Pitonyak v. State

• Decision Date: 27 March 2008
• Docket Number: No. 03-07-00131-CR.,03-07-00131-CR.
• Parties: Colton Aaron PITONYAK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

253 S.W.3d 834

Colton Aaron PITONYAK, Appellant, v. The STATE of Texas, Appellee.

No. 03-07-00131-CR.

Court of Appeals of Texas, Austin.

March 27, 2008.

Rehearing Overruled April 25, 2008.

Joseph A. Turner, Law Office of Joseph A. Turner, Austin, TX, for Appellant.

C. Bryan Case Jr., Assistant District Attorney, Austin, TX, for State.

Before Justices PATTERSON, PURYEAR and HENSON.

OPINION

DAVID PURYEAR, Justice.

A jury found appellant Colton Aaron Pitonyak guilty of murder and assessed a fifty-five-year prison term. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). In five points of error, appellant contends that: (1) the evidence is legally and factually insufficient to sustain the guilty verdict, (2) the trial court erred by refusing to instruct the jury on the lesser included offenses of manslaughter and criminally negligent homicide, (3) the trial court erred by overruling appellant's motion to suppress evidence, (4) his trial counsel rendered ineffective assistance, and (5) the trial court erred by failing to conduct an inquiry into appellant's competence to stand trial. We will overrule these points of error and affirm the judgment of conviction.

BACKGROUND

The disappearance of Jennifer Cave

On Thursday, August 18, 2005, Sharon Cave and Jim Sedwick drove to Austin from their home in Corpus Christi to look for Sharon's daughter, Jennifer Cave. Jennifer, who was twenty-one years old, had been living in Austin for about two years. Sharon and Jennifer were very close, and they spoke to each other by telephone daily, often several times. On Monday, August 15, Jennifer had told her mother that she was going to interview the next day for a part-time job at an Austin law firm. On Tuesday, Jennifer called Sharon to tell her that she had gotten the job. Later that same day, Jennifer called again to say that she had been offered full-time employment at the firm. Sharon testified that Jennifer was extremely excited by the prospect of this new job. Jennifer and Sharon spoke again at 8:30 p.m. Tuesday night. Jennifer was at the apartment she shared with Denise Winterbottom, doing laundry and preparing herself for the next day, which was to be her first full day at the law firm. Still excited about the new job, Jennifer told her mother that she was going to wear the new pants suit that Sharon had recently bought for her. This was Sharon's last conversation with Jennifer.

On Wednesday afternoon, August 17, Sharon received a telephone call at her office from William Thompson, one of the attorneys at the law firm that had employed Jennifer. Thompson asked Sharon if she had spoken to Jennifer that day. When Sharon said that she had not, Thompson told her that Jennifer had not come to work that day and that she was not answering her telephone. Someone from the firm had also gone to Jennifer's apartment, but she was not there. Sharon immediately began calling Jennifer's cell phone, but all of her calls went "straight to her voicemail." Believing that Jennifer had merely misplaced her phone but nevertheless worried, Sharon called her cell phone service provider. From the telephone company, she obtained a list of the numbers that had called or been called from Jennifer's phone, starting with Jennifer's last call at 1:08 a.m. on Wednesday and going back several hours. Sharon then began calling the numbers that appeared on the list most frequently, hoping to find someone who might know Jennifer's whereabouts.

One of the numbers Sharon called belonged to Michael Rodriguez. Rodriguez testified that he had spoken to Jennifer by telephone three times on Tuesday night and Wednesday morning. In the first call, at 10:30 Tuesday night, Jennifer told Rodriguez that she was going to "hang out" with a friend named Colton, who Rodriguez did not know. In a second call around midnight, Jennifer said that Colton was "upset." In the third call, at 1:00 a.m., Jennifer told Rodriguez that Colton was upset because he had lost his cell phone, that he had tried to break out the window of a parked car, and that he was at that moment urinating on another vehicle. Rodriguez testified that Jennifer "didn't sound like she was in trouble or anything," and that he "assumed he [Colton] was just intoxicated and doing something stupid."

Sharon reached Rodriguez on her office telephone. While she was speaking to Rodriguez, appellant, who she had also been attempting to reach, called her cell phone. Sharon testified, "I asked him [appellant] if he had seen Jennifer, if he had talked to Jennifer, and he said no. Mr. Rodriguez said, `That's not true. She was with him.' So I had two phone conversations going at the same time." When Sharon told appellant that she was "on the phone with somebody that says she was with you," appellant acknowledged that he had seen Jennifer downtown but claimed that he did not know where she now was. Sharon testified, "Michael was still on the phone and Michael just said he is lying. He was with her last night. He is lying." After speaking to Rodriguez and appellant, Sharon called Jennifer's roommate. Winterbottom told Sharon that when she went to bed on Tuesday night, Jennifer had been washing clothes at the apartment, but when she awoke on Wednesday morning, Jennifer was gone.

Sharon began to call "places in Austin, hospitals. I think I even called the morgue. And I couldn't find anything, so I called the police station." The person she spoke to at the Austin police department told her that Jennifer had not been missing long enough to file a missing persons report. He did open a case file and gave Sharon the number. Sharon gave the police the license plate number of Jennifer's car and other personal information about her daughter.

By this time, it was about 5:00 p.m. on Wednesday afternoon. Sharon called Sedwick at his work and told him "there is something very wrong. There is something wrong with Jennifer." Sharon and Sedwick met at their home, and they continued to make telephone calls in an attempt to find someone who might have seen or spoken to Jennifer. One of the persons Sedwick called was appellant, who did not answer. Sedwick left a "stern" message telling appellant to "call us back, we are looking for Jennifer." At about 7:30 p.m., appellant returned the call. Sharon answered. She testified, "I said, Colton, please, do you know anything about Jennifer, and he said, dude, I'm eating pizza with my friends. Leave me alone. I don't know where she's at." Then he hung up.

Appellant was not a total stranger to Sharon and Sedwick. Sharon testified that Jennifer had spoken to her about appellant soon after she moved to Austin. Sharon said that she later learned that Jennifer and appellant were using drugs. She testified that she spoke to Jennifer about this and that Jennifer seemed to listen. Sharon was asked if she had suspected that Jennifer's failure to show up for work on August 17 was the result of "a bad bout with alcohol or drugs." She replied, "No, I did not think that that was the problem. She was too excited about her new job."

On Thursday morning, August 18, Sharon and Sedwick called the Austin police and spoke to Detective Kathleen Hector in the missing persons office. Sharon told Hector all that had happened the previous day, including Jennifer's failure to appear for work and Sharon's fruitless attempt to locate her. Sharon also gave the detective the names and numbers of the people she had called. Hector assured Sharon that the police would "check it out" and would "look for her license and see if there was anything like that, if her car was in the impound lot or anything like that." Sharon and Sedwick then decided to drive to Austin to continue their search for Jennifer.

Sharon and Sedwick left Corpus Christi at 11:00 a.m. on Thursday morning. When they were near San Antonio, Hector called Sharon on her cell phone to report that Jennifer's car had been found at 2529 Rio Grande, near the University of Texas campus.¹ Hector told Sharon that appellant lived at that address, in apartment 88. When Sharon and Sedwick arrived in Austin at about 4:00 p.m., they immediately drove to 2529 Rio Grande. They were met there by Sharon's daughter Vanessa, who had driven to Austin from her home in Dallas to help look for her sister Jennifer. 2529 Rio Grande is a large condominium complex called the Orange Tree. They found Jennifer's car parked in the street and appellant's apartment on the second floor. Hector's business card was on both the car and the apartment door. Sharon and Sedwick found nothing unusual at apartment 88. They knocked on the door and windows, calling out Jennifer's name, but there was no response. After about an hour, they left the Orange Tree and went to a hotel. Sharon, who had a spare key, drove Jennifer's car to the hotel. She hoped that if Jennifer "came out and saw that her car was missing, that the first thing she would do is call me or call the police."

While at the hotel, Sharon called directory assistance for Arkansas. She had learned during a telephone conversation with one of Jennifer's friends that appellant was from Arkansas, and she had seen a car with Arkansas license plates at the Orange Tree. Sharon managed to reach appellant's father. She testified, "I told him that my daughter was missing and that I was looking for her and that the last person that we thought she was with was Colton." According to Sharon, appellant's father told her that "Colton had called and asked if he could take Jennifer to dinner and use his mother's credit card. And so it confirmed that he and Jennifer had been somewhere on Tuesday night."

Sharon and Sedwick decided to return to the Orange Tree. Fearing that she had made a mistake by moving Jennifer's car, Sharon drove it back and parked it where she had found it. Joined by Vanessa and a friend, Sharon and Sedwick knocked on appellant's door but got no response. Although Sharon had been told by Hector that there was nothing the police could...