Colone v. State
573 S.W.3d 249
| Tex. Crim. App. | 2019Background
- Defendant (Appellant) was accused of murdering Mary and her daughter Briana; Mary's body found at front door, Briana in backyard; a glove and towel at scene had DNA that could not exclude Appellant. A witness (Fontenot) identified Appellant in a photo array.
- Appellant moved to change venue from Jefferson County, citing prejudicial media coverage; trial judge Walker initially signed an order granting change but did not name a transferee county; no transferee order was entered.
- Judge Walker resigned; successor Judge West reopened/reconsidered venue after voir dire and jury selection; she denied the motion to change venue because publicity had dissipated and jurors were unaware of the case.
- Appellant filed a motion for new trial alleging prosecutorial misconduct and prejudicial publicity (including a press leak from a jailhouse informant); motion included affidavits and a newspaper article; trial court denied the motion without a hearing.
- During jury selection, a juror (Delafosse) was excused as primary caretaker after being accepted; defense received an extra peremptory strike; Appellant lodged a Batson challenge when the State struck an African‑American venireperson (Simmons); court upheld the strike based on race‑neutral reasons.
- State introduced victim Mary’s out‑of‑court statements about an earlier aggravated robbery (to show motive); Appellant objected under hearsay, Confrontation Clause, Rule 403, and due process; court admitted the evidence and the appellate court upheld admission under forfeiture by wrongdoing and relevance for motive.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Jurisdiction to reconsider venue (whether Jefferson County lost jurisdiction after change order) | Walker's order granted transfer to Galveston, so Jefferson lost jurisdiction | Order was ineffective because it named no transferee county; no confirming order sent; case never transferred | Trial court retained jurisdiction; transfer invalid without named transferee; point overruled |
| Denial of change of venue based on pretrial publicity | Publicity was pervasive, prejudicial; fair trial impossible in Jefferson County | Coverage was limited after initial period, objective, jurors selected were unaware; voir dire showed fairness | Denial of venue change was not an abuse of discretion; point overruled |
| Motion for new trial / request for hearing alleging DA misconduct and press leaks | Affidavits and article show DA leaked jailhouse informant statements, tainting jury; requested hearing | Many allegations could/should have been raised earlier at trial; affidavits contained bare assertions without supporting facts | Trial court was not required to hold a hearing; claims untimely or insufficiently factual; points overruled |
| Admission of victim's out‑of‑court statements about prior aggravated robbery (hearsay / Confrontation / Rule 403 / due process) | Statements were hearsay and deprived Appellant of confrontation; prejudicial and not essential (motive not element) | Defendant forfeited confrontation/hearsay objections by wrongdoing (killing victim to silence her); statements relevant to motive and identity; probative value outweighed prejudice | Admission upheld: forfeiture by wrongdoing bars Confrontation/hearsay objection; evidence relevant to motive; Rule 403 and due‑process challenges rejected |
| Batson challenge to peremptory strike of Simmons | Strike was racially motivated (both are African‑American); juror was qualified | State gave race‑neutral reason: juror ambivalent about death penalty despite personal capital‑crime family history; concern about ability to return death verdict | Court accepted race‑neutral reason; Appellant failed to prove pretext; Batson denial affirmed |
| Excusal of juror Delafosse after acceptance | Excusal after defense used strikes prejudiced defendant (lost favored juror) | Court may excuse venireperson who qualifies for statutory exemption; parties given extra peremptory; no right to specific juror | Excusal proper under statute; no reversible harm found |
Key Cases Cited
- Williams v. State, 145 Tex. Crim. 536 (Tex. Ct. Crim. App.) (change‑of‑venue principles regarding transfer effect)
- Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006) (forfeiture by wrongdoing doctrine applied to bar Confrontation Clause challenge)
- Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016) (standards on change of venue and publicity review)
- Batson v. Kentucky, 476 U.S. 79 (1986) (three‑step framework for race‑based peremptory challenge claims)
- Payne v. Tennessee, 501 U.S. 808 (1991) (victim‑impact / prejudice analysis referenced for due‑process argument)