Opinion
No. 05-08-00801-CR
Opinion issued April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-48164-V.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
A jury convicted Jeremiah Deshean Phillips of aggravated sexual assault. He now complains on appeal that the evidence in his case was insufficient to establish venue in Dallas County and he received ineffective assistance of counsel. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. Appellant complains in his first point of error that the evidence in his case was insufficient to establish venue in Dallas County. In a criminal trial, the State is required to prove venue by a preponderance of the evidence. Braddy v. State, 908 S.W.2d 465, 467 (Tex.App.-Dallas 1995, no pet.). Venue may be proven by direct or circumstantial evidence. Id. We must presume that venue was proved in the trial court unless the record affirmatively shows otherwise or venue was "made an issue at trial." Id. Here, the defense never challenged the State's proof of venue at trial, and the record fails to affirmatively show that Dallas County was not the appropriate venue for the case. We therefore overrule appellant's first point of error. In a related point of error, appellant complains his trial attorney provided ineffective assistance of counsel by not objecting to the State's failure to prove venue in the case. We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). It is appellant's burden to show by a preponderance of the evidence trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced him. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). The complainant testified that she had lived in Dallas all her life. She stated that before appellant, her onetime boyfriend, sexually assaulted her, he brutally beat and kicked her at his brother's house in South Dallas. He then forced her into her car and began driving. At one point, he drove by the Trinity River in South Dallas and threatened to throw her in. Later, according to the complainant's testimony, he sexually assaulted her in the garage attached to the apartment where she lived. Her claim of where the sexual assault took place conflicted with the police report for the offense, which stated that the sexual assault occurred in the car as it was parked in an apartment parking lot at 3245 Simpson Stuart. It also conflicted with a police officer's claim that the complainant had told him appellant sexually assaulted her in her car while it was parked in a "wooded area." Hours after the sexual assault, appellant took the complainant to an apartment complex near her home. Friends there rescued the beaten complainant from appellant and helped her call for police and an ambulance. A police officer testified that he was dispatched to the 3200 block of Persimmon in Dallas County, where he saw the complainant's injuries. Documentation from Baylor University Medical Center in Dallas confirm that she was initially treated there. Finally, the complainant stated that appellant's grandmother lived in the apartment complex "next-door" to her apartment complex, so she was able to watch the police arrest appellant for the sexual assault at his grandmother's apartment. The grandmother confirmed at trial that she lived very near the complainant's home. Dallas police arrested appellant in the Simpson Stuart area. Based on the evidence in the case, we cannot see how defense counsel could have successfully challenged the State's proof of venue in Dallas County. See Tex. Code Crim. Proc. Ann. arts. 13.15, 13.19 (Vernon 2005). Appellant has failed to meet his burden of proving ineffective assistance of counsel. We overrule his second point of error. We affirm the trial court's judgment.