Colone v. State
| Decision Date | 08 May 2019 |
| Docket Number | NO. AP-77,073,AP-77,073 |
| Citation | 573 S.W.3d 249 |
| Parties | Joseph Kenneth COLONE, Appellant v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
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.
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.
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."
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, 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.
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.
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.
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...
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