Colone, Joseph Kenneth ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,538-01
EX PARTE JOSEPH COLONE, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 10-10213-A
IN THE 252ND DISTRICT COURT
JEFFERSON COUNTY
Per curiam. YEARY and SLAUGHTER, JJ., dissented.
OPINION
We have before us a postconviction application for a writ of habeas corpus filed
pursuant to Texas Code of Criminal Procedure Article 11.071.1
In May 2017, a jury convicted Applicant of capital murder, murder of more than
one person during the same criminal transaction. TEX. PENAL CODE § 19.03(a)(7)(A).
The jury answered the special issues submitted pursuant to Article 37.071 and the trial
court, accordingly, set punishment at death. This Court affirmed Applicant’s conviction
1
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal
Procedure.
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and sentence on direct appeal. Colone v. State, 573 S.W.3d 249 (Tex. Crim. App. 2019).
As we noted in our opinion on direct appeal, the State’s case against Applicant included
evidence that police investigators found a “dark knit glove” and a “blue towel” at the
crime scene. Id. at 253. DNA analysis by the DPS Crime Laboratory showed that
Applicant “could not be excluded as a contributor to DNA found on the glove and blue
towel.” Id. at 253–54.
In June 2019, Applicant filed his initial postconviction application for a writ of
habeas corpus under Article 11.071. Among many other claims, Applicant claimed that
the State suppressed material evidence showing that the DPS Crime Laboratory had
mishandled the glove and towel prior to their being subjected to DNA testing. See Brady
v. Maryland, 373 U.S. 83, 87 (1963) (holding that the suppression of material defense-
favorable evidence by the prosecution, even if unintentional, violates due process). He
also claimed that, whether knowingly or unknowingly, one of the DPS analysts who
testified at trial gave the jury a false impression when he suggested that there was nothing
“awry” with the manner in which DPS handled the glove and towel. See Ex parte
Chabot, 300 S.W.3d 768, 770–71 (Tex. Crim. App. 2009) (holding that due process is
violated when the State knowingly or unknowingly uses materially false testimony to
obtain a conviction).
Applicant and the State deposed various witnesses and offered the habeas court
numerous exhibits in an effort to develop the facts necessary to resolve Applicant’s Brady
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and Chabot claims. In March 2021, the parties jointly submitted agreed findings of fact
and conclusions of law that, if adopted, would counsel in favor of relief on Applicant’s
Brady and Chabot claims. In July 2021, the habeas court adopted the parties’ agreed
findings of fact and conclusions of law. The habeas court forwarded those findings and
conclusions to this Court in August 2021, duly recommending that this Court grant
Applicant relief on the basis of his Brady and Chabot claims.2
Deferring where appropriate to the habeas court’s findings of historical fact and
credibility determinations, and based upon this Court’s own independent review of the
record, we agree with the habeas court that relief is warranted in this case. Therefore,
relief is granted. Brady, 373 U.S. at 87; Chabot, 300 S.W.3d at 770–71. The judgment of
conviction in Case No. 10-10213 in the 252nd District Court of Jefferson County, Texas,
is set aside. Applicant is remanded to the custody of the Sheriff of Jefferson County to
answer the charges as set out in the indictment.
Delivered: March 2, 2022
2
In Ex parte Roark, No. WR-56,380-03, __ S.W.3d __, (Tex. Crim. App. Sept. 15,
2021), we said that “[g]enerally, all of an applicant’s claims should be fully developed and ready
to be resolved” when a habeas record is transmitted to this Court. Slip op. at 2. However, our
use of the word “[g]enerally” shows that this rule is not inflexible. The record in Roark was
inadequate to resolve the issues that that case presented. That is not the situation here. In the
interests of justice and judicial economy, we retain the discretion to dispose of habeas claims
requiring no further fact development, even if the habeas application presents additional claims
that would require further fact development were the case to go forward. Because our review of
the record in this case satisfies us that Applicant’s Brady and Chabot claims are meritorious and
would not benefit from further fact development, we exercise our discretion to adopt the habeas
court’s recommendation and grant relief.
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Published