I am not having any luck locating any case law or statute that clarifies whether we can prosecute a continuous family violence case when the first act of F/V occurred in another county and the second act of F/V occurred in our county. Any help, case law, guidance, would be appreciated. Thanks!
It appears the applicable statute will be art. 13.18. While art. 13.19 might prove of some help, the better arguments will likely be (first) that an element of the overall offense or part of the transaction occurred in your county. E.g., Reynolds, No. 08-15-00372-CR (El Paso 11-29-17) and Meraz, 415 S.W.3d at 506-07 ("When conduct constituting a single offense is committed in more than one county, venue under the general venue rule is proper in any of those counties.").
Second, in any event, that no substantial right will have been denied from the prosecution landing in your county.
See for this proposition:
The failure of proof of venue by the prosecution does not negate the guilt of the accused. Fairfield, 610 S.W.2d at 779; Blankenship, 170 S.W.3d at 681; see Schmutz, 440 S.W.3d at 35 ("Because venue is not an element of the offense, . . . the failure to prove venue does not implicate sufficiency of the evidence, nor does it require acquittal under Jackson."). Rather, venue error is non-constitutional and is subject to harm analysis under Texas Rule of Appellate Procedure 44.2(b). Schmutz, 440 S.W.3d at 39. Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.-Austin 2013, no pet.). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Gonzalez, 544 S.W.3d at 373; Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287. Any error in the determination of venue will be harmless if your prosecution is considered consistent with the purpose underlying the venue statutes. See Murphy, 112 S.W.3d at 604; Soliz, 97 S.W.3d at 141. See Thompson, 244 S.W.3d at 366 ("Venue rules are intended to ensure that jurors have a natural interest in the case because it touched their community." (citing George E. Dix & Robert O. Dawson, 40 Texas Practice: Criminal Practice and Procedure § 2.02 (2001)). Without any proof of forum shopping, a defendant must show your choice of venue particularly inconvenienced or misled him, prevented him from presenting a defense, or deprived him of a fair judge or jury. See Schmutz v. State, No. 06-12-00059-CR, 2013 WL 1188994, at *3 (Tex. App.-Texarkana Mar. 22, 2013) (mem. op., not designated for publication), aff'd, 440 S.W.3d 29 (Tex. Crim. App. 2014); Thompson, 244 S.W.3d at 366.
The legislature just passed HB 1661 to overtly allow those cases to be prosecuted in any county in which one of the underlying assaults occurred (see new Art. 13.072, eff. 9/1/19). Until then, analogize it to other continuous offenses for which the courts have granted similar leeway, such as Meraz v. State, 415 S.W.3d 502 (Tex. App.--San Antonio 2013, pet ref'd)(continuous sexual abuse of a child can be prosecuted in any county in which an act of abuse occurred).
Thank you, Thank you. This is exactly what I needed!
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