Jonathan Menard v. the State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00298-CR ________________ JONATHAN MENARD, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________________ On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. F21-37033 ________________________________________________________________________ MEMORANDUM OPINION A jury convicted Jonathan Menard of capital murder of multiple persons in a single criminal transaction for the asphyxiation and strangulation of “Kim” and her unborn child, “Kris.”1 See Tex. Penal Code Ann. § 19.03(a)(7)(A), (b). The jury then 1 We refer to the victims and their family members by pseudonyms to conceal their identities. See Tex. Const. art. I, § 30 (protecting a crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”); Smith v. State, No. 09-17-00081-CR, 2018 Tex. App. LEXIS 1874 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem. op., not designated for publication). 1 sentenced him to life without parole. See id. § 12.31(a)(2). On appeal, Menard raises four issues challenging: (1) the sufficiency of the evidence relating to the murder of Kris; (2) the trial court’s jury charge; (3) the trial court’s denial of the defense’s motion for directed verdict as to venue; and (4) the trial court’s decision to allow a witness to testify about an extraneous conduct and character evidence. We affirm the trial court’s judgment for the reasons discussed below. Background Timothy Ledoux Timothy Ledoux lives in Louisiana and works for a vacuum truck company. On February 11, 2021, Ledoux was sent to a remote area in Calcasieu Parish south of Interstate 10 in Vinton, Louisiana. He described the area as a large cattle ranch and oil field. When Ledoux arrived at the ranch and went to open the gate, he noticed trash in the grass to his left and “what looked like a bone or something[]” protruding from the ground. When Ledoux looked more closely, he realized the bone appeared to be from a human foot. He notified his employer who contacted the Calcasieu Parish Sheriff’s Office. Melissa Durflinger Melissa Durflinger is a forensic detective with the Calcasieu Parish Sheriff’s Office. On February 11, 2021, Durflinger was called to the scene in Vinton, Louisiana. She described the area as “rural” and said not many people would know it was there. That day, it was raining, sleeting, and cold. Durflinger started her 2 investigation, took photographs and video, and marked and collected evidence for examination. Copies of the photographs and videos taken that day were admitted at trial. At the scene, Durflinger found pieces of white fabric and tape scattered about, leading investigators to believe it was “a deceased body wrapped in tarp, partially exposed now in a shallow-type grave.” The next day, Durflinger was present at the coroner’s office for the removal of the wrappings and covers on the victim’s body. Copies of the photographs taken that day were admitted at trial. Durflinger noted that the victim’s body was tied up with various types of tape, wire and ties along with a tarp and a white cloth. The victim’s body was nude and areas that were exposed to the elements were deteriorated, but parts of the victim’s body contained in the material were preserved. Several identifying tattoos were observed on the victim’s body. Chris Davis Chris Davis works in the Beaumont Police Department Crime Scene Unit. In February 2021, Davis conducted an investigation at an apartment located at 1192 McFaddin in Beaumont. During the investigation, Davis took pictures of the apartment that were admitted at trial. Frank Coffin, III Frank Coffin is a detective with the Beaumont Police Department. Coffin interviewed Menard on January 6, 2021, before Kim’s body was found. At that time, 3 Kim was reported as a missing person, and prior to her disappearance, Kim and Menard were in dating relationship and expecting a child together. A copy of the interview was admitted and played for the jury. At the interview, Menard told Coffin that Kim left because Menard told Kim he was going to do everything he could to take their child away from her. Coffin did not believe Menard was being truthful in his interview. Casey LaFargue Casey LaFargue is a commander with the Calcasieu Parish Sheriff’s Office. LaFargue described the area the body was found as “[v]ery desolate[,]” “[r]emote[,]” and “[r]ural.” LaFargue was on the scene to help assist with removing the body. He was not surprised, based on the conditions that day and the conditions of the body, that no other DNA was found. On February 11, 2021, LaFargue interviewed Menard after Kim’s body was found. A copy of the interview was played for the jury. He felt that overall, Menard was not being truthful in his interview, especially when he told investigators he had nothing to do with Kim’s death or the disposal of her body. LaFargue noted inconsistencies in Menard’s interview, including Menard’s representations of how regularly Kim spoke with her mother. Mother Kim’s Mother (“Mother”) described her daughter as quiet and shy as a child. Kim had a child in 2009 and graduated college in 2013. In August 2014, Kim was 4 charged with sexual assault for a relationship with a minor and, after a plea deal, was sentenced to six years of incarceration. After nearly “five and half years” in prison, Kim was released and sent to a halfway house in Beaumont in March 2020. Kim met Menard at the halfway house. In June 2020, Kim moved out of the halfway house and into an apartment with Menard. Kim and Mother continued to communicate regularly. In September 2020, Kim told Mother she was pregnant. Kim began prenatal care with doctors in Beaumont and found out she was having a boy. The last time Mother and Kim talked was November 23, 2020. Mother recalled that leading up to their last conversation, “I texted her several times with no response. I, um, called and the phone just kept ringing. It didn’t, you know -- it didn’t pick up. So, I sent Jonathan a text and I said, Hey, I’m trying to get ahold of [Kim]. Can you please have her call me.” Later that night, about 7 p.m., Kim called Mother from Menard’s phone. After November 23rd, Mother continuously tried to contact Kim, sending text and voice messages to Kim and Menard, and calling on Thanksgiving. Mother became “extremely concerned” because her daughter never called her back. Mother continued to try to contact Kim on her granddaughter’s birthday and Christmas, including sending several messages to Menard. Menard responded on December “10th or 11th” and Mother asked him to have Kim call her. Kim never called Mother. On Christmas Day, Mother received an email from Kim, 5 a form of communication Kim rarely used with Mother. At first, Mother was excited to receive any communication from Kim but then began to doubt its authenticity. It just kept nagging at me, that I thought something about it didn’t seem right, and all weekend I just kept reading it and reading it and reading it. So, yeah, there was quite a bit that when I kinda looked -- I looked at it from the standpoint of kinda the grammar and the language, the style of it being written, and then I also looked at it from the standpoint of really what was the content of it and did that make sense to me that she would have written it. Mother called Kim’s obstetrician and found out that she did not attend her last prenatal appointment on December 15th. On December 28th, Mother wanted to call the police, but first, she called Menard and asked where Kim was. Menard told Mother “a couple of things[.]” First, that he thought Kim had flown somewhere for Thanksgiving, which Mother believed was unusual since Mother had offered to fly Kim home for Thanksgiving and Kim had said she could not come. Menard also told Mother that someone came and picked up Kim’s car. Menard told Mother he heard that Kim was living with a friend who visited her in prison. Mother called this person, and the friend denied communicating with Kim since March 2020, which Mother validated with Kim’s phone records. Menard also mentioned that Kim’s social media page stated she moved to Dallas. Mother did not believe this social media page was Kim’s for several reasons. Kim did not really use social media, the page had a different name not used by Kim, Kim did not like big cities such as Dallas, the account used an old picture of her, the 6 profile stated she was married when she was not, and the majority of her “friends” connected to the page were in foreign countries. Mother also noted that Menard told her that Kim had blocked him on social media, yet the social media page showed Kim was following him, which Mother thought was “really odd” if Kim really did not want Menard to know where she was. The conversation with Menard did not alleviate Mother’s fears, and after getting off the phone with Menard, Mother called the Beaumont Police Department and reported Kim as missing. On February 11, 2021, Mother was told that Kim’s body was found in Vinton, Louisiana. Mother identified Kim through the tattoos on her body. Carlos Young Carlos Young worked with Menard at Jack in the Box. Young recalled that he never approached Kim or talked to her because Menard would give him “looks” and had “aggression[.]” Menard accused Young of having a relationship with Kim, but Young denied it. Young described Menard and Kim’s relationship as “weird[,]” and said that Menard controlled Kim. Kim would sleep in the car all night waiting for Menard to get off his shift. Once, Young observed Menard physically assaulting Kim while Young was visiting their apartment. Menard also sent texts to Young, pretending to be Kim. 7 Chelsie Abbott Chelsie Abbott was convicted of aggravated sexual assault of a child and sentenced to prison. She met Kim while serving her sentence. After being released from prison, Abbott and Kim both were sent to the same program in Beaumont and became reacquainted. She learned that Kim and Menard were in a relationship. During this time, Abbott met David Maddox Moia and entered a relationship with him.2 Eventually, Abbott and Moia and Menard and Kim moved to the same apartment complex in Beaumont. Abbott recalled that the couples did not spend a lot of time together and that Kim kept to herself. Abbott learned Kim was pregnant, which was exciting because Abbott was pregnant was well. She recalled that Kim was happy and excited to be pregnant, and Kim never told Abbott that the baby was not Menard’s child. Abbott did not recall Kim ever cheating on Menard, and Abbott denied that was in Kim’s personality to do. Abbott, Moia, Menard and Kim made tentative plans to get together for Thanksgiving. When Abbott and Kim went shopping for Thanksgiving items, Kim was healthy and visibly pregnant. Abbott never saw Kim again after that day. She never observed Kim packing boxes and moving away. Later, Menard and Moia offered Kim’s car to Abbott, and spray painted the car a different color. After Kim The record refers to David Maddox Moia as “Maddox[,]” but we refer to him 2 as “Moia” in this opinion. 8 was reported missing, Abbott and Moia both voluntarily went and spoke to law enforcement multiple times. Abbott denied knowing what happened to Kim. Abbott recalled a shift in Moia after one police interview in February 2021, noting he was crying, hyperventilating, and visibly distressed even after they returned home. Moia told Abbott why he was upset, and she believed him as his emotions were out of character. Rick Evans Rick Evans was Kim’s obstetrician in Beaumont. Kim’s medical records were admitted at trial. Evans confirmed Kim was pregnant in August 2020, and Kim was diligent and regularly attended all her prenatal appointments until December 15, 2020, when she missed her scheduled appointment. He recalled that Kim’s pregnancy progressed normally, and at her last visit on November 16, 2020, she was around twenty weeks pregnant. Kim did not indicate that she wanted to terminate her pregnancy, and she was happy and excited to be expecting a child. Terry Welke Terry Welke is a coroner physician for the Calcasieu Parish Coroner’s Office in Lake Charles, Louisiana. Welke described his educational and professional background and stated he has performed approximately 8,500 autopsies in his career. On February 12, 2021, he performed an autopsy on Kim’s body. He noted that Kim’s body was significantly deteriorated due to exposure and animals. He determined that 9 Kim probably died due to asphyxia, and he listed her manner of death as homicide. Kim’s death would have caused the death of her unborn child as well. After explaining that asphyxia can happen in many ways, he explained why he came to the conclusion that asphyxia was the probable cause of death: I did not see any evidence of gunshot wounds or stab wounds, so I put down probable asphyxia. The reason I put “probable” is because, like I said, a lower portion of the body was missing, so I don’t know whether there might have been a knife that caused injuries to the abdomen and I was unable to see. Like I said, when I did the examination, most likely the pelvic area was gone because of animal participation, if you will, but I really couldn’t rule out there wasn’t some sort of an injury process involving the abdomen. So, I came up with probable asphyxia, reason being is if someone comes and said, Well, I saw somebody shoot this person or stab them in the lower abdomen, then I – it gives me the ability to make a change in the death certificate in Louisiana. During cross-examination, Welke conceded that he did not have evidence of ligature or manual strangulation, petechial hemorrhaging, or external evidence of an imposed injury. According to Welke there were not enough bodily fluids which could be tested for a pregnancy hormone. Welke also denied that Kim’s body was wrapped in a blue tarp. Billy Stelly Billy Stelly works in Vinton, Louisiana at Gray Ranch. Stelly recalled in December 2020 while working on the ranch, he found a post hole digger and shovel that did not belong to the ranch. Stelly gathered them and put them in the back of his 10 truck. Pictures of the tools were admitted at trial. In February 2021, Stelly gave the tools to law enforcement after Kim’s body was found. David Maddox Moia David Maddox Moia was twenty-three years old at the time of trial and was previously sentenced for aggravated assault as a juvenile. In 2019, Moia was released and sent to halfway houses in San Antonio and Beaumont. While at the halfway house in Beaumont, Moia met Menard, Kim and Abbott. He denied being friends or hanging out with Menard or Kim. He and Abbott began a relationship and moved into the same apartment complex as Kim and Menard. One day, towards the end of November 2020, Menard approached Moia at their apartment complex while Moia was walking his dogs. Menard asked Moia to help him with something which he found “unusual[.]” Moia went to put his dogs back in his apartment and followed Menard to his empty apartment. Kim’s body was inside a storage room inside the apartment. He observed a “body figure” wrapped in a blue tarp. Moia was shocked and scared. Menard and Moia picked up the body, carried it downstairs, and put the body in the trunk of Kim’s car. Menard and Moia then got in the car with Moia driving. He testified that when he became involved, Kim was already dead. Moia denied knowing anything about how Kim was killed and stated her body “wasn’t stiff but it wasn’t too loose[,]” with “[a] little stench but not strong.” Menard gave Moia directions to drive from Texas to Louisiana. Moia 11 asked Menard what happened and Menard responded, “He was tired of her cheating[,]” and that he “lashed out.” Moia recalled exiting the highway in Louisiana, first going to Menard’s grandmother’s home and getting tools, which Menard placed in the back seat of the car. Menard told Moia to cross the interstate again and they took an isolated, not well-traveled road, to a point where the blacktop ended and turned to gravel. Menard told Moia to stop at an area that was a “plain field.” Menard and Moia traveled “[a] good ways[]” from the car and started digging, Menard with a post hole digger and Moia with a shovel. Moia identified the shovel and post hole digger found by Stelly as the same tools they used that day to dig the hole. According to Moia, it took them about an hour to dig the hole which he described as three feet down, five feet long, and two or three feet wide, big enough to fit a body. Menard then told Moia to stop digging, they went back to retrieve Kim’s body out of the car. When Menard moved the body, it fell to the ground and the tarp opened. Moia could see Kim’s skin and that she was visibly pregnant. Menard and Moia moved Kim’s body to the hole and Menard nudged her in the hole and both men began to cover up her body with dirt. After covering the body, they left Louisiana and returned to Beaumont. On the way back to Beaumont, Menard told Moia, “It is done, don’t speak on it.” Moia denied that they had any other conversation. Later, Moia agreed to buy Kim’s car, and Menard and Moia spray painted the car another color. 12  After Kim was reported missing, Moia and Abbott spoke to law enforcement several times. At first, Moia was not truthful but did tell the police what happened to Kim’s body. Moia stated he was afraid that if he told, something would happen to him or his family, especially Abbott and their baby. Moia regretted not telling the police earlier and denied any of the events that happened that day were his idea. During cross-examination, Moia stated he was truthful in his statement to law enforcement. He did not recall whether he had his cell phone on him the day he helped Menard dispose of Kim’s body. Moia specifically recalled telling law enforcement that the tarp around Kim’s body was blue but acknowledged the tarp found around her body was not blue. He also clarified that Menard drove that day. Jerod Abshire Jerod Abshire is a digital forensic investigator with the Calcasieu Parish Sheriff’s Office. He explained that as a digital forensic investigator he “download[s] and process[es] and analyze[s] a multitude of devices; cell phones, DVRs, vehicles. I like to tell people if it’s an airplane that needs to be downloaded, we download it, process it, analyze it and provide that in a format to -- so the investigator can view it.” After Kim’s body was found, Abshire was called to do an extraction of Menard’s phone obtained via search warrant. A copy of the information extracted was admitted at trial. Abshire described his search and extraction as unbiased, explaining, “I don’t know anything. I just -- I’m just trying to figure out what happened before and what 13 happened after this bang that might have occurred. So, I don’t know any different, right? I don’t -- there’s no bias in that phone at all.” Before November 23, 2020, Menard’s phone was in “good use[,]” with calls being made and text messages being sent. Between November 23, 2020, and November 25, 2020, Menard did not use the phone at all. Abshire stated that this could be indicative of the phone’s content being deleted during that time. Abshire found a photo of an Apple iPhone on Menard’s phone taken on November 29, 2020. Menard’s phone was an Android phone. Abshire also found a photo taken at the Texas/Louisiana state line at the Texas westbound rest stop. This photo was taken on November 30, 2020, at 9:02 a.m. Travis Lavergne Travis Lavergne is a captain with the specialized investigations of the Calcasieu Parish Sheriff’s Office. His specialty is cell phone analysis and mapping. Lavergne described his educational and professional background and stated he was tasked with analyzing cell phone records after Kim’s body was found in Vinton, Louisiana on February 11, 2021. Lavergne explained what information is collected from cell data records, noting this information and analysis was different than the data collected by Abshire. So, the call detail records are records that are maintained by the cell carriers, and we will notify -- first, we will identify a target number that we want to pursue a legal process on and begin preservation of the records and then request those records maintained by the carrier, which 14  can include subscriber information; transactional records, call, text, data transactions, could be estimated locate data, could be videos, photographs, device identifiers, e-mails, voicemail’s, IP logs. There’s a multitude of things that that company could maintain that we’re going to attempt to recover. Lavergne can use the data recovered to find where a phone is being used during a certain time. Lavergne managed to get a search warrant and analyze call detail records from Kim’s and Menard’s phones. He obtained data from both phones to determine travel at the end of November 2020. He found that their “home tower” was in Beaumont at their apartment due to the amount of usage in that area. He disputed Menard’s claim that he had not seen Kim since before Thanksgiving, as the records showed their phones were near each other after Thanksgiving. On November 30, 2020, around 3:00 a.m. to 7:00 a.m. both phones traveled together to Vinton, Louisiana. Menard told investigators that his phone was stolen in November 2020 and that he got a new phone. Lavergne disputed this and testified that based on phone records, Menard had the same phone and used it normally throughout November 2020 and January 2021. With Kim’s phone he noticed the following anomalies: So, her cell phone usage, the phone’s transactions the network for what was a known time of last contact from this investigation to the start of the records that we pulled, her average transactions with the network was around 200. The 22nd to the 23rd, there was a spike in transactions up to 600, maybe around 800, kinda -- kinda significant spike, followed by a brief valley thereafter, kind of a good little lull. I believe that the phone lulled down to 80 transactions, which is not only less than the day prior but less than what was typically seen on her device. 15  ... So, from the 23rd through the 24th, that phone was in the Beaumont area on that Beaumont home tower. And then there is a four-day lull, I believe, from the 24th through the 28th -- to the afternoon of the 28th. The phone comes back on network. As a different phone now but still the same tower and sector, home tower near Beaumont. He explained the “lull” on her phone was “minimal to zero activity on the phone. There are no data transactions. There are no text messages. There are no voice calls. There’s no pinging of this phone to see where it is or where the best tower is.” But late on November 29th and early morning November 30, 2020, Kim’s phone reactivated and traveled to Vinton in the area near where her body was found. Menard’s phone also traveled to Vinton, Louisiana at the same time. Lavergne explained that around November 16, 2020, Kim’s phone changed models from an iPhone 6 Plus to an iPhone 6, then on November 30, it changed to a prepaid phone while still on the same cell phone service provider. After her phone was switched to the prepaid phone, text messages were received associated with two factor authentication “typically associated with a password reset from Google. You’re trying to reset the password[,] and you don’t have an alternate e-mail, you can provide a phone number for them to send that reset link to.” After the 30th, no activity appeared on the network again for Kim’s phone. During cross-examination, Lavergne agreed they did not have information about where Kim’s phone was during the “lull” of data in late November, and law 16 enforcement did not have cell phone records that showed Moia being in Vinton, Louisiana on November 24, 2020. Brittany Burch Brittany Burch and Menard were in a relationship and have two children together. In the beginning, the relationship was “great[,]” but Menard became “mentally, emotionally, [and] physically abusive.” Menard accused Burch of cheating “[a]ll the time.” Burch testified that Menard choked her many times, but she specifically recalled one time while she was pregnant where he placed his hands around her neck, and she believed she lost consciousness. I was pregnant with one of my children and holding the other one. He was in a fit of rage. He pushed the refrigerator out of the kitchen into the living room. It didn’t end up falling on me, but he did proceed to choke me to the point of I was -- I was pretty peaceful. I thought I was gonna die. After Burch and Menard separated, Menard gained access to Burch’s social media accounts and sent posts and messages to other people pretending to be Burch. During their relationship he would use her social media account to try to get other people to confess to having an affair with Burch. James Robichaux James Robichaux was called as a witness for the defense. Robichaux is a detective with the Beaumont Police Department, and in 2020 and 2021, he was in the Crimes Against Persons Department, which included investigating murders, 17 robberies, and assaults. Robichaux conducted interviews with Menard and Moia. With Moia, he conducted at least four interviews, because he felt Moia was not being truthful in his interviews. Robichaux confirmed that Kim’s body was found wrapped in electrical tape and a tarp that was primarily orange, not blue, but since he was not present when they removed the body he could not testify as to whether she was nude. He confirmed that Moia said the tarp was blue and there was no tape even after law enforcement questioned if he was right in his recollection. There was also no physical evidence collected in Beaumont that connected Menard with this crime. Additionally, no license plate readers showed Kim’s car going to or from Vinton, Louisiana on November 24, 2020. Video Evidence Video evidence was admitted at trial of Menard’s law enforcement interview. In the interview, Menard accuses Kim of infidelity, and Menard told law enforcement the last time he saw Kim was the Sunday before Thanksgiving. He also confirmed to law enforcement that Kim was about four months pregnant and had a visible baby bump. Video footage was also admitted of the scene where Kim’s body was found in Louisiana. Issue Three We begin our review with the issue that would afford Menard the greatest relief on appeal, issue three in which he challenges the sufficiency of the evidence 18 to support the murder of Kim’s unborn child, Kris. See Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010) (explaining that insufficient evidence to support a conviction may in some instances lead to rendition of an acquittal). Kris’s murder In his third issue, Menard argues the evidence is insufficient to find him guilty of the death of Kris, Kim’s unborn child. Menard contends that although there was evidence that Kim was pregnant in early November 2020, there was no evidence presented that she was pregnant at the time of her death. The jury is the exclusive judge of the credibility of the evidence and the weight to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Thus, the jury is responsible for resolving conflicts in the testimony, is free to believe some, all, or none of a witness’s testimony, and may assign as much or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citation omitted). “[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them.” Id. at 16. When examining whether a criminal conviction is supported by legally sufficient evidence, we compare the evidence to the elements of the offense as defined by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We consider all the evidence, viewed in the light most 19 favorable to the verdict, along with the inferences that could reasonably be drawn from the evidence. Hooper, 214 S.W.3d at 13. We do not assess the credibility of the evidence, reweigh the evidence, nor substitute our judgment for that of the jury. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citation omitted). The evidence is legally sufficient to support the conviction if any rational trier of fact could have found each of the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “Each fact need not point directly and independently to a defendant’s guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted); see also Garcia v. State, 667 S.W.3d 756, 761-62 (Tex. Crim. App. 2023) (citation omitted) (“A proper review of evidentiary sufficiency considers the cumulative force of the evidence.”). A person commits capital murder if he commits murder, intentionally or knowingly causes the death of an individual, and he murders more than one person during the same criminal transaction. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A). The Court of Criminal Appeals has explained: Under the Texas Penal Code, a person commits capital murder if he intentionally or knowingly causes the death of “more than one person ... during the same criminal transaction.” A “person” includes an “individual.” The Penal Code in turn defines an “individual” as “a 20  human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” It follows from these provisions that a person who intentionally or knowingly causes the death of a woman and her unborn child, at any stage of gestation, commits capital murder. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (internal citations omitted). Further, [T]he State is not required to produce and identify the body or remains of the decedent. The State’s possession of a dead body can make proving the victim’s death easy, but the victim’s death can be proved through other evidence, even if that evidence is circumstantial. The notion that the careful and meticulous murderer might escape punishment by destroying or forever concealing the body of his victim is a distasteful one, and the murderer’s successful disposition of the victim’s remains should not be rewarded. And partly for this reason, it need not necessarily be known what caused the victim’s death. [T]he cumulative force of all the incriminating circumstances can support a murder conviction even if the evidence did not prove the method of commission of the offense. Evidence of how a victim died would likely be helpful in proving that the victim is dead (as well proving other elements of murder), but the ultimate question is whether the evidence, when viewed as a whole, is sufficient to establish the victim’s death. Nisbett v. State, 552 S.W.3d 244, 263-64 (Tex. Crim. App. 2018) (internal citations and quotations omitted). Although Menard contends because the child’s body was not found and no evidence was presented that Kim was pregnant at the time of her death, “[a] jury may consider several factors in linking a defendant to the victim’s disappearance (and ultimately to [his] death)” including circumstantial evidence. Williams v. State, 21 No. 12-24-00318-CR, 2026 Tex. App. LEXIS 4147, at *25 (Tex. App.—Tyler Apr. 30, 2026, no pet.) (mem. op.) (citing Neisbett 552 S.W.3d at 265). Mother testified that Kim told her she was pregnant, Kim was pregnant when she stopped communicating with Mother, and that Kim was receiving prenatal care. Evans stated he was Kim’s obstetrician and that Kim regularly attended her prenatal appointments, most recently in early November, at her last appointment she was about twenty weeks pregnant, and she had a healthy pregnancy at the time of her last appointment. Abbott testified that Kim told her she was pregnant, and Kim was visibly pregnant when they went grocery shopping together for Thanksgiving dinner. Finally, Moia testified that when he and Menard moved Kim’s body from the car trunk, the body fell to the ground, the tarp moved, exposing Kim’s body, and she was visibly pregnant. Based on this evidence, a rational juror could have reasonably concluded beyond reasonable doubt that Menard intentionally or knowingly caused the death of Kim and her unborn child, Kris. See Tex. Penal Code Ann. § 19.03(a)(7)(A); see also Jackson, 443 U.S. at 318-19; Garcia, 667 S.W.3d at 761-62; Balderas, 517 S.W.3d at 766; Lawrence, 240 S.W.3d at 915. Thus, we hold the evidence was legally sufficient to establish that Menard committed capital murder of Kris. We overrule this issue. 22  Issue Four Venue In his fourth issue, Menard argues the trial court erred when it denied his motion for directed verdict challenging the trial court’s venue. Menard contends that the evidence is legally insufficient to establish proper venue in Jefferson County because the State failed to produce evidence that Kim’s death occurred in Jefferson County, her body was found in Louisiana and the “State’s witness, [Moia] claimed he had no knowledge as to the cause, manner or means of [Kim’s] death.” “[Venue] is not a ‘criminative fact,’ [and] venue is not an ‘element of the offense’ under Texas law.” Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014) (quoting Boyle v. State, 820 S.W.2d 122, 140 (Tex. Crim. App. 1989), overruled on other grounds by Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1989)). “[V]enue is procedurally and substantively different from elements of the offense.” Schmutz, 440 S.W.3d at 31. Lack of venue is not a finding of insufficient evidence of a required element of the offense, and it does not mean that the trial court lacked jurisdiction. Id. (citation omitted) “Although venue must be proven ‘at trial to establish a defendant’s [legal] status,’ that ‘does not convert’ venue into an ‘element[] of the proscribed offense[].’” Id. at 35 (quoting State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998)). Therefore, failure to prove venue at trial does not implicate sufficiency of the evidence, nor does it require acquittal. Id. 23 Moreover, failure to prove venue as alleged in the indictment does not constitute structural or constitutional error. Id. at 36-37. The State bears the burden to prove, by a preponderance of the evidence, that venue is proper in the county in which the case is tried.3 Tex. Code Crim. Proc. Ann. art. 13.17 (repealed eff. Jan. 1, 2025);4 Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Evidence is sufficient to prove venue if “from the evidence the jury may reasonably conclude that the offense was committed in the county alleged.” Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964) (citation omitted). In reviewing a challenge to proof of venue, an appellate court must presume that venue was proven in the trial court unless venue was disputed in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1) (creating venue presumption for criminal cases). Here, because the defendant challenged venue in a motion for directed verdict during the guilt-innocence phase of the trial, the presumption does not apply. See Williams, 2026 Tex. App. LEXIS 4147, at *19. “Instead, we consider the evidence in the light most favorable to the verdict and determine whether a rational finder of fact could have found by a preponderance of the evidence that venue was proper in [Jefferson] County.” Id. (citation omitted). Venue may be established by either direct or circumstantial evidence. See Rippee, We use the provisions of the code in effect at the time of Menard’s trial. 3 Act of January 1, 2025, 88th Leg., R.S., Ch. 765, § 3.001(6), 2023 Tex. Sess. 4 Law Serv. 1976 (for current version see Tex. Code Crim. Proc. Ann. art. 13A.002). 24 384 S.W.2d at 718. “‘The trier of fact may make reasonable inferences from the evidence to decide the issue of venue.’” Hernandez v. State, 198 S.W.3d 257, 268 (Tex. App.—San Antonio 2006, pet. ref’d) (quoting Bordman v. State, 56 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d.)). Here, evidence was presented that Menard and Kim lived in an apartment in Beaumont. Moia and Abbott lived in the same apartment complex. Moia testified that in late November 2024 Menard asked him to help move Kim’s body from Menard’s apartment. Moia observed Kim’s body was wrapped in a tarp in a storage closet in Menard’s Beaumont apartment and testified there was already a smell to the body when it was moved by Menard and Moia. Additionally, even assuming without deciding that venue was improper, Menard was not harmed. He was provided with notice of the venue by the indictment, and he lived in Beaumont; therefore, venue in Jefferson County was not inconvenient for Menard. Nor did Menard argue that venue in Jefferson County would lead to a biased jury pool.5 On this record, we conclude that