How an Instagram post led to a teen's wrongful arrest.
Austin Colson had just finished a 16-hour day that began with classes at Sam Houston State University and ended as a night shift Pizza Hut delivery driver when he headed to his suburban Houston home.
“On my way was my worst nightmare,” he said, retracing his steps from behind the wheel of his Toyota Camry.
The mild-mannered 19-year-old who was still living with his parents to save money was within a mile of their house when a Montgomery County sheriff’s deputy said in a report that he did not come to a complete stop at a four-way intersection.
Minutes later, the teen who had never had a run-in with police sat in the back of a jail-bound patrol car – completely blindsided and baffled.
As deputies clasped the handcuffs on Colson that October 2021 night, they informed him that he was the target of an arrest warrant issued by the San Marcos Police Department three months earlier on an assault charge.
Colson was floored. He had never set foot in San Marcos, 200 miles west of his home. And he knew he’d never assaulted anyone.
“I was stunned by it basically,” he said.
Over the next several weeks, Colson, his freedom and reputation at stake, and his father worked day and night to untangle why authorities had identified him as one of four assailants in a June 2021 fight outside Showdown nightclub in downtown San Marcos.
An American-Statesman examination of what happened to Colson found that the San Marcos Police Department built its case on:
Flawed evidence, including little or no checks-and-balance by the department to verify Colson's identity.
Mistakenly claiming Colson attended a local university, which put him near the crime scene.
Never giving Colson an opportunity to provide an alibi before arresting him.
A justice of the peace who signed the probable cause warrant based on an incomplete investigation.
The lead investigator for San Marcos who later became a disgraced officer and who was eventually shot dead by his fellow officers after a domestic violence arrest.
Timothy T. Williams, a former Los Angeles Police Department senior detective supervisor who now consults for law enforcement agencies nationally, said what happened to Colson highlights the results of an investigative misstep or a half-baked case that can set the stage for faulty arrests – and even worse, wrongful convictions.
“If you want to see a wrong investigation, you look at this,” he said. “You have to corroborate what the witness is telling you, and how you corroborate is that you do that through your independent investigation.”
Colson eventually got the case against him dropped and removed from public records in Hays County. The now 21-year-old is suing the city of San Marcos and multiple officers and supervisors over the investigation.
In a statement to the Statesman, San Marcos city attorney Joanna Lippman Salinas said, “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 statement added that police subsequently called prosecutors to ask that they drop charges against Colson. But the city is still fighting his lawsuit, saying Colson has not reached the standard for it to go forward, including identifying overall training deficiencies in the department.
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A drive home and an arrest
Colson is the son of two Montgomery County employees – his father is a county commissioner staffer, and his mother works as an emergency management administrative aide – who always supported law enforcement.
When he’s not working or studying, he enjoys tinkering with older model trucks and cars, and friends sometimes call him “Smiley” because of his cheerful disposition. He now works in construction while at Sam Houston State.
The night of his arrest, Colson walked out of Pizza Hut with his own pepperoni pizza, got in the driver’s seat of his Camry and pulled onto FM 1097, which runs through his hometown of Willis.
He turned left onto the two-lane Cude Cemetery Road and approached a four-way stop. Soon after pulling through, he saw flashing blue lights from a Montgomery County sheriff’s deputy in his rearview mirror and nervously pulled into the parking lot of Little Texans Child Care.
He’d never been stopped by police.
“I wasn't doing anything wrong, but I was scared,” he said. “My heart was beating."
Colson nervously played with his phone, waiting for the deputy to check his license. As minutes passed, he saw a second deputy arrive, his anxiety ratcheting higher.
Then they both approached his car and ordered him out.
"I was very scared, and I was scared of jail itself, actually,” he said.
Colson spent the next 16 hours behind bars – in part because a judge in Hays County who signed the warrant for his arrest did not set a bond or conditions for his release. Finally, jail staff got a Montgomery County judge to do so.
Colson said he told corrections officers repeatedly, “I don’t even know why I am in here.” He sat on the cold floor of a holding cell for several hours with 11 other detainees before being moved to a more permanent cell.
Exhausted from stress and a sleepless night, he remembered melting into his mother’s arm as she waited for him in the jail lobby the next afternoon.
“That moment was basically like a sigh of joy,” he said. “I couldn’t wait to hug her. I walked out and immediately gave her a big hug.”
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Unraveling what happened
Colson and his father, Tim Stewart, immediately went to work trying to understand what led to the 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,” Stewart said. “But you don’t get to quit or say, ‘Let it run its course.’ It is not one of those things.”
According to Colson’s lawsuit, he and his father got a copy of the arrest report from the June 29, 2021, incident that named Colson as a suspect. It described how San Marcos police officer Kyle Lobo arrived at Showdown at 1:19 a.m. and found the victim on the floor of the bathroom “drenched in his own blood” with “a large laceration to the right side of his head” and “scrapes on his arms and legs.”
The victim recounted the assault to Lobo, saying that he exited Showdown and saw a man kicking his 2004 red Toyota Tacoma. The man then began “taking swings” at the victim, he reported, and both fell to the ground. The victim told Lobo that three other men joined in the assault before running away, the report said. Officers arrested the man they called the main aggressor.
The victim described the other three assailants as “all generic looking (white male) college kids wearing shorts and shirts. No individual identifiers were gathered,” Lobo noted in his report.
Nine days after the attack, according to an arrest affidavit for Colson, the victim emailed Lobo “and advised that he had identified one of the males in the melee by looking through (the suspect’s) Instagram.”
Months later, as he reviewed the report, Colson recognized the name of the main suspect, whose case, according to his attorney, has since been resolved via a plea with prosecutors that will dismiss it if he complies with conditions such as community service.
Colson had attended elementary and middle school with him, but the two had lost touch since they attended different high schools.
Their only connection, Colson said, is that he – and his profile picture – appeared on a list of the man’s Facebook and Instagram connections. He said doesn’t remember ever posing in a picture with the man.
“I had not seen this guy in five years,” he said. “I was actually shocked that they gave out a warrant based on a social media picture.”
According to an arrest affidavit for Colson, Lobo took one additional step to identify Colson as a suspect.
"I took this information and verified Colson's identity by following up with (a) Texas State University database listing Colson as a student," Lobo wrote.
Colson said he has never registered for or attended classes at the university.
“This verification was quite obviously erroneous,” Colson’s suit said. “This is a fact that Officer Lobo could have easily verified had he bothered to actually contact Mr. Colson at any point in his ‘investigation.’”
A month after receiving information from the victim, Lobo took an arrest warrant to Hays County Justice of the Peace Precinct 1 Maggie H. Moreno, who signed it. Moreno’s clerk said in an email to the Statesman that Moreno had no comment.
As they worked to clear his name, Colson and his father said they felt as though they had to convince authorities that he was not guilty.
"I shouldn't have had to prove my innocence, but in this situation, I definitely did," Colson said.
The suit said that Stewart twice contacted the Hays County district attorney’s office over several days, but it referred him to the San Marcos police.
One unidentified police employee told him “he would have to prove the misidentification in court,” according to the suit. He also asked to speak to Lobo, and he eventually got a call back.
“Lobo stated that he and his supervisor compared the photograph to them from (the social media account) to a still photo from the crime scene and noticed similarities,” the suit said.
Three weeks after Colson’s arrest, he filed a formal complaint with the chief of police, Stan Standridge. In response, the suit says he received a call from a night shift commander, Tiffany Williams, who repeated that Lobo and his supervisor reviewed a social media account and that based on a picture, “agreed that one of the suspects could be Austin Colson.”
But she acknowledged that she independently confirmed that Colson never attended Texas State.
The next day, the supervisor informed Colson that the department had asked prosecutors to drop the case.
"I feel like we were dealing with a bunch of people who didn't care ... that just thought I was another person calling and complaining," Colson said. "They could have definitely shown more empathy.”
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Aftermath
A year after Colson’s arrest, Lobo resigned from the San Marcos Police Department after fellow officers arrested and charged him with assaulting his wife and an 11-year-old child.
On Dec. 25, 2022, his former colleagues shot and killed Lobo after authorities said he pulled a gun on them after responding to a report that he had assaulted someone in an apartment.
Colson said a friend of his father’s sent them a news release about Lobo’s death.
“This on top of that it made it even crazier for me,” Colson said.
In addition to Lobo, other defendants in Colson’s suit include Standbridge and multiple unnamed “John Doe” officers and supervisors.
Austin attorney Manny Arambula, who represents Colson, said what happened to him was a failure by the department, not just one officer.
He said the department did not follow a mandate in the Texas Code of Criminal Procedures requiring police who use photographs to identify a suspect to take additional steps, including:
Using a photo lineup that includes a picture of the suspect in which he does not stand out.
Asking the suspect how confident he or she is with the identification.
Using a photograph other than one the witness has seen to identify the suspect.
“Every department is obligated to both institute and ensure the use of these types of policies,” said Arambula, who represents Colson. “They didn’t follow simple investigative guidelines."
Colson said he suffered through weeks of trauma from the incident. His grades plummeted, and he quit his job at Pizza Hut so he could focus on college.
He said even though the case was dismissed, he chose to sue the city and department for accountability.
“You would never think something like this would happen to you, and it’s just totally crazy that it happened to me," he said.
This article originally appeared on Austin American-Statesman: Family sues city of San Marcos after teen's wrongful arrest by police
