Justin Link Hudson v. State of Texas--Appeal from 198th Judicial District Court of Kimble County

Nos. 04-00-00482-CR & 04-00-00483-CR
Justin Link HUDSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kimble County, Texas
Trial Court Nos. 00-1023 & 00-1022
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

Justin Link Hudson ("Hudson") appeals his convictions of aggravated sexual assault. In eight points of error, Hudson raises two issues, contending: (1) the trial court abused its discretion and violated Hudson's constitutional rights by transferring venue; and (2) Hudson's constitutional rights were violated when the trial court ordered his sentences to run consecutively. We overrule Hudson's contentions and affirm the trial court's judgments.

Venue

In his first six points of error, Hudson asserts that the trial court abused its discretion and violated his constitutional rights by transferring venue of the underlying causes from Mason County to Kimble County without notice or a hearing. It is undisputed that the offenses occurred in Mason County, not Kimble County.

With regard to Hudson's constitutional assertions, this court has held that a defendant has "no constitutionally protected interest in being tried in a particular county," and the Sixth Amendment's right to trial by a jury from the locality where the crime was committed "does not apply to state prosecutions." Garza v. State, 974 S.W.2d 251, 259, 261 (Tex. App.--San Antonio 1998, pet. ref'd); see also Bath v. State, 951 S.W.2d 11, 19 (Tex. App.--Corpus Christi 1997, pet. ref'd) (holding Sixth Amendment requirement for prosecution to be tried in district where crime was committed does not apply to state prosecutions). We further held that a trial court's failure to conduct a hearing before transferring venue does not deprive a defendant of due process. Garza, 974 S.W.2d at 261. Hudson also argues that applying article 13.15 to permit a change in venue to Kimble County would violate the prohibition against ex post facto laws because Kimble and Mason counties were in different judicial districts when he committed the offenses. "Under United States or Texas Constitutional analysis, an ex post facto law: (1) punishes as a crime an act previously committed which was innocent when done; (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; (3) deprives a person charged with a crime any defense available at the time the act was committed; or (4) alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense in order to convict the offender." Rodriguez v. State, 2001 WL 253439, at *3 (Tex. App.--Fort Worth Mar. 15, 2001, no pet. h.). The application of article 13.15 to permit the transfer to Kimble County does not meet any of these tests. Furthermore, article 13.15 does not restrict the district court from transferring venue to another judicial district.

In this case, the trial court transferred venue on its own motion, finding that: (1) a conflict in scheduling required a reset in the trial date; (2) the next available jury was in Kimble County; and (3) the underlying causes had been pending for over a year. The trial court's order states that venue is transferred pursuant to article 13.15 of the Texas Code of Criminal Procedure. No prior notice of the trial court's intent to transfer venue was provided to Hudson, and no hearing was held before the trial court entered its order.

Hudson contends that prior notice and a hearing are required by article 31.01 of the Texas Code of Criminal Procedure. Article 31.01 states, in pertinent part:

Whenever in any case of felony or misdemeanor punishable by confinement, the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, after due notice to the accused and the State, and after hearing evidence thereon, order a change of venue to any county in the judicial district in which such county is located or in an adjoining district, stating in his order the grounds for such change of venue.

Tex. Code Crim. Proc. Ann. art. 31.01 (Vernon 1989). The State contends that notice and a hearing are not required because the trial court transferred venue pursuant to article 13.15, not article 31.01. Article 13.15 provides, in pertinent part:

Sexual assault may be prosecuted in any county in which it is committed, in the county in which the victim is abducted, or in any county through or into which the victim is transported in the course of the abduction and sexual assault. ... The district courts are authorized and directed to change the venue in such cases whenever it shall be necessary to secure a speedy trial.

Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon Supp. 2001). Therefore, unlike article 31.01, article 13.15 does not contain any language requiring prior notice and a hearing.

In this case, the trial court specifically stated that it was transferring venue pursuant to article 13.15 in order to secure a speedy trial. Article 31.01 only applies if the trial court seeks to transfer venue on its own motion because a fair trial cannot be had in the county in which the defendant is to be tried. Notice and a hearing are required under article 31.01 to give the defendant an opportunity to convince the court that a fair trial can be had without a change of venue. However, the trial court has intimate knowledge of its own docket and has the best knowledge of whether a speedy trial can be had in the county in which the case is then set. The legislature likely did not require notice and a hearing under those circumstances because the defendant would have no information that could otherwise convince the court with respect to the speedy trial issue.

Even assuming notice and a hearing are required under article 13.15, Hudson cannot show that he was harmed by the trial court's decision to transfer venue based on the absence of notice and a hearing. Hudson's attorney learned of the venue change on June 7, 2000. On June 14, 2000, Hudson filed an objection to venue change. On June 16, 2000, eleven days before trial commenced, the trial court held a hearing on Hudson's objection. After hearing the evidence, the trial judge overruled the objection, stating:

Well, I don't think the objection to venue - I mean, the statute is very clear where the Court has a scheduling problem due to the number of cases it has set that are sexual assault cases, and we have approximately 12 or 14 sexual - aggravated sexual assault of children cases set for trial right now that I can move that case to another county within my district, and that's the reason we moved it to an adjoining county so we can get it tried.

And I think your - I think your client is entitled to have it tried after two and a half years of pending, and I think the victims or alleged victims are entitled to have this thing go forward, and that's the reason that since this thing all came to light that we've set it for trial along with - along with 12 or 15 other cases. You know, they're getting the same thing, and we move them routinely in this district from county to county to get them tried, so that's what we're doing.

Although the hearing was held after venue had been transferred, Hudson was able to present his argument and evidence in an effort to convince the trial court that venue should not have been transferred. Therefore, Hudson cannot demonstrate that he was harmed by the lack of prior notice and a hearing even assuming he was entitled to such notice and a hearing. (1)

Hudson's first six points of error are overruled.

Consecutive Sentences

In his seventh and eighth points of error, Hudson complains that his constitutional rights were violated because the trial court should not have been permitted to order his sentences to run consecutively without a jury finding that the offenses arose out of the same criminal episode. However, the legislature has vested the trial court with the discretion to determine whether consecutive sentences should be ordered, and whether the offenses arose out of the same criminal episode is an issue that the courts decide. See Guidry v. State, 896 S.W.2d 798, 799 (Tex. Crim. App. 1995) (remanding cause to appellate court to decide if offenses arose out of same criminal episode); Macri v. State, 12 S.W.3d 505, 511 (Tex. App.--San Antonio 1999, pet ref'd) (stating trial judge has discretion to cumulate sentences). In this case, the offenses met the definition of "criminal episode" because they were the "repeated commission of the same or similar offenses." See Tex. Pen. Code Proc. Ann. 3.01 (Vernon 1994); O'Hara v. State, 837 S.W.2d 139, 142 (Tex. App.--Austin 1992, pet. ref'd) (finding separate counts of sexual assault of same victim on different dates constituted a "repeated commission of the same or similar offenses" for purposes of section 3.01). Hudson's seventh and eighth points of error are overruled.

Conclusion

The trial court's judgments are affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. From the reporter's record of the hearing on Hudson's objection, it appears Hudson is claiming he was harmed because he was precluded from pleading guilty to the jury in order to preserve for appellate review his complaint regarding venue. However, since Hudson raised the venue issue by written motion and the motion was ruled on before trial, Hudson could likely have raised the venue issue on appeal even if he pled guilty. See Young v. State, 8 S.W.3d 656,666-67 (Tex. Crim. App. 2000),