If you end up on this jury, and after hearing all of the evidence, you’re convinced that the State has proved every element of the crime beyond a reasonable doubt, except for whether or not it happened in this county, who will still vote guilty?”
That’s a question I first used in voir dire several years ago when picking a jury in a sexual assault of a child case in a rural East Texas county. My client had confessed during police questioning, and the State’s evidence was pretty solid. He rejected the State’s plea offer against my advice, and said he wanted a jury trial. I didn’t have much of a trial strategy, other than to make sure that everything was by the book and that he received full due process.
Our jury pool was full of folks in overalls, work boots, and Carhartt jackets, and I was wracking my brain for something that might delay the inevitable for my client. What popped into my head was the question at the beginning of this article. Not surprisingly to me, a lot, and I mean A LOT of people in the jury pool said they’d still convict, even if the State couldn’t prove beyond a reasonable doubt that it happened in the county where the State said it did. I was two people short of a busted panel when it was all over. I figured I’d found a pretty effective tool for weeding out potential jurors who are predisposed toward a guilty verdict; a weed‑killer, if you will.
Time passed, as it does, and I continued using that question in my voir dire, with varying degrees of effectiveness. The more serious the alleged crime, the more effective the question. Then one day during voir dire in district court, there was a hiccup. I was trying a case against an assistant prosecutor who I knew well; we’d tried several cases against one another in the past. I knew all of his voir dire tricks, and he knew mine. When I asked my weed‑killer question, Mr. Assistant District Attorney objected, asserting that I was misstating the law. It was that day that I learned for the first time that, according to Texas Code of Criminal Procedure Article 13.17, the State’s burden of proof where venue is concerned is by a preponderance of the evidence.
Now, most of you probably knew this already, but at that time I didn’t. Having read jury charges going back to 1999 that instructed the jury that the State must prove beyond a reasonable doubt each element of the alleged offense, including that it occurred in Fill‑In‑The‑Blank County, I assumed that that is what the law was. But now that I did know better, could I ethically continue to ask the question in voir dire?
What’s more, the Court of Criminal Appeals has ruled that venue is not an element of an offense, but, rather, something that must be proved to “establish [defendant’s] legal status.”1 However, the Fifth Circuit Court of Appeals has held that venue is an element of any criminal offense.2
So, it would seem that my weed‑ killer question is impermissible because 1) it is a misstatement of the law, and 2) because venue is not an element of a criminal offense.
And yet, take your garden‑ variety jury charge for a state jail felony possession of a controlled substance case. Where the charge regarding the elements is concerned, it will read something like this:
You must decide whether the State has proved, beyond a reasonable doubt, two elements. The elements are that: 1) the defendant, Jane Doe, possessed garden variety Penalty Group I substance in Fill-In-The-Blank County on or about fill‑in‑the‑blank date; and 2) the defendant knew she was possessing a controlled substance. (Emphasis added.)
So, on its face it looks like you can’t ask the weed-killer question during voir dire because it misstates the law and venue is not an element of a criminal offense. But your judge can misstate the law and include venue as an element of the offense in the jury instructions. That seems like a non sequitur to me, but I don’t wear a black robe.
Does a conflict between a judge’s jury instruction and the law have any consequence? The Corpus Christi Court of Appeals says yes. If the court’s charge requires the State to prove beyond a reasonable doubt that the offense occurred in Fill-In-The-Blank County, Texas (as almost every jury charge does), then the State does indeed have to prove venue beyond a reasonable doubt.3 In other words, the court’s jury instruction will change the State’s burden of proof if the instruction is clear that the State must prove venue beyond a reasonable doubt.
The Texas Rules of Professional Conduct state that “an advocate has a duty to disclose directly adverse authority [to the court] in the controlling jurisdiction which has not been disclosed by the opposing party.”4 I would ask, then, under what, if any, circumstances the weed-killer question may be used. One possible way is to file a proposed jury charge prior to voir dire using the language that sets the burden of proof for venue at beyond a reasonable doubt, and including it as an element of the offense, as we see in the jury charge example above. If neither the State nor the court raises any objection to that specific language at the pre-trial hearing, you can reasonably argue that you expected that the court would require the State to prove venue beyond a reasonable doubt because of the absence of any push-back from the bench or opposing counsel. Just for kicks, you might also suggest to your judge that she review a few of her most recent jury charges.
In summary, the Code of Criminal Procedure establishes the State’s burden for proving venue as preponderance of the evidence. The Court of Criminal Appeals has ruled that venue is not an element of a crime, but is merely necessary to establish a defendant’s legal status. However, the Fifth Circuit in Strain has ruled that venue is an element in every criminal offense, and the Cunningham decision from the 13th Court of Appeals tells us that the court’s charge to the jury on the State’s burden of proof for venue is what controls. As are many other legal issues, this one is as clear as mud to me.
- Schmutz v. State, 440 S.W.3d 29, 35 (Tex. Crim. App. 2014), citing 40 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure §5:60 (3d ed. 2013).
- United States v. Strain, 396 F.3d 689, 692 (5th Cir. 2005).
- Cunningham v. State, 848 S.W.2d 898, 902, fn. 1 (Tex. App. – Corpus Christi 1993, discretionary rev. ref’d).
- Tex. R. Prof. Conduct, r. 3.03, comment 3 (2022).