Kenneth Scott Dickinson v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00018-CR

Kenneth Scott Dickinson,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2022-2165-C1

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Kenneth Scott Dickinson was convicted of the offense of aggravated

sexual assault of a child and sentenced to thirty years in prison. See TEX.

PENAL CODE ANN. § 22.021. In his sole issue on appeal, Dickinson argues that

the State failed to prove by a preponderance of the evidence that the charged

offense occurred in McLennan County. We affirm.
PROOF OF VENUE

Chapter 13 of the Code of Criminal Procedure requires the State to prove

that the prosecution is brought in the proper venue. See TEX. CODE CRIM.

PROC. ANN. art. 13.17. The general venue provision of Chapter 13 provides

that venue is proper in the county in which an offense was committed. Id. at

art. 13.18. An appellate court must presume that venue was proven unless it

was challenged in the trial court or the record affirmatively shows the contrary.

TEX. R. APP. P. 44.2(c)(1); State v. Blankenship, 170 S.W.3d 676, 681 (Tex.

App.—Austin 2005, pet. ref’d). Dickinson concedes that venue was not

challenged in the trial court; therefore, our error analysis focuses on whether

“the record affirmatively negates whatever proof was made by the State on the

matter of venue.” Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex. Crim. App.

1986).

In reviewing a challenge to proof of venue, we apply a modified version

of the familiar Jackson v. Virginia standard for legal sufficiency. Witt v. State,

237 S.W.3d 394, 399 (Tex. App.—Waco 2007, pet. ref’d).1 We view all the

evidence in the light most favorable to an affirmative venue finding and ask

whether any rational trier of fact could have found by a preponderance of the

evidence that venue was proven. Id. Venue may be proven by direct or

1 See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Kenneth Scott Dickinson v. The State of Texas Page 2
circumstantial evidence, and the jury may draw reasonable inferences from the

evidence to decide the issue of venue. Thompson v. State, 244 S.W.3d 357, 362

(Tex. App.—Tyler 2006, pet. dism'd).

Here, Dickinson was charged with a single count of aggravated sexual

assault of a child in McLennan County, Texas by three alternative means:

contacting “Jane Doe’s” sexual organ with his sexual organ, contacting Jane’s

anus with his sexual organ, and/or causing Jane’s mouth to contact his sexual

organ. Jane’s trial testimony established that when she was a child, she lived

in two different locations with her family. She lived in the Landmark

Apartments in Waco until the middle of first grade, and then the family

relocated to a residence in China Spring. We take judicial notice, as Dickinson

has requested, that Waco is in McLennan County, Texas, and that the specific

address of the subject China Spring residence is located in Bosque County,

Texas. See TEX. R. EVID. 201; Barton v. State, 948 S.W.2d 364, 365 (Tex. App.—

Fort Worth 1997, no pet.) (recognizing that an appellate court may take judicial

notice of geographic facts because they are easily ascertainable and capable of

verifiable certainty).

At trial, when asked about the first memory she had of Dickinson “doing

something inappropriate to [her] or with [her],” Jane recalled an incident at

the Landmark Apartments in Waco. She remembered being on her hands and

Kenneth Scott Dickinson v. The State of Texas Page 3
knees on the bed while Dickinson applied “some type of ointment on the ring

of my butt hole. And he was saying, This will help you heal.” Jane did not

recall exactly what preceded Dickinson’s application of the ointment. The

State did not question Jane about any additional specific instances of sexual

abuse that may have occurred at the Landmark Apartments.

Jane then testified that she had vaginal intercourse with Dickinson for

the first time while living in China Spring, which occurred on multiple

occasions. Jane also testified that she performed oral sex on Dickinson several

times in China Spring.

At the end of direct examination, the State asked Jane, “Is there

anything you feel like the jury needs to know about what you went through

that we haven’t already talked about?” Jane responded, as relevant here,

“Sometimes - - well, more than once, he would shut the bedroom of his door

[sic]. I mean, shut the door of his bedroom and he would do anal every now

and again. I don’t entirely remember how many times. But I do know it was

numerous times over the years.”

Dickenson argues that the record affirmatively shows that McLennan

County was not the proper venue for trial of this offense because the ointment

incident – the only specific incident Jane testified to in McLennan County –

Kenneth Scott Dickinson v. The State of Texas Page 4
does not correspond with any of the manner and means alleged in the charging

instrument. We disagree.

Viewing the evidence in the appropriate light, the record does not

affirmatively and conclusively demonstrate that McLennan County was an

improper venue. The State’s question at the end of direct examination was not

limited to sexual activity that occurred in the China Spring house in Bosque

County. Jane’s answer that Dickinson would “do anal every now and again

[…] numerous times over the years[,]” was also not limited to sexual activity

in the China Spring house. When further considered in conjunction with

Jane’s testimony that Dickinson was putting ointment on her anus in Waco to

help her “heal,” and that Dickinson “most of the time” engaged in anal sex with

her before they ever engaged in vaginal intercourse, we find that the jury

reasonably could have found venue by a preponderance of the evidence in

McLennan County for anal-to-sexual-organ contact as alleged.

HARMLESS ERROR

Even if the State failed to sufficiently prove venue in McLennan County,

we find that the error, if any, was harmless.

Failure to prove venue does not implicate structural or constitutional

error. Schmutz v. State, 440 S.W.3d 29, 35-39 (Tex. Crim. App. 2014). Venue

error is subject to a harm analysis under Rule 44.2(b). See TEX. R. APP. P.

Kenneth Scott Dickinson v. The State of Texas Page 5
44.2(b); Schmutz, 440 S.W.3d at 39. Non-constitutional error that does not

affect a defendant’s substantial rights must be disregarded. See id. A criminal

conviction should not be overturned for non-constitutional error if, after

examining the record as a whole, this Court has fair assurance that the error

did not influence the jury, or had but a slight effect. Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998).

When considering whether a venue error caused harm to the defendant,

we consider whether the venue error inconvenienced the defendant, whether

the defendant had notice that he would be prosecuted in the improper county,

whether the venue allegation misled the defendant or prevented him from

presenting a defense, and whether there was a showing that the jury in the

improper county was impartial. Thompson, 244 S.W.3d at 365–66.

Because venue is not an element of a criminal offense, venue errors typically

do not prejudice the jurors' decision making process; even though venue might

be improper, the jurors are “still able to properly apply the law to the facts

finding proof of all elements” of the offense. Id. at 366.

Dickinson acknowledges the framework outlined in Thompson; however,

he urges us not to consider those factors in our harm analysis. We have

previously relied upon the Thompson factors in a harmless-error analysis on

venue-related error and see no reason to abandon those factors in this case.

Kenneth Scott Dickinson v. The State of Texas Page 6
See Westbrook v. State, 10-19-00119-CR, 2021 WL 3773474, at *7 (Tex. App.—

Waco Aug. 25, 2021, pet. ref’d) (mem. op., not designated for publication). After

review of the entire record, we agree with Dickinson’s concessions on appeal

that “the record contains no indication that the State sought a favorable forum

or engaged in venue manipulation. McLennan County lies in proximity to

Bosque County. Appellant received timely notice of the venue, and nothing

suggests he was impaired in preparing or presenting his defense. Nor does the

record indicate that he was misled, denied procedural protections, or subjected

to a partial jury.”

We have fair assurance that any error in trying the case in McLennan

County did not influence the jury, or had but slight effect. Finding the error,

if any, to be harmless, we overrule Dickinson’s sole issue on appeal.

Accordingly, we affirm the judgment of the trial court.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: February 5, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

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