
 Opinion issued September 26, 2002


 








In The
Court of Appeals
For The
First District of Texas



NO. 01-01-01114-CR



VON ODIS AMIE, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 20482



O P I N I O N

	Appellant, Von Odis Amie, pleaded not guilty to aggravated assault on a public
servant.  The jury found appellant guilty of the lesser-included offense of assault on
a public servant and assessed punishment at 75-years imprisonment.  In one point of
error, appellant argues the trial court erred in denying his motion to change venue. 
We affirm.
Background
	Appellant was indicted for the offense of aggravated assault on a correctional
officer with a deadly weapon. (1)  The incident occurred on July 11, 1999, at the Wynne
Unit of the Texas Department of Criminal Justice (TDCJ).  Correctional officer Lance
Waldo testified that he was passing out food trays to inmates, and as he passed
appellant's cell, appellant yelled for Waldo to remove a food tray from his cell.  In the
process of unlocking the food opening on appellant's cell door, Waldo observed a
quick movement in the background.  Immediately, Waldo's  "vision went blurry and
his face was burning real bad." (2)  Waldo then saw appellant jumping around, laughing,
and saying " I got you back, I got you."   As a result of this incident, Waldo suffered
a temporary loss of vision, and first and second degree burns around his nose and
eyes.  
	Appellant filed a pretrial motion to change venue, arguing that there was so
great a prejudice against him in Walker County that a fair and impartial trial was
rendered either impossible or highly unlikely.  A pretrial hearing was held on
appellant's motion to change venue, and the trial court denied the motion. (3)  
Appellant again moved motion to change venue at the conclusion of voir dire, and
that motion was also denied.  The jury found appellant guilty of the lesser-included
offense of assault on a public servant. 
Standard of Review

	We review the denial of a motion to change venue for an abuse of discretion. 
Dewberry v. State, 4 S.W.3d 735, 745-746 (Tex. Crim. App. 1999); see DeBlanc v.
State, 799 S.W.3d 701, 705 (Tex. Crim. App. 1990).   We will not reverse a trial
court's ruling on the motion to change venue if the ruling was within the realm of
reasonableness, given the facts presented to the trial court.  Powell v. State, 898
S.W.2d 821, 826 (Tex. Crim. App. 1994).
Denial of Change of Venue 
	Appellant argues, generally, that an inmate accused of assaulting a (TDCJ)
correctional officer cannot obtain a fair trial by an impartial jury in Walker County,
Texas, due to feelings of kinship and affiliation on the part of Walker County 
residents toward TDCJ and its employees.  Specifically, he alleges there exists in
Walker County a bias against a class of individuals consisting of inmates who assault
TDCJ correctional officers, which causes a presumption against the inmate's
innocence and renders the State's burden of proof in this type of case significantly
lower.  
	The Code of Criminal Procedure provides that:
		[a] change of venue may be granted in any felony or
misdemeanor case punishable by confinement on 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 either of the following causes, 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; and . . . 

Tex. Code Crim. Proc. Ann. art. 31.03(a)(1) (Vernon Supp. 2002).
	A defendant seeking a change of venue bears a heavy burden to prove the
existence of prejudice in the community and that the likelihood of obtaining a fair and
impartial jury is doubtful.  Powell, 898 S.W.2d at 826.  To satisfy this burden, the
defendant must demonstrate an actual, identifiable prejudice on the part of the
members of his jury, and that prejudice has so permeated the community that
prospective jurors' prejudicial opinions cannot be set aside.  Moore v. State, 935
S.W.2d 124, 129 (Tex. Crim. App. 1996).
	Most motions to change venue are based, at least in part, on allegations of
negative pretrial publicity.  As such, most of the decisions that interpret article 31.03
are based upon factual scenarios involving issues of the presence and extent of
pretrial publicity.  Although this case does not involve issues of pretrial publicity, a
review of judicial authority involving issues of pretrial publicity is helpful to provide
a framework for examining the existence of prejudice within the community in this
case. 
	Courts have noted that a change of venue is required only where pretrial
publicity is "so pervasive and prejudicial as to create a reasonable probability that an
impartial jury cannot be impaneled even with the most careful voir dire."  Narvaiz v.
State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992).  Due process does not, however,
require that jurors come completely ignorant of the facts of the case.  Id.; see also Bell
v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996).  In the Penry decision by the Texas
Court of Criminal Appeals, the court held that knowledge of some details of the case
by venire members was acceptable because of assurances from those members that
they could try the case strictly on the evidence.  903 S.W.2d 715, 728 (Tex. Crim.
App. 1995).  The Penry court, while examining the extent of pretrial publicity, also
reviewed testimony suggesting that Walker County jurors were prejudiced against
defendants because of their affiliation with the TDCJ.  Id. at 727.  In the court's
analysis, the focus was on evaluating the presence of prejudice in the community; the
sources of the alleged prejudice in that decision were not distinguished.  Id.  Other
courts have also recognized that the extent of pretrial publicity is not the only factor
that should be used to examine the existence of prejudice.  Any factors present that
are likely to affect the candor and veracity of prospective jurors are also considered. 
Henley v. State, 576 S.W.2d 66, 72 (Tex. Crim. App. 1972). 
	A common thread among the analyses of the courts listed above is that actual
prejudice, regardless of its source, must be shown by the defendant to succeed on a
motion to change venue.  We adopt this as a guiding principle in our analysis.  We
now review the evidence presented by appellant and will reverse only if we find that
the trial court's decision was not within "the realm of reasonableness."  Powell, 898
S.W.2d at 826.
	At the pretrial hearing on the motion to change venue, appellant presented three
witnesses to support his motion.  Hal Ridley, a 20-year resident of Walker County and
an attorney, testified that appellant would have an "uphill battle" because of the
general makeup of the Walker County jury.  Donald Kraemer, a 30-year resident and
former deputy district attorney, testified that appellant would not be able to obtain a
fair and impartial trial.  Scott Bounds, a 20-year resident of Walker County and
former Huntsville city attorney, testified that he did not believe appellant could obtain
a fair trial.  Appellant's counsel testified that it would be impossible for Walker
County jurors to be fair in this type of case.  The testimony from all of the appellant's
witnesses was based upon the proposition that, because of Walker County residents'
direct and indirect affiliations with the TDCJ, and because of TDCJ's influence in the
community, an unfair prejudice would exist that warranted a change in venue.
	The State presented the testimony of A.P. Merillat, an investigator for the
Special Prosecution Unit in Walker County, who stated that he had experience with
95 jury trials throughout the state, and he had no doubt that appellant could obtain a
fair and impartial trial in Walker County.  Merillat also testified that he was familiar
with Walker County criminal trials where defendants were found not guilty.  Merillat
also testified about instances where guards were indicted and prosecuted for crimes
within Walker County.  Manny Price testified for the State that he had traveled
extensively through counties all over the United States and saw no reason why
appellant could not get a fair trial in Walker County, noting that Walker County
residents were a little too liberal for his taste. 
	Based upon the record, we are unable to find that appellant has met his heavy
burden of showing an actual and identifiable prejudice, as required by Moore, that
cannot be set aside.  We note that the Texas Court of Criminal Appeals reviewed
similar testimony from Hal Ridley in the Penry decision, wherein Ridley not only
stated that the jurors would be prejudiced because of their affiliation with theTDCJ,
but also because of the negative pretrial publicity in that case.  Penry, 903 S.W.2d at
727.  Here, we do not have testimony of negative pretrial publicity, and, as in Penry,
we have no evidence of actual and identifiable prejudice that cannot be set aside. 
Upon review of the testimony presented to the trial court, including testimony
regarding instances where defendants were found not guilty of criminal offenses, and
where TDCJ personnel were indicted and prosecuted within the county, we conclude
that the trial court did not act outside of the realm of reasonableness when it found
no permeating prejudice and denied appellant's  motion for a change of venue.
	Appellant also asserts that the voir dire conducted in this case demonstrates
evidence of prejudice within Walker County, and complains in particular that at least
one objectionable venire member remained on the jury after the challenges for cause
and peremptory strikes were exercised. (4) 
	Appellant elicited testimony from the venire member that he knew of two
potential witnesses for the State and had already formed an opinion about whether or
not they were credible.  However, the venire member later stated that he could be fair
and impartial.  After the conclusion of voir dire, the trial court again denied
appellant's motion to change venue.  The testimony of the venire member in this case
is inconclusive at best and does not establish that residents of Walker County have
a prejudice against appellant.  
	Upon review of the voir dire record, we find no clear evidence of an actual and
identifiable prejudice permeating Walker County residents, which could not be set
aside.  We analogize to the Penry decision in which the court, in its examination of
the motion to change venue, noted that some venire members had some previous
knowledge of the facts of the case, but were still acceptable in light of their
assurances that they could try the case strictly by the evidence.  Penry, 903 S.W.2d
at 728.  Here, while some jurors selected to try the case may have known of persons
employed by TDCJ, all 12 of them were among the voir dire panel that indicated to
the trial court that it could be fair and impartial. 
	We find that the evidence presented by appellant of the existence of prejudice
against TDCJ inmates, including the testimony of the venire member, does not
establish actual and identifiable prejudice to the extent that the trial court's decision
was beyond the realm of reasonableness.  As such, we hold that the trial court did not
abuse its discretion in denying appellant's motion to change venue.
	We overrule appellant's sole point of error.Conclusion
	We affirm the judgment of the trial court.

 
							Sherry J. Radack
							Justice

Panel consists of Justices Nuchia, Jennings, and Radack.
Publish.  Tex. R. App. P. 47.
1. 	The deadly weapon was hot liquid.
2. 	Waldo later learned the substance thrown in his face was a mixture of hot
syrup and water.
3. 	The judge who overruled the motion found the jurors of Walker County, Texas,
held a higher respect for the laws of God and man than they do the institution
of Texas Department of Criminal Justice (TDCJ).

4. 	As appellant's sole point of error in this case complains of the trial court's 
	denial of his motion to change venue, we will not discuss the
	appropriateness of the trial court's denial of any challenges for cause.
