Comment

Generally, venue requires only that the state prove that the charged offense was committed in the county of prosecution. In exceptional cases, the state may invoke the statutory provisions that sometimes permit prosecution in one county of an offense committed in another county. When this occurs, the jury instructions on venue may be quite complicated. See Whitley v. State, 635 S.W.2d 791, 797 (Tex. App.—Tyler 1982, no pet.).

Venue is not an element of the charged offense and need be proved only by a preponderance of the evidence. Tex. Code Crim. Proc. art. 13.17. Obviously, the instructions need not tell the jury that proof beyond a reasonable doubt is required. Villani v. State, 116 S.W.3d 297, 308–09 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“[The] proposed instructions [misstated the law because they] would have required the State to prove venue beyond a reasonable doubt, when the State is only required to prove venue by a preponderance of the evidence.”).

Practice, however, has been to simply phrase the instructions as requiring proof beyond a reasonable doubt of all the charging instrument’s allegations, including the allegation that the offense was committed in the county specified. E.g., Melton v. State, 158 S.W. 550, 552 (Tex. Crim. App. 1913) (“[The] charge [in a rape prosecution] expressly required the jury to believe beyond a reasonable doubt that the appellant had sexual intercourse with [the victim] in Eastland [C]ounty, Tex. . . . .”).

The Committee considered recommending a charge that distinguished venue from the elements of the charged offense and told the jury that venue need be proved only by a preponderance of the evidence. It concluded, however, that generally the state would not be significantly disadvantaged by having to prove venue by proof beyond a reasonable doubt. Explaining to juries the need to separate venue and treat it differently would, on the other hand, often add to the complexity of the instructions and the difficulty of jurors’ comprehension of them.

On balance, then, the Committee recommends the widespread practice of simply telling juries that among the matters that must be proved beyond a reasonable doubt is the commission of the offense. In unusual cases in which more elaborate instructions on venue must be given, of course, those instructions might best be drafted to make clear that the burden of proof is only the lesser one.