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Colone v. State

Court of Criminal Appeals of Texas

May 8, 2019




          KELLER, P.J.

         Appellant was convicted of capital murder for killing two individuals during the same criminal transaction.[1] The jury answered the special issues in such a manner that Appellant was sentenced to death.[2] Direct appeal to this Court is automatic.[3] Appellant raises twelve points of error. Finding no reversible error, we affirm the trial court's judgment and sentence.

         I. BACKGROUND

         While investigating an aggravated robbery in July of 2010, Beaumont Police Officer Jesus Tamayo talked to Mary Goodman. Mary said that she wanted to talk about what she had seen but expressed fear of the person who committed the crime. After being assured that typically nothing happens to witnesses, Mary identified Appellant by name as the person who committed the crime. She also picked his photo out of a photo lineup.

         Appellant was subsequently arrested and released on bond. On July 29, 2010, he was indicted for two counts of aggravated robbery. Two days later, Mary's boyfriend, Robert Fontenot, saw a man confront Mary at her home. The man's face was covered-possibly by a ski mask-so that only the eyes could be seen, and he had a blue towel wrapped around one of his hands. The man appeared to be angry with Mary and accused her of "telling on him." At some point during this confrontation, the man walked to the living room, drew and pointed a gun at Mary's daughter Briana, and fired two shots. Fontenot pushed Mary and told her to "run." Fontenot then ran through a hallway, jumped out the back window, ran through the backyard, and jumped over a fence.

         After running to some tennis courts to try to find someone with a phone, Fontenot spotted a patrol unit. He flagged down the police officer and told him a shooting was occurring. Police officers went to Mary's home and discovered that Mary and Briana were dead. Mary's body was found in the front doorway, and Briana's body was found in the back yard. A dark knit glove was found lying just outside the doorway to the bathroom, and a blue towel was found outside the home.

         Fontenot later identified Appellant in a photo array.[4] DNA analysis showed that Appellant could not be excluded as a contributor to DNA found on the glove and the blue towel.

         II. VENUE

         A. Trial Proceedings

         1. Initial Hearing

         Appellant filed a motion for change of venue due to media coverage of the case. The motion requested that the case be transferred to Galveston County. A hearing was held in May 2013 before Judge Layne Walker. The defense presented three witnesses who testified that there were numerous media stories describing Appellant as dangerous. The defense witnesses believed that Appellant would be more likely to receive a fair trial if the case were moved outside of Jefferson County. One of those witnesses also testified that the pretrial publicity in the community would prevent Appellant from getting a fair trial.[5]

         The State presented four witnesses-a local television news reporter, the county tax assessor, the Chief Deputy District Clerk, and a prosecutor. The news reporter did not recall the case or any media coverage surrounding it. She testified that, in her opinion, if the television station had covered it a lot, she would remember it. The tax assessor testified that he had not heard of the case and that it had not been a topic in any of the conversations he had been privy to. The Chief Deputy District Clerk testified that she was a "news junky" but did not recall the case or any conversations about the case. She further stated that no one in the clerk's office "was even aware of who that was." The prosecutor had been involved in many capital cases and was familiar with Appellant's case. He testified that "for the type of case that it is, it's gotten less press than what I would normally see in a case of this magnitude."

         2. Transfer Order

Judge Walker took the venue issue under advisement and said that he would announce his decision in a signed order. On July 29, 2013, he signed an order purporting to grant the motion to change venue without committing to where the case would be transferred:
The Court therefore hereby grants Defendant's Motion for Change of Venue. Venue in this case shall be transferred to a county outside of Jefferson County to be determined by the Court after consultation with counsel herein and review of available venues.

         In October 2013, an email from the District Clerk of Galveston County to a staff person at a Jefferson County email address was forwarded to Judge Walker about Appellant's case. The email began with the statement, "Thank you for taking our call this morning. Please allow this email to confirm the issues we discussed and the questions we still have." The first item of confirmation was, "It is our understanding that the Judge will enter an order which confirms that this case is a change of venue to Galveston County according to Article 31.09 of the Code of Criminal Procedure."[6] The email also asked several questions about how the judge wanted voir dire proceedings to be handled.

         3. Reconsideration Hearing

         Judge Walker resigned his bench and Judge Raquel West was sworn in as his replacement. The State filed a motion to reconsider the venue change, and in May of 2015, Judge West held a hearing on that motion. The State called April McKinnon, the archivist for the Beaumont Enterprise newspaper. McKinnon testified that Appellant's case had been mentioned in only three articles in the paper since May of 2013: (1) an article reporting that his case had been moved out of Jefferson County, (2) an article mentioning the case in connection with Judge Walker resigning, and (3) an opinion piece relating to the death penalty that, on the second page, mentioned Appellant as an accused facing the possibility of the death penalty. McKinnon further testified that the newspaper coverage appeared to be accurate and objective. On cross-examination, McKinnon admitted that, from 2010-2011, the newspaper had published twenty-five articles on Appellant's case.

         The State also called Scott Lawrence, director and executive producer at a local television station. Lawrence testified that television coverage of Appellant's case was extensive during the first week to ten days after the crime, but "tapered off dramatically," and that in the years following the first couple of weeks after the event, "the coverage was extremely, extremely minimal." There were five times Appellant's case was mentioned on the television station in 2013 and no mention of Appellant's case after that time. He also testified that the television coverage was objective, emphasizing "just the facts," and was not inflammatory. Any reference to "armed and dangerous" was a statement attributed to the police and not offered as truth by the media outlet, and such statements were made when Appellant had not yet been arrested and was still at large. In Lawrence's opinion, the coverage of Appellant's case was "not unlike coverage that we've covered of countless murders that have occurred in Beaumont and countless crimes in the area," and, in his thirty-four years in the area, "this crime pales in comparison in terms of the coverage" to some of the prominent murder stories the station had covered. Lawrence stated that, taking into account the five year period from 2010 until the date of the hearing, Appellant's case "is not a story that is prominently recalled by the people in this area."

         Judge West ruled that she could reconsider the issue of venue, but she reserved her ruling on the merits of the venue issue until after jury selection.

         4. Jury Selection

         The venire panel consisted of 120 prospective jurors. These jurors were selected through the I-Jury system, making the venire a general venire rather than a special venire. On the first day the venire was gathered, the trial judge agreed to inform the prospective jurors to avoid news for two days. During general voir dire, the prosecutor told the jurors to indicate in a written questionnaire whether they were familiar with or had heard anything about the case. The prosecutor also admonished the prospective jurors to base their verdict on the evidence presented in court and not on news stories that may have been heard outside of court. A written jury questionnaire included questions on whether the prospective jurors had seen or heard anything about the case and on whether they had formed any opinions as to the guilt or innocence of the defendant. None of the people selected as jurors or alternates had any knowledge about the case, nor did any of these people indicate that they were influenced by news coverage.

         After jury selection, Judge West revisited the venue issue. She granted the State's motion to reconsider and reopen the motion to change venue. She then offered to allow the parties to present further evidence and argument on the motion. The parties briefly presented argument. The defense argument was that Judge Walker had already changed venue and that Judge West should not have even held the hearing on the motion to reconsider in Jefferson County. After the parties' arguments, the judge remarked that none of the prospective jurors were dismissed based on information that they had learned about the case and stated, "I think that speaks volumes as far as the fact that we can have a fair trial and a fair jury here." The judge then denied the motion to change venue.

         B. Analysis

         1. Decision to Reconsider Venue Transfer

         In point of error one, Appellant contends that the trial court lacked jurisdiction to reconsider the previous ruling granting the motion to change venue. He contends that venue was transferred to Galveston County, and once that occurred, the Jefferson County court lost jurisdiction to transfer the case back. The State contends that the Jefferson County court did not lose jurisdiction because the case had not been transferred to another court. According to the State, the failure to name a transferee court meant that the order granting a venue transfer was merely preliminary and subject to revision. Otherwise, the State contends, an order purporting to grant a transfer that fails to specify a transferee court would have the absurd result of putting the case in legal limbo, without any court having jurisdiction over the case. We agree with the State.

         In Williams v. State, we recognized that the effect of a change of venue is to "remove the cause absolutely from the jurisdiction of the court awarding the change" and to "clothe[] the court to which removal is had with the same jurisdiction that reposed prior to the change in the court of original venue."[7] However, we held that a trial court could rescind an order changing venue where "no steps had been taken to carry out or to comply with the order changing venue" and the record reflects that the order was "improperly" entered.[8] The order in Williams had specified that venue would be changed from Bowie County to Red River County.[9]

          The present case involves even less action with respect to changing venue than what occurred in Williams. The venue transfer order here did not even specify a transferee county; to the contrary, the order explicitly reserved the determination of a transferee county for a later time. Having failed to name a transferee county, the order could not, by itself, be effective in transferring venue. Appellant points to an email as confirming that the transferee county is Galveston. But the email was not from the judge, and it stated the expectation that the judge would enter an order confirming Galveston as the transferee county. No such confirming order was ever entered, so the case was never transferred to Galveston County. Point of error one is overruled.

         2. Decision to Retain Venue

         In point of error two, Appellant contends that the trial court abused its discretion by retaining the case in Jefferson County. He contends that media coverage was so extensive and prejudicial that he could not have a fair trial in Jefferson County. Statute provides for a change of venue, on the basis of prejudicial publicity, if "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."[10] A defendant seeking a change of venue must show that the publicity was "pervasive, prejudicial and inflammatory."[11]"Widespread publicity alone is not inherently prejudicial."[12] News stories that are accurate and objective are generally not considered to be prejudicial or inflammatory.[13] A trial court may use the jury selection process to help gauge the community climate.[14] A trial court's ruling on a motion for change of venue is reviewed for abuse of discretion.[15]

         Although there was initially a significant amount of media coverage of the incident giving rise to Appellant's prosecution, coverage soon dropped off dramatically and was sparse in the following years. There was testimony that Appellant's case was not widely known or prominently recalled in the county and that the publicity was less than typical for the type of case involved. There was also testimony that any references to Appellant being "armed and dangerous" were when he was still at large and were always identified as statements made by the police and not as opinions of the media outlet. And there was testimony that the media reporting was accurate and objective. Finally, pretrial publicity did not appear to have any adverse effect on the selection of jurors, and the jurors that were selected were unaware of the case. The trial court did not abuse its discretion in denying the motion for change of venue. Point of error two is overruled.


         A. The Motion

         Appellant filed a motion for new trial alleging that the District Attorney engaged in violations of statute and due process by creating, or "willfully turn[ing] a blind eye" to, publicity surrounding the case. The motion alleged the following:

1) The provisions of Article 31.03(a) 2 of the Texas Code of Criminal Procedure, the right to due process and due course of law and the Movant's fair trial rights under both the federal and state constitutions were violated when the District Attorney clearly conspired to determine that the Movant Colone did not receive a fair trial in Jefferson County. The District Attorney's actions in both leaking information to the press on the opening day of trial via an untruthful jailhouse snitch under the Sheriff's control and in seeking to keep the case in Jefferson County so as to unfairly poison the jury pool during trial accomplished just that. Based upon the control over the jailhouse snitch that the District Attorney had, either they encouraged or directed the release of this information, or turned a willfully blind eye to it coming out in the press at the start of the trial. This was a dangerous combination that deprived the defendant of his essential rights.
2)The District Attorney's introduction of unfair pre-trial publicity on the day of the opening of trial were clearly an effort to violate the provisions of Article 31.03 (a) 1, and Mr. Colone's rights to a fair jury trial, due process and due course of law under both the Federal and Texas State Constitutions . . . regarding alleged threats to security of the jurors and the court in the local paper, which news items could have only come from the District Attorney. These actions were clearly designed to foster anger, fear, and create an atmosphere that would make a fair trial impossible.
3)Mr. Colone's rights to a fair jury trial, due process and due course of law under both the Federal and Texas State Constitutions were violated when the District Attorney deliberately tried to intimidate the jury by planting false stories in the press. Since they had determined their jailhouse snitch was not a credible enough source to subject to cross examination, the District Attorney's office then decided to offer his testimony via the press without exposing him to any testing. Such carefully leaked items were designed to guarantee a frightened jury which would be distracted from their duty to provide a fair and equitable trial or sentence of death to Mr. Colone.
4)The harm: These actions by the District Attorney directly affected jury selection. They directly affected jury deliberations on the question of future dangerousness when the jury determined punishment. They directly impacted their determination regarding mitigation. They directly contributed to an improper verdict and unjust sentence of death.

         The motion contained a "prayer for hearing and relief" that asked the trial court to "set this matter for a hearing, permit evidence and testimony to be taken to develop this record," and to reverse the judgment of conviction and grant a change of venue. On the same page as the prayer, the motion contained a "certificate of presentment" that was signed by the trial judge. The motion also contained an order setting a hearing, which was not filled in and, on the same page, an order granting or denying the motion, with the trial judge circling the "DENIES" option and writing "Denied" in blank lines in the order.

         The motion attached a news article and two affidavits from Appellant's attorneys to substantiate its allegations. The news article was titled, "Court receives threats as capital murder trial jury selection goes on." The affidavits set out three reasons for granting a new trial: (1) that the judge who signed an order authorizing the search of a cell phone or cell tower information later became the District Attorney and benefitted from the prior order, [16] (2) that the trial court reversed the initial granting of a change of venue, and (3) that a news article appeared "on the first day of trial, March 20, 2017" that referred to threats made against the court, judge, and staff, that this news article was the result of a leak by the District Attorney to the press, and that the information was from a jailhouse snitch who lacked credibility.

         Regarding the newspaper article and the third allegation in the attorneys' affidavits, we observe that March 20th was the start of general voir dire. The judge's ruling on the motion to change venue occurred a month later, on April 20th. Appellant did not raise this newspaper article at the April 20th hearing.

         In connection with the first allegation, the affidavits alleged that the order allowing the search was unconstitutional. One of the affidavits acknowledged that "the prosecution backed away from directly using" the information but alleged, parenthetically and without specifying how or when, that the prosecution indirectly referred to the order. Defense counsel's affidavit also alleged that the order itself was "substantive evidence of wrong doing." At the April 20th hearing, the parties addressed some other matters aside from the motion to change venue, one of which included Appellant's motion to suppress the cell-phone information. The prosecutor said that he did not intend to bring up the cell-phone information in opening statement and would not bring it up through testimony without having a hearing on it first. One of the defense attorneys stated that he was satisfied with "holding off on hearing that motion right now." The defense never claimed at the April 20th hearing that the District Attorney committed misconduct in connection with the order for obtaining cell-phone information or that this had some relevance to the integrity of the jury.

         With respect to the second allegation, one of the affidavits alleged that the twelfth juror seated knew Appellant and that this juror pointed defense counsel out to the rest of the jurors and laughed. The affidavit claimed that this juror was number twelve only because prospective juror Delafosse was excused over defense objection, and the affidavit proffered as a guess that Delafosse "spent more time at work during the trial than he spent at home." This affidavit also complained that another prospective juror was excused "simply because she was pregnant and due in June, an entire month post trial." Both affidavits complained that the defense tried to reach a plea deal "that was clearly going to be out of reach because the District Attorney made the decision to seek death based upon political considerations rather than a fair and objective evaluation of the case and the facts," but the attorneys stated that the District Attorney did offer a plea deal-a guilty plea in exchange for a life sentence. The attorneys concluded that this offer suggested that the District Attorney did not think that Appellant's case was death worthy. None of this information was proffered at the April 20th hearing, and the affidavit that talks about the twelfth juror does not contend that that information was newly-discovered after trial.

         B. Analysis

         In points of error seven and eight, Appellant complains that the trial court erred in failing to hold a hearing on his motion for new trial. He contends that affidavits from his defense attorneys showed "a powerful combination of influential people being present in the county who had determined the Appellant should die." He also contends that the affidavits show "due process violations by the District Attorney's office to spread misinformation and intimidate potential jurors."

         The State contends that Appellant did not request a hearing on his motion for new trial and that Appellant "must do more than file a document labeled a "Certificate of Presentment." We think Appellant has done more here.

         The State is correct that the mere filing of a "certificate of presentment" will not suffice to establish that a motion for new trial and request for a hearing has been presented to the trial court. But here, the trial court signed the certificate of presentment included in the motion for new trial, acknowledging his receipt of the document, and the motion for new trial included a request for a hearing. By denying the motion for new trial, the judge denied the request for a hearing that was included in the motion.

         However, Appellant has run afoul of a different error-preservation principle. A defendant may not raise a matter for the first time in a motion for new trial if he had the opportunity to raise it at trial.[17] By the time of the April 20th hearing, occurring after jury selection, the defense appears to have been aware of matters relating to the cell-phone data search, plea negotiations, the selection of jurors, and the reconsideration of the motion to change venue. The newspaper article to which Appellant refers had been published a month before. The affidavit describing the conduct of the twelfth juror does not say that this conduct came to the attorney's attention only after trial (or how that would have occurred) and, it would appear, along with other matters discussed in the affidavit, to be an event observed ...

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