Shannon Conklin and Texas Department of Public Safety v. Janice Garrett--Appeal from 145th District Court of Nacogdoches County

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State: Texas

Court: Texas Northern District Court

Docket No: 12-04-00344-CV

Case Date: 10/31/2005

Plaintiff: Eliseo Hernandez

Defendant: The State of Texas--Appeal from County Criminal Court No. 11 of Dallas County

Preview:Eliseo Hernandez v. The State of Texas--Appeal from
County Criminal Court No. 11 of Dallas County
11th Court of Appeals
Eastland, Texas
Opinion
Eliseo Hernandez
Appellant
Vs. No. 11-02-00292-CR B Appeal from Dallas County
State of Texas
Appellee
A jury convicted Eliseo Hernandez of the offense of unlawfully operating a motor vehicle while intoxicated, a class B
misdemeanor. The judge assessed punishment at 120 days in the Dallas County Jail, probated for 24 months, and a fine
of $600. We affirm
On April 1, 2002, around 2:00 a.m., Officer Tony Nixon, a DFW Airport law enforcement officer, observed appellant
when he failed to keep his vehicle in a single lane of traffic. The offense occurred in the vicinity of the 2300 block of
Highway 114 in Tarrant County. After Officer Nixon observed appellant cross over into other lanes four or five times,
he turned on his overhead lights and began the procedure to stop appellant=s vehicle. Officer Nixon began the stop in
the vicinity of the 1800-1700 block of westbound Highway 114. Appellant stopped his vehicle in the 1500 block of
Highway 114. Officer Nixon testified that the 1500 block is outside of the jurisdiction of the airport. However, the
traffic offenses that Officer Nixon saw all occurred within the jurisdiction of the airport. After Officer Nixon conducted
field sobriety tests, he arrested appellant.
Appellant=s three points of error question the proof of venue. He claims in his first point of error that jurisdiction is an
element of the misdemeanor offense of driving while intoxicated. The elements necessary to prove that a person
committed the offense of driving while intoxicated are: (1) a person; (2) is intoxicated; (3) at the time of; (4) operating;
(5) a motor vehicle; (6) in a public place. Purvis v. State, 4 S.W.3d 118, 120 (Tex.App. B Waco 1999, no pet=n);
Galvan v. State, 995 S.W.2d 764, 766 (Tex.App. B San Antonio 1999, no pet=n). Appellant does not attack any of
those findings. Failure to prove venue in the court where the prosecution is taking place is reversible error. Couchman
v. State, 3 S.W.3d 155, 161 (Tex.App. B Fort. Worth 1999, pet=n ref=d.). Venue must be proven, but it is not an
element of the misdemeanor offense of driving while intoxicated. Purvis v. State, supra; Galvan v. State, supra.
Appellant=s first point of error is overruled.
Appellant contends in his last two points of error that the evidence was legally and factually insufficient to show that
venue was proper in Dallas County. In order to determine if the evidence is legally sufficient, we must review all of the
evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v.
State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review
all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the
conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when
taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction
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clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66
S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404
(Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
TEX. CODE CRIM. PRO. ANN. art. 13.04 (Vernon Supp. 2004) provides:
An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be
prosecuted and punished in any one of such counties and any offense committed on the premises of any airport
operated jointly by two municipalities and situated in two counties may be prosecuted and punished in either county.
DFW airport is located in Dallas and Tarrant counties. Officer Nixon testified that, although the 2300 block of
Highway 114 is in Tarrant County, it was within the airport=s jurisdiction. Officer Nixon testified that by jurisdiction
he meant A[t]he area of the airport.@ Officer Nixon further testified on cross-examination by defense counsel that he
was Aon the airport,@ although not Aon a airport terminal.@ Officer Robert Knight, the backup DFW Airport law
enforcement officer, testified that the jurisdiction of the airport covers 28 square miles of both Dallas and Tarrant
Counties. Officer Knight also set out the east, west, north, and south boundaries of the airport. The State proved by a
preponderance of the evidence that the offense occurred on the premises of DFW airport. Venue is proper in Dallas
county. Article 13.04. We also note that a law enforcement officer commissioned as airport security personnel under
the Transportation Code has jurisdiction Awhile on property under the control of the airport or acting in the actual
course and scope of the person=s employment.@ TEX. TRANSP. CODE ANN. ' 23.003 (Vernon 1999). Venue was
established by legally and factually sufficient evidence. Appellant=s second and third points of error are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
January 15, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
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