MONTGOMERY COUNTY, Texas — A 19-year-old Montgomery County man was arrested for an assault he didn’t commit. It happened in a city he had never stepped foot in. And law enforcement experts say San Marcos police failed to take basic investigative steps before getting a warrant for his arrest.
That man says police based his arrest almost entirely on a Facebook picture, in a case of mistaken identity that left him battling to clear his name. Now, finally, the department has acknowledged the incident. He shared his story exclusively with the KVUE Defenders.
Austin Colson had just finished a full day of classes at Sam Houston State University and was heading home from his night job as a Pizza Hut delivery driver. When he got in his Toyota Camry at around 10:30 p.m. on Oct. 4, 2021 he had no idea he wouldn’t actually be going home.
"On my way home was my worst nightmare,” Colson said.
He followed his usual 10-minute route in Montgomery County, in the Houston suburbs along FM 1097, through his hometown of Willis, Texas, before turning onto the quiet, two-lane Cude Cemetery Road. As Colson entered the intersection at FM 380, which is now marked with a stoplight, a sheriff’s deputy stopped him for failing to make a complete stop.
"I saw her turn behind me right here, and then she flipped her lights on,” he said.
Colson pulled into a day care parking lot.
"When the cop pulled me over, that was the first time ever being pulled over," Colson said.. "Oh, I was scared. I wasn't doing nothing wrong, but I was scared. My heart was beating."
Less than a mile from home, Colson said he thought he’d just get a ticket and be on his way within minutes. Instead, a second deputy arrived.
"Both walked up to my window, and she told me to get out of the car. [She said] I had a warrant out for my arrest for assault with bodily injury," Colson told the KVUE Defenders. "I was like, 'Where did this happen? Where did this assault happen?'"
"She's [the deputy's] like, her response was, ‘Hays County.’ And I am like, 'Can you tell me where Hays County is?' She's like, 'I don't know,'" Colson continued.
He spent the next 16 hours in the Montgomery County Jail, confused about how he could possibly be charged with a crime that happened in a city 200 miles away – a crime for which he could face up to a year in jail.
Colson said he’d never even been to San Marcos and was "stunned" by the assault allegation.
On the day of his release, he and his father immediately started making phone calls to try to find out what could have possibly led to his arrest.
"When you call a town three hours away and you try to talk to their police department, they aren't willing to give information or talk to you at all,” Colson told the Defenders.
Dozens of calls and months later, they finally unraveled what happened. Much of what they discovered is described in a lawsuit Colson filed in April against the City of San Marcos and multiple officers and supervisors. According to the lawsuit, a man in San Marcos was the victim of an assault by multiple men in June of 2021, outside a bar called Showdown. That man told police he positively identified one of his alleged assailants, and police later arrested and charged that suspect with assault.
He happened to be from Colson’s hometown, but Colson said he hadn’t seen him in years.
The lawsuit claims the assault victim identified Colson as another suspect after scrolling through the alleged assailant’s social media feeds. The suit says he saw a picture of Colson and told San Marcos police he was the second perpetrator. The suit goes on to allege that in an effort to place Colson in San Marcos, the lead investigator got information that Colson was a student at Texas State University, placing him in San Marcos. That information turned out to be incorrect, but not before a warrant was issued for Colson’s arrest.
That warrant popped up the night Montgomery County deputies pulled Colson over.
The KVUE Defenders shared the case with Timothy Williams, a national law enforcement expert in Los Angeles, who specializes in police procedures and wrongful convictions.
“If you want to see a wrong investigation, you look at this case,” Williams said.
Williams told the Defenders that San Marcos police failed to take basic investigative steps before getting a warrant for Colson’s arrest – like questioning the suspect.
“You have to corroborate what the witness is telling you, and how you corroborate is that you do that through your independent investigation,” Williams said. "Talk to this person, find out where this person was at. Does he or she have an alibi? And you investigate those alibis as well."
Williams said what happened represents a failure of both investigators and supervisors. The City of San Marcos responded to the lawsuit by asking a court to dismiss it.
The Defenders asked San Marcos police for an interview for this story. The City of San Marcos provided a written statement from attorney Joanna Lippman Salineas, instead. It reads:
“The Police Department responded to a report of an aggravated assault causing serious bodily injury on July 8, 2021. Austin Colson was specifically identified by the assault victim as one of the assailants to San Marcos Police Officer Kyle Lobo. Officer Lobo worked with Texas State University officials to identify the potential suspect.
Officer Lobo prepared a probable cause affidavit specifically setting out the source of the identification and his communications with the university. This resulted in an arrest warrant being issued by a local magistrate judge. After the arrest, the Police Department received additional information and conducted additional investigation that resulted in the determination that the suspect was incorrectly identified. The District Attorney’s Office was promptly contacted and advised that the State would facilitate Mr. Colson’s seeking and obtaining an expedited expunction.”
“You would never think something like this would happen to you,” Colson said.
Colson believes the San Marcos Police Department should face accountability. That’s why he is pursuing a case against the City and several of its officers and supervisors involved in the investigation that led to his wrongful arrest.
“It’s just totally crazy that it happened to me,” Colson said. “I shouldn’t have had to prove my innocence, but in this situation, I definitely did.”
The KVUE Defenders also reached out to the Hays County Justice of the Peace Maggie H. Moreno. She’s the judge who signed the arrest warrant for Colson that San Marcos police presented to her.
Experts say often the first set of checks-and-balances for the criminal justice system is for judges to make sure police met their burden for an arrest.
Judge Moreno declined to comment.