Larry Dean Cole v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00322-CR
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LARRY DEAN COLE, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 21-12-17156-CR
________________________________________________________________________

MEMORANDUM OPINION

In two issues, Larry Dean Cole challenges his conviction for aggravated

sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B). We hold the

trial court did not abuse its discretion in denying Cole’s Motion for Change of Venue

and in admitting evidence of Cole’s extraneous offenses. For the reasons discussed

below, we affirm the judgment of the trial court.

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Background1

In March 2022, a Montgomery County, Texas grand jury indicted Cole for

one count of aggravated sexual assault of a child, a first-degree felony. See id. A jury

convicted Cole, and the trial court sentenced him to life imprisonment.

Cole challenges his conviction on appeal in two issues and argues the trial

court erred by denying his motion for a change of venue and admitting testimony

regarding extraneous offenses at trial.

Standard of Review

We review a trial court’s denial of a motion for change of venue and its rulings

under the rules of evidence for an abuse of discretion. Page v. State, 213 S.W.3d

332, 337 (Tex. Crim. App. 2006) (outlining standard of review for admission of

evidence); DeBlanc v. State, 799 S.W.2d 701, 705 (Tex. Crim. App. 1990) (stating

standard of review for motion to transfer venue). If the ruling is within the zone of

reasonable disagreement, the trial court does not abuse its discretion. See Page, 213

S.W.3d at 337 (discussing in the context of the admission of evidence); Gonzalez v.

State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007) (discussing in the context of a

motion to transfer venue).

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We limit our discussion of background facts to those necessary to the
appeal’s resolution. See Tex. R. App. P. 47.1 (requiring an appellate court to hand
down an opinion as brief as practicable but that addresses every issue raised and
necessary to the appeal’s resolution).
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Analysis

In his brief, Cole argues that it was error for the trial court to deny his Motion

to Change Venue, and because the State only provided one affidavit, the

preponderance of the evidence was in Cole’s favor. Cole argued that it is improbable

that he received a fair and impartial trial, and denial of his Motion to Change Venue

was a violation of state law and the 14th Amendment.

The relevant portion of article 31.03 provides:

(a) A change of venue may be granted in any felony or misdemeanor
case punishable by confinement on the written motion of the
defendant, supported by his own affidavit and the affidavit of at least
two credible persons, residents of the county where the prosecution
is instituted, for either of the following causes, the truth and
sufficiency of which the court shall determine:

1. That there exists in the county where the prosecution is
commenced so great a prejudice against him that he cannot
obtain a fair and impartial trial;

2. That there is a dangerous combination against him instigated by
influential persons, by reason of which he cannot expect a fair
trial.

See Act of January 1, 1966, 59th Leg. R.S., ch. 722, art. 31.03, 1965 Tex. Gen. Laws

439, 439-40, repealed by Act of May 17, 2023, 88th Leg. R.S., ch. 765, sec. 3.001(6),

2023 Tex. Gen. Laws 1839, 1976 (currently codified at Tex. Code. Crim. Proc. Ann.

art. 31A.004).

The State may challenge the defendant’s motion by attacking the defendant’s

affiants’ credibility or their “means of knowledge[]” through an “affidavit of a
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credible person.” See Act of January 1, 1966, 59th Leg. R.S., ch. 722, art. 31.04,

1965 Tex. Gen. Laws 439, 439-40 (repealed 2023) (currently codified at Tex. Code

Crim. Proc. Ann. art 31A.005). “The purpose of the controverting affidavit is to

provide a form of pleading which establishes that there is a factual dispute in need

of resolution.” Burks v. State, 876 S.W.2d 877, 890 (Tex. Crim. App. 1994) (citation

omitted). “The defendant seeking a change of venue bears the heavy burden to prove

the existence of such prejudice in the community, that the likelihood of obtaining a

fair and impartial trial is doubtful.” Renteria v. State, 206 S.W.3d 689, 709 (Tex.

Crim. App. 2006) (citing DeBlanc, 799 S.W.2d at 704).

Here, approximately one week prior to trial, Cole filed a Motion for Change

of Venue. In the Motion, Cole asserted that he cannot obtain a fair and impartial trial

in Montgomery County because photos of Cole from 2017 to present were posted

on a Facebook page and included allegations against Cole that also date back to

2017. The page encouraged people to contact the State’s Assistant District Attorney

if they or their family members had out-of-the-ordinary interactions with featured

individuals. Included with the Motion were three affidavits. The first affidavit was

that of Cole and stated that the trial should be moved to Brazos County because

“[h]undreds of people [] viewed the Facebook posts and will make up or could make

the venire panel of potential jury in this matter.” The two additional affidavits are

from Mike Johnson and Joe Capers and are identical affidavits that support Cole’s

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argument that based on the Facebook page he would be unable to obtain a fair and

impartial trial in Montgomery County.

The State filed its response and included controverting affidavits and a request

to reopen evidence for a hearing. In its response, the State argued that Cole has failed

to show pervasive publicity in Montgomery County based on a single Facebook

page. According to the State, Cole failed to show the extent, if any, the Facebook

page has permeated the community in Montgomery County and has not shown if

those that have viewed the page are Montgomery County citizens. The State argued

that Cole only presented speculation about any influential persons combined against

him.

The State included two identical controverting affidavits. The first affidavit

was from Brent Stewart, an investigator at the Montgomery County District

Attorney’s Office, and the other from David Stovall, a sergeant investigator at the

Montgomery County District Attorney’s Office. Both stated that Cole’s venue

request, made less than a week before trial, does not allege that the Facebook page

was previously unknown to him and is for the purpose of delay. Stewart and Stovall

believed that Cole’s supporting affidavits were biased based on the affiants’

relationships with Cole. Both stated that Montgomery County citizens’ merely

viewing the Facebook page does not support a change of venue and that even if

citizens have viewed the page, they would only constitute a small percentage of

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potential voir dire members. They further believed that the voir dire process is

adequate to assess whether any panel members have seen the Facebook page and

whether they can be fair and impartial jurors.

At the hearing on the Motion, counsel for Cole did not make an argument

beyond the written Motion. The State noted the controverting affidavits that opposed

a change of venue and stated that Cole’s argument that he could not receive a fair

trial is based on a Facebook page posted many years ago in response to his first trial.

The State argued that Cole could receive a fair trial and that the jury selection process

would properly remove those that may have seen the Facebook page. Counsel for

Cole responded that they were going to have a tough time picking a jury because of

this issue. The trial judge expressed doubts but indicated a change of venue could be

made if publicity caused a problem when trying to pick a jury. The trial judge then

denied Cole’s Motion to Change Venue.

During voir dire, the trial judge introduced all parties including Cole to the

jury panel and asked if any recognized any of the individuals introduced. None of

the jury panel members indicated that they recognized Cole, his counsel, or counsel

for the State.

Having considered the Motion to Change Venue, the State’s Response, the

supporting and controverting affidavits, the argument at the hearing, and the trial

judge’s questioning of the jury panel members, we conclude that Cole failed to carry

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his burden to show that “pervasive, prejudicial, and inflammatory” publicity would

prevent him from obtaining a fair trial by an impartial jury. See Tracy v. State, 597

S.W.3d 502, 509–11 (Tex. Crim. App. 2020) (citation omitted); Colone v. State, 573

S.W.3d 249, 257 (Tex. Crim. App. 2019) (citation omitted). We overrule Cole’s first

issue.

In his second issue, Cole argues that the trial court erred in admitting evidence

of extraneous offenses at trial as these offenses do not help to prove he committed

the charged offense. Cole argues that evidence of an extraneous offense is not

admissible unless it is relevant to the material issue in the case and the relevancy

outweighs its inflammatory or prejudicial potential.

At trial, the trial judge conducted a 38.37 hearing on extraneous conduct

outside the presence of the jury. At the hearing, three witnesses testified that they

were sexually assaulted by Cole, and Investigator Steward testified that Cole

previously pleaded guilty to two counts of indecency with a child in 2017.

At the conclusion of the hearing, the State argued that the testimony of the

four witnesses is relevant under 38.37 as extraneous offenses since it demonstrates

that Cole’s behavior towards the boys is consistent and shows conformity with the

character of Cole as it relates to the charged offense. Counsel for Cole argued that

the evidence submitted is insufficient to prove the relevant matters including Cole’s

character or to show conformity with a particular trait or character. The trial judge

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ruled that “the statute is written to support the admission of these type[s] of

extraneous conduct in these types of cases, so I’m going to allow the testimony.” As

a result, during trial, the jury heard testimony from the four witnesses about Cole’s

past conduct.

To preserve error for appellate review, a complaining party must make a

timely and specific objection. See Tex. R. App. P. 33.1(a); Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas courts require that points of error

on appeal correspond or comport with objections and arguments made at trial. Dixon

v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh’g); see Wright v.

State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial

objection does not comport with the issue raised on appeal, the appellant has

preserved nothing for review.” Wright, 154 S.W.3d at 241 (citations omitted); see

Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003); Ibarra v. State, 11

S.W.3d 189, 197 (Tex. Crim. App. 1999).

On appeal, Cole argues that Rule 404 prohibits the circumstantial use of

character evidence, which is the case in the extraneous evidence admitted at trial.

However, we need not consider whether the evidence was admissible under Rule

404, Texas Rules of Evidence, because the evidence was admissible under 38.37.

See Tex. Code Crim. Proc. Ann. art. 38.37. Article 38.37, entitled “Evidence of

Extraneous Offenses or Acts,” is an evidentiary rule applicable to certain types of

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sexual abuse cases including sexual assault of a child, indecency with a child, and

continuous sexual abuse of a child. Id. art. 38.37 § 1(a), (b), § 2(a)(1)(E). Because

Cole’s 404 complaint on appeal does not comport with his article 38.37 objection

made in the trial court, Cole failed to preserve this complaint for appellate review.

See Tex. R. App. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Ibarra, 11

S.W.3d at 197; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241. To the extent

Cole argues that the probative value of the evidence was outweighed by the

prejudicial and inflammatory character of the evidence, Cole also failed to make a

Rule 403 objection, and it is also waived. See Tex. R. App. P. 33.1(a) We overrule

issue two.

Conclusion

Having considered Cole’s arguments and overruled his issues, we affirm the

judgment of the trial court.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on June 9, 2025
Opinion Delivered October 22, 2025
Do Not Publish

Golemon, C.J., Johnson and Chambers, JJ.

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