursday that he has three people living inside his body.
The jury of five men and seven women deliberated about 90 minutes Friday morning before convicting the lifetime criminal of aggravated sexual assault of a child and 11 counts of possession of child pornography.
The jury recommended that Witt be sentenced to life for the sexual assault, 60 years in prison for each of eight counts of child pornography that showed the girl�s breasts and 80 years in prison for each of three photos that showed the girl�s genitals.
The pornography counts stem from nude photographs Witt took of the girl during their six-month odyssey as transient thieves traveling through four states that began in late 2003, just weeks after Witt was released from prison.
He pleaded guilty in Waco�s federal court last year to production of child pornography based on the same photos and was sentenced to 30 years in prison. While retired State District Judge Derwood Johnson ordered the 12 state sentences to run concurrently, he �stacked� those on his federal sentence, ordering the state sentences to run consecutively with his federal sentence.
That means that, if Witt is released from federal prison after serving 28 years, as officials predict, he then will begin serving his state sentences and won�t be eligible for parole for at least 30 years after that.
Assistant District Attorney Beth Toben, who prosecuted Witt with Mark Parker, said the girl was 14 when she discovered she was pregnant with twins. At that time, she was alone in the unfamiliar city of Waco after her mother and Witt were arrested after a high-speed chase in March 2004.
The girl, who is now 16, gave her babies up for adoption, was president of her sophomore class and is living with relatives in Oklahoma. She got to visit with her babies this week.
�Obviously, I feel really good about the sentences, but I also feel really good for everybody who worked on it. It was quite a team effort,� Toben said, referring to law enforcement, Child Protective Service employees, Advocacy Center workers and others.
�When we work with kids who are going through a tragic event like that, it affects our lives, too,� Toben said. �She survived it and is doing fine. She obviously has a way to go yet, but it was handled about as well as it could be, and when the justice system backs it up, it makes it all worthwhile.�
Although the federal pornography charge will play a part in keeping Witt out of the girl�s life, it did not �fully validate what he really did to her,� Toben said.
�This week, the really beneficial thing for her was that he had to take responsibility for how he really victimized her, and that was the sex,� she said.
The girl�s mother, Rebecca Linton, met Witt while she was a secretary at an Oklahoma prison where he was serving time. She is serving a seven-year federal prison term for aiding and abetting the production of child pornography.
She and the girl testified during the four-day trial that Witt came to live with them after his parole in September 2003 and that he quickly began a romantic relationship with the girl.
After they were evicted from their Oklahoma City apartment, the three hit the road. Testimony from all three revealed they got money for food, gas and motel rooms through Witt�s knack for stealing things and finding someone to buy the stolen goods.
Witt�s attorney, Russ Hunt Sr., asked jurors to find him not guilty because, despite Witt�s admissions that he had sex with the girl in four states and five major cities, prosecutors failed to prove he had sex with the girl in McLennan County.
Toben and Parker argued that the law allowed local prosecution on those charges, which Hunt said will be a major issue on appeal of the case.
�I feel sorry for Donnie because Donnie is just kind of a low-level criminal, and, unfortunately, he fell in love with a girl and didn�t have enough sense to say, �Hey, she is too young,� � Hunt said. �Now, you and I unfortunately are going to have to pay to keep him alive for the rest of his life in prison.�
Way to go you guys!!!!
(an aside: I can't believe how his lawyer minimized what he did, and made it sound like the justice system, not the defendant, was at fault for society having to pay for him to be locked up - fine, we'll just execute him, then. Sheesh - what does he expect???)
Good trial, Folks!
As a taxpayer, I for one have absolutely no reservations whatsoever about some or all of my tax dollars keeping this guy alive in the pen.
So, update us, what instruction as to venue was given to the jury?
We put together a charge that had instructions regarding proof of venue and the burden of proof. We then gave them instructions concerning the special venue provisions provided for in the Sexual Assault statute and a 13.19 instruction concerning an offense committed in the State and it cannot be readily determined in which county the offense occurred and a 13.01 instruction dealing with offenses that might have been committed outside the state. We then had an application page concerning proof of venue and a special issue verdict form so that the jury had to make a finding on venue prior to making any determination regarding guilt- innocense. We also remove all language concerning McLennan County, Texas from the application paragraphs concerning the offense. The charge was submitted to the jury without any objections from the defense, so we'll see what happens on appeal. His attorney Russ Hunt, Sr. is quite competant and can put a spin on anything with a straight face.
Everyone have a happy Fourth of July, I know I will.
And the form of the charge was not even challenged upon appeal. If you want to control venue without testifying yourself make sure your victim knows where you are? Witt
TENTH COURT OF APPEALS
Donnie Earl Witt,
The State of Texas,
From the 54th District Court
McLennan County, Texas
Trial Court Nos. 2004-637-C and 2006-294-C
In a consolidated trial, a jury convicted Donnie Earl Witt of eleven counts of possession of child pornography and a single charge of aggravated sexual assault of a child. Witt pleaded “true” to enhancement allegations, and the jury assessed his punishment at sixty years’ imprisonment for eight of the child pornography convictions, eighty years’ imprisonment for the remaining three child pornography convictions, and life imprisonment for the aggravated sexual assault conviction.
In appellate cause no. 10-06-00233-CR (trial court cause no. 2004-637-C), Witt contends in two issues that: (1) the evidence is legally and factually insufficient to sustain the child pornography convictions because the State did not specify which of the photographs admitted in evidence applied to which of the eleven counts in the indictment; and (2) the charge is erroneous because it failed to “link” any particular photograph to any particular count of the indictment. In appellate cause no. 10-06-00234-CR (trial court cause no. 2006-294-C), Witt contends in his sole issue that the State failed to prove venue. We will affirm the convictions in both cases.
DPS Trooper David Murphy pulled over the Cadillac that Witt was driving for a traffic violation on Interstate 35 just north of Waco. As Trooper Murphy got out of the patrol car, Witt drove away. Murphy pursued Witt for over thirty miles at speeds of as much as 120 miles per hour. Near the end of the pursuit, Murphy observed Witt change places with the front seat passenger. The Cadillac began losing oil (which sprayed on the patrol car) and it eventually pulled to the side of the interstate near Itasca.
The occupants of the Cadillac were ordered to exit the car one at a time. The mother of the complainant K.L. was the driver. Witt exited from the front passenger seat, and K.L. exited from the back seat. K.L. was fourteen years old at that time. During an inventory search, Murphy recovered about ninety Polaroid photographs depicting Witt, K.L., or both. Seventeen of the photographs depict K.L. in the nude. It was later determined that K.L. was pregnant with twins fathered by Witt.
Witt was convicted of evading arrest or detention in a motor vehicle, endangering a child, and fleeing the scene of an accident in Hill County. He was convicted in federal court for production of child pornography. K.L.’s mother was convicted in federal court of aiding and abetting in the possession of child pornography.
Legal and Factual Sufficiency
Witt contends in his first issue in appellate cause no. 10-06-00233-CR that the evidence is legally and factually insufficient to sustain the child pornography convictions because the State did not specify which of the photographs admitted in evidence applied to which of the eleven counts in the indictment.
In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex. Crim. App. 2003).
In a factual insufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
The first eight counts of the indictment allege that Witt possessed photographs of K.L. engaging in sexual conduct by the “actual or simulated lewd exhibition of any portion of the female breast below the top of the areola.” See Tex. Pen. Code Ann. § 43.25(a)(2) (Vernon Supp. 2006), § 43.26(a)(1) (Vernon 2003). There are at least eight photographs in the reporter’s record which meet this definition. The remaining three counts allege that Witt possessed photographs of K.L. engaging in sexual conduct by the “actual or simulated lewd exhibition of the genitals.” Id. There are at least four other photographs in the reporter’s record which meet this definition.
Each item of child pornography found in Witt’s possession constitutes a separate offense for which he may be prosecuted. See Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998); Roise v. State, 7 S.W.3d 225, 232 (Tex. App.—Austin 1999, pet. ref’d). Under the indictment, the photographs must depict the “actual or simulated lewd exhibition” of K.L.’s breast or genitals. Witt argues that, because the photographs were not individually labeled to correspond to the counts in the indictment, he could not “defend against each count regarding ‘lewdness.’” We disagree.
We can readily determine that there are at least eight different photographs in the record which support the verdicts on the first eight counts and at least four other photographs which support the verdicts on the remaining three counts. At trial, Witt argued generally that he did not consider any of the photographs to be lewd, but he did not challenge the “lewdness” of any particular photograph admitted in evidence. Nor does he do so on appeal.
Viewing all the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Witt possessed eleven items of child pornography as alleged, regardless of whether the photographs admitted in evidence were made to correspond in some fashion to the counts of the indictment.
Witt’s factual sufficiency complaint likewise focuses on the State’s failure to make the photographs admitted in evidence correspond to the counts of the indictment. We have already determined that the evidence is legally sufficient to support these contentions. The absence of any direct correlation between the photographs admitted in evidence and the counts of the indictment does not render the jury’s verdict “clearly wrong and manifestly unjust. See Watson, 204 S.W.3d. at 414-15.
Therefore, the evidence is legally and factually sufficient. We overrule Witt’s first issue.
Witt contends in his second issue in appellate cause no. 10-06-00233-CR that the guilt-innocence charge is erroneous because it failed to “link” any particular photograph to any particular count of the indictment. He again argues that this alleged “error” deprived him of the ability to challenge the “lewdness” of any particular photograph.
Witt did not raise this objection at trial. Therefore, he must establish that: (1) the charge is erroneous as alleged; and (2) this error caused him to suffer egregious harm. Ex parte Smith, 185 S.W.3d 455, 464 (Tex. Crim. App. 2006); Hanson v. State, 180 S.W.3d 726, 728 (Tex. App.—Waco 2005, no pet.).
We have already determined that the evidence is legally and factually sufficient to support the convictions despite the absence of any direct correlation between the photographs admitted in evidence and the counts of the indictment. If, for example, Witt were charged with the possession of more than one stolen automobile, the indictment and charge would presumably provide sufficient identifying information to differentiate between the automobiles (e.g., make and model and/or vehicle identification number), and the State’s evidence would presumably include this identifying information.
Here, such specificity is not required. Rather, we hold that when an indictment charges a defendant with multiple counts of possession of child pornography, the jury charge need not identify any particular photograph admitted in evidence and connect the photograph to any particular count of the indictment.
Therefore, we overrule Witt’s second issue.
Witt contends in his sole issue in appellate cause no. 10-06-00234-CR that the State failed to prove venue on the allegation that he sexually assaulted K.L. Witt challenged venue both in a pretrial motion and at trial. The State responded that venue was proper under articles 13.01, 13.15, and 13.19 of the Code of Criminal Procedure. The jury was charged on all three of these venue provisions.
The parties made a written “Stipulation of Evidence for Venue Hearing” which was offered and admitted during a pretrial hearing on Witt’s motion for change of venue (which the court denied). Among the pertinent stipulations regarding venue were the following:
· Witt “began having sexual intercourse” with K.L. in Oklahoma City, Oklahoma when she was thirteen;
· Witt, K.L., and her mother left Oklahoma City in the fall of 2003, when they were about to be evicted;
· they “spent time” in Corpus Christi, Nueces County, Texas; Austin, Travis County, Texas; San Antonio, Bexar County, Texas; Fort Worth, Tarrant County, Texas; Albuquerque, Bernalillo County, New Mexico; Phoenix, Maricopa County, Arizona; Cleveland County, Oklahoma; and Oklahoma County, Oklahoma until Witt’s arrest in March 2004;
· Witt and K.L. “continued to engage in sexual intercourse” when they stayed at these locations; and
· Witt and K.L. “did not, however, ever have sexual intercourse in McLennan County, Texas.”
The testimony at trial largely corresponded to these stipulated “venue facts.” However, K.L. also testified that Witt and she engaged in sexual intercourse at several rest areas in Texas. She does not know what counties those rest areas were located in.
Venue is not an element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981); State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d); Henley v. State, 98 S.W.3d 732, 734 (Tex. App.—Waco 2003, pet. ref’d). Thus, it need be proved by only a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003); Fairfield, 610 S.W.2d at 779; Blankenship, 170 S.W.3d at 681; Sudds v. State, 140 S.W.3d 813, 816 (Tex. App.—Houston [14th Dist.] 2004, no pet.). An appellate court must presume that venue was proved unless it was challenged in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1); Hernandez v. State, 198 S.W.3d 257, 268 (Tex. App.—San Antonio 2006, pet. ref’d); Blankenship, 170 S.W.3d at 681; Henley, 98 S.W.3d at 734.
In reviewing a challenge to proof of venue, we apply a modified version of the familiar Jackson v. Virginia standard for legal sufficiency. Thus, we view all the evidence in the light most favorable to an affirmative venue finding and ask whether any rational trier of fact could have found by a preponderance of the evidence that venue was proved. See Duvall v. State, 189 S.W.3d 828, 830 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Vanschoyck v. State, 189 S.W.3d 333, 336 (Tex. App.—Texarkana 2006, pet. ref’d); Lemoine v. State, 85 S.W.3d 385, 387 (Tex. App.—Corpus Christi 2002, pet. ref’d). But see Sudds, 140 S.W.3d at 816 (venue will be upheld “if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged” (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964))). Venue will be upheld if the record contains sufficient evidence to support an affirmative finding under any of the alternative venue provisions on which the jury was charged. Murphy, 112 S.W.3d at 605.
The State argues that venue is proper under article 13.19, which provides:
If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.
Tex. Code Crim. Proc. Ann. art. 13.19 (Vernon 2005).
The parties stipulated before trial and K.L. testified that Witt sexually assaulted K.L. in several specific Texas counties other than McLennan County. K.L. also testified that he sexually assaulted her at several rest stops in Texas and that she does not know what counties those rest stops were located in. Thus, the record contains evidence that Witt sexually assaulted K.L. in several known Texas counties other than McLennan County and in several unknown Texas counties. Under these circumstances, article 13.19 applies. See Murphy, 112 S.W.3d at 605; Hood v. State, 638 S.W.2d 622, 623-24 (Tex. App.—Dallas 1982, no pet.).
Witt was apprehended in Hill County and subsequently “extradited” to McLennan County to face pending state and federal court charges. Viewed in a light most favorable to an affirmative venue finding, a rational trier of fact could have found by a preponderance of the evidence that venue was proper in McLennan County because Witt sexually assaulted K.L. in unknown Texas counties and because he was extradited to McLennan County. Thus, we overrule Witt’s sole issue in appellate cause no. 10-06-234-CR.
Having overruled the issues presented, we affirm Witt’s convictions in both cases.
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