Eliseo Hernandez v. State ( 2004 )

                                                             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 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.