Sven Erik Johansson v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00221-CR
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SVEN ERIK JOHANSSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 10205
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MEMORANDUM OPINION
A jury convicted Sven Erik Johansson of aggravated assault with a deadly
weapon and assessed punishment at four years of confinement. Johansson appeals
from the trial court’s judgment revoking his shock community supervision and
imposing sentence. In his sole appellate issue, Johansson contends the trial court
erred by denying his motion for change of venue, which he filed after his
conviction but prior to revocation of his shock community supervision. We affirm
the trial court’s judgment.
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BACKGROUND
A jury convicted Johansson of aggravated assault with a deadly weapon. In
accordance with the jury’s verdict as to both guilt-innocence and punishment, the
trial court signed a judgment which assessed punishment at four years of
confinement. After a few months of confinement, the trial court ordered Johansson
returned from TDCJ and placed him on shock community supervision for four
years. Subsequently, the State filed a motion to revoke Johansson’s community
supervision.
Two days before the hearing on the State’s motion to revoke, Johansson
filed a motion for change of venue, in which he alleged that the judicial system as a
whole is prejudiced against him such that he cannot receive a fair trial in Tyler
County. The motion was not verified, and Johansson did not include any affidavits
with his motion. The trial court denied Johansson’s motion for change of venue,
conducted an evidentiary hearing, found the allegations in the State’s motion to
revoke to be true, revoked Johansson’s shock community supervision, and assessed
punishment at four years of confinement in TDCJ.
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ISSUE ONE
In his sole appellate issue, Johansson challenges the trial court’s denial of his
motion for change of venue. Article 31.03 of the Texas Code of Criminal
Procedure provides as follows, in pertinent part:
(a) the written motion of the defendant, supported by his own
affidavit and the affidavit of at least two credible persons, residents of
the county where the prosecution is instituted, for . . . the following
cause[], the truth and sufficiency of which the court shall determine:
1. That there exists in the county where the prosecution is
commenced so great a prejudice against him that he cannot obtain a
fair and impartial trial[.]
Tex. Code Crim. Proc. Ann. art. 31.03(a)(1) (West 2006) (emphasis added). In his
brief, Johansson concedes that he did not include the affidavits of two credible
Tyler County residents, but he argues that his ability to obtain the two required
affidavits demonstrates the truth of the allegations in his motion. Johansson cites
no authority for this proposition.
We review a trial court’s ruling on motions for change of venue under an
abuse of discretion standard. Dewberry v. State, 4 S.W.3d 735, 744 (Tex. Crim.
App. 1999). Omission of the statutorily-required affidavits required renders a
motion for change of venue fatally defective. Brooks v. State, 418 S.W.2d 835, 836
(Tex. Crim. App. 1967) (op. on reh’g). A trial court does not abuse its discretion
when it denies a motion for change of venue that does not meet the statutory
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requirements. Christopher v. State, 489 S.W.2d 573, 574 (Tex. Crim. App. 1973);
Cover v. State, 913 S.W.2d 611, 616 (Tex. App.—Tyler 1995, pet. ref’d). We
therefore conclude that the trial court did not abuse its discretion by denying
Johansson’s motion for change of venue. See Christopher, 489 S.W.2d at 574;
Brooks, 418 S.W.2d at 836; Cover, 913 S.W.2d at 616. Accordingly, we overrule
issue one and affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on April 1, 2015
Opinion Delivered April 22, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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