No. 05-04-00297-CR
Opinion Filed March 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th District Court, Collin County, Texas, Trial Court Cause No. 296-80054-03. Affirmed.
Before Justices BRIDGES, RICHTER and LANG.
Opinion By Justice LANG.
Michael Senior, Jr. appeals his conviction for aggravated robbery, with the aggravating element of exhibiting a firearm, for which he was assessed punishment of twenty years in the Texas Department of Criminal Justice. In two issues, Senior contends that (1) the State failed to prove venue was proper in Collin County and (2) the trial court committed reversible error by overruling his Motion for In-Court Lineup. For the reasons stated below, we decide Senior's issues against him and we affirm the trial court's judgment.
I. FACTS AND PROCEDURAL BACKGROUND
On October 29, 2002, the complainant was robbed at gunpoint as he was getting out of his car under the carport in front of his condominum unit. The complainant, as well as a neighbor who witnessed the robbery, testified that the condominium was located in Collin County. Also, diagrams were introduced into evidence showing the condominium unit in relation to the location of the offense. Senior did not object to venue at the trial level. Senior filed a pretrial Motion for In-Court Lineup requesting that the trial court hold a lineup in the courtroom and that the witness be required to pick the assailant from that lineup. Senior also requested that he be allowed to sit in the audience when any witnesses identified the assailant in court. The trial court denied his motion and his request. At trial, the victim identified Senior as the assailant. II. PROPER VENUE
In his first issue, Senior contends that the State failed to prove by a preponderance of the evidence that venue was proper in Collin County. Specifically, he contends that the group of condominiums in which complainant lived was "almost on the county line" between Collin and Dallas Counties. Accordingly, Senior argues that the State failed to prove that the carport itself, where the robbery allegedly occurred, as contrasted with the condominium unit in which the complainant lived, was actually in Collin County. We disagree. Texas Rule of Appellate Procedure 44.2(c)(1) provides that unless venue is disputed in the trial court, the court of appeals must presume that venue was proved in the trial court. Tex.R.App.P. 44.2(c)(1); see also Bordman v. State, 56 S.W.3d 63, 70 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. 1981) (noting that venue is waived by failure to raise it as an issue in the trial court). Venue in criminal cases need only be proved by a preponderance of the evidence, which may be direct or circumstantial. Tex. Code Crim. Proc. Ann. Art. 13.17; see Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App. 1983). The trier of fact may make reasonable inferences from the evidence to decide the issue of venue. See Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.-El Paso 1997, no pet.); Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.-Corpus Christi 1988, pet. ref'd). The evidence is sufficient to establish venue if "from [that] evidence the jury may reasonably conclude that the offense was committed in the county alleged." Bordman, 56 S.W.3d at 70 (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964)). In the present case, Senior admittedly made no objection at trial that venue was improper in Collin County and offered no evidence that venue was not proper in Collin County. Moreover, the evidence supports the conclusion that venue was proper in Collin County. In addition to the complainant, an eye witness testified that the condominiums were located in Collin County. Although there is no direct testimony that the carport itself is in Collin County, the evidence, including exhibits, diagrams and witness testimony, described the proximity of the carport to the condominium unit. As such, the evidence was sufficient to lead a reasonable fact finder to conclude that venue was proper in Collin County. We decide Senior's first issue against him. III. REQUEST FOR IN-COURT LINEUP AND SEATING IN AUDIENCE
In his second issue, Senior contends that the trial court erred by overruling his Motion for In-Court Lineup and by denying him the opportunity to sit in the audience during the witness's in-court identification. Specifically, he contends that by requiring Senior to sit at counsel table, the court gave the witness the opportunity to see Senior, confer with the prosecution to confirm that Senior was the robber, and then positively identify Senior in court. Once again, we disagree with Senior's position. A defendant "simply does not have a right to a lineup, whether conducted before or during trial." Maxwell v. State, 10 S.W.3d 785, 787 (Tex.App.-Austin 2000, no pet.) ("We could locate no authority, nor was any cited to us, for the proposition that a defendant has the right to a pretrial lineup."). Furthermore, there is no law which prohibits a court from requiring a defendant to sit at the counsel table with his attorney during trial. Moore v. State, 424 S.W.2d 443, 45 (Tex. Crim App. 1968). A motion requesting that a defendant be allowed to sit in the audience is "wholly without merit." Id. at 444-45; Maxwell, 10 S.W.3d at 787. We conclude the trial court was not required to grant Senior's Motion for In-Court Lineup. See Maxwell, 10 S.W.3d at 787. This decision was a matter of discretion. Further, Senior's oral request that he not be required to sit at counsel table during the in-court identification at trial, but that he be allowed to sit in the audience, was without merit. See id. We cannot conclude that the trial court abused its discretion in denying Senior's Motion for In-Court Lineup or his request to sit in the audience. We decide against Senior on his second issue. IV. CONCLUSION
Having overruled Senior's two issues, we affirm the trial court's judgment.