Co-defendant in murder case gets 5 years probation for tampering

Jeanette Stevens[/caption]

SAN MARCOS — Jeanette Stevens, 43, of Buda, exited the courtroom on Wednesday, Sept. 20, as a free, but supervised woman, after the District Attorney’s Office dismissed a charge of murder, a first-degree felony.

Following a plea of guilty on May 22, Judge Joe Pool sentenced the co-defendant to five years of probation, a $2,000 fine, 200 hours of community service and a $60 monthly supervision charge on Count II of the indictment — tampering with physical evidence, a third-degree felony — in relation to a July 2018 incident that left one man dead.

The previous prosecuting attorney on the case determined that the evidence was not sufficient evidence to go forward on the murder charge, according to Jeanette Stevens’ defense attorney, Susan Schoon.

“I’ll just say it was the right result,” Schoon said, following the sentencing hearing.

Jeanette Stevens' husband and co-defendant, however, did not receive a favorable outcome.

Background

Jeanette and Mark Stevens were arrested on charges of murder and tampering with physical evidence on Dec. 18, 2019, in connection with the July 25, 2018, slaying of Brandon Fontenette.

According to the prosecution at Mark Stevens’ trial, which took place in July 2021, Mark and Jeanette Stevens went to Railhouse Bar in Kyle, where they were introduced to the victim.

After drinking and socializing with Fontenette for approximately an hour, they invited him back to their residence in Buda. At around 11 p.m., their two vehicles appeared to follow each other out of the parking lot of the Railhouse Bar. At the Stevenses’ home in Buda, they continued drinking and this led to a consensual sexual encounter between the co-defendants and the victim.

The Trial of Mark Stevens

Mark Stevens[/caption]

“This case arises from a three-way tryst gone awry,” stated the Texas Court of Appeals, Third District Memorandum Opinion.

According to an autopsy presented at trial, Mark Stevens strangled Fontenette, shot him with a BB gun 13 times and fatally stabbed him in the back.

The co-defendant then called his brother to discuss how to dismember and dispose of the body.

According to the testimony of HCSO Detective Mark Opiela, “Discussing his actions after the stabbing, Mark Stevens stated that the call with his brother was an ‘initial knee jerk reaction,’ but that ‘luckily, the smart side of [his] brain finally kicked in and [he] left everything alone.’”

In the recording of the call with his brother, which was played at trial, Mark Stevens told his brother that he “need[ed] help” and was “in trouble.” He explained that he could “do it on [his] own — if need be,” that he needed his brother’s “expertise” and that Mark Stevens would “take the fall for everything.” He also told his brother that, “Jeanette’s not so much of a big help right now,” adding, “I’ll do it on my own. Done it before. Never stateside, but I’ll do it.” At one point, a female voice told Mark Stevens, “I’m trying to be part of the solution here.”

The state elaborated at trial, referring to the “ghoulish calls:” “Think about how depraved you have to be, your first instinct after stabbing someone to death is to call your brother for assistance, chopping up and disposing of that body. He denies there’s a plan to cover this up, he denies he’s tampering with evidence, but that’s his first instinct … He didn’t call 911, he called his brother to dispose of the body. Because, after all, from Mark Stevens’ perspective, Brandon Fontenette is a nobody, easily disposable.”

His brother told their father about the conversation and the father called 911. Police discovered the victim’s body in the master bathroom.

Hays County Sheriff’s Office Deputy Daisy Trevino testified that she “observed a man, later identified as Brandon Fontenette, lying on his back on the bathroom floor with his legs beneath him and a pool of coagulated blood under his head,” read the memorandum. “It appeared that Fontenette had been in the bathroom ‘for a good deal of time,’ but she saw nothing indicating that his body had been moved.”

However, Trevino also testified that some of his belongings were removed from his body and she observed a cell phone and Ziploc bag containing a wallet on the counter of the kitchen bar area.

Renee Luna, the supervisor for the HCSO crime scene and evidence units, testified that in the pocket of Mark Stevens' camo shorts were his wallet and a set of keys later determined to belong to Fontenette.

When asked upon cross-examination what Opiela thought happened in the case, the detective testified: “I believe there was a sexual altercation or a sexual event that was taking place. I believe that Jeanette Stevens and Brandon Fontenette were about to engage in sexual intercourse. I believe that either upset or triggered Mr. Stevens and I believe he retrieved the BB gun and he came back with the knife.”

On July 13, 2021, the jury returned guilty verdicts on both the murder and tampering with evidence charges. Following a punishment hearing the next day, the jury found that Mark Stevens did not prove the issue of sudden passion and sentenced him to life imprisonment for murder and 10 years confinement and a $10,000 fine for tampering with physical evidence. The trial court ordered that the sentences would run concurrently, as required by law.

When asked if it had additional matters, the state replied that “because of the way the indictment reads, there should be an automatic deadly weapon finding as to Count I [murder].” The trial court affirmed the request.

The Appeal

On Aug. 11, 2023, the Texas Court of Appeals, Third District, in Austin denied Mark Stevens’ appeal, which contended four issues: that the trial court improperly commented on the weight of the evidence in its charge to the jury; that the evidence is legally insufficient to support the jury’s finding of guilt for tampering; that the trial court erred by omitting the mandatory parole instruction in its punishment charge; and that the court erred by entering a deadly-weapon finding in the murder judgment.

Comment on the Weight of the Evidence

In his first issue, Mark Stevens contends that the trial court erred by including a limiting instruction in the guilt-innocence jury charge that improperly commented on the weight of the evidence presented at trial. He asserts that by instructing the jury that the state offered extraneous offense evidence “to show the facts and circumstances surrounding the indicted offense,” the trial court “assumed the state’s evidence was factual” and therefore true.

The Texas Court of Appeals stated that “so long as the evidence is admissible for … proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident,” it is allowed to be included in the jury instruction. For example, the jury could consider that the Stevenses intended to engage in a three-way sexual act; however, the jury could not consider that evidence to prove that Mark Stevens committed murder.

“We need not resolve that question in the present appeal because, assuming without deciding that the instruction was erroneous, it did not egregiously harm Mark Stevens,” the memorandum read, adding that errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right or vitally affect a defensive theory. The appellant must have suffered actual, not merely theoretical, harm, according to four factors per Almanza v. Texas.

Legal Sufficiency of the Evidence

In his second issue, Mark Stevens contends that the evidence presented at trial was legally insufficient to support his conviction for tampering with physical evidence or, alternatively, was insufficient to prove only attempted tampering. He asserts that by removing items from Fontenette’s wallet and placing them in the Ziploc bag on the kitchen counter, he “made them more visible and less concealed than before their removal.” Similarly, his act of “apparently” placing Fontenette’s keys in his shorts pocket, he explained, “did not make the keys any more or less visible or ‘concealed’ than before.”

The Court of Appeal’s responsibility in considering the appeal is whether the fact finder or jury was acting rationally.

In the present case, the state was required to prove — as charged in the indictment — that Mark Stevens was aware at the time he allegedly concealed the victim’s car keys, wallet, ID and debit cards that he had cut or stabbed Fontenette “with the conscious desire to kill him or to cause him serious bodily injury, with the awareness that his act was reasonably to kill Fontenette.”

The Court of Appeals stated that there was ample evidence that Mark Stevens intended to impair the availability of the victim’s belongings as evidence in any subsequent investigation or official proceeding, noting the phone calls between the appellate and his brother, as well as statements in recorded interviews which provided additional evidence that he intended to conceal evidence.

“Finally, there was also evidence presented from which a reasonable juror could have found beyond a reasonable doubt that Mark Stevens had concealed Fontenette’s car keys by hiding them or removing them from notice,” the memorandum stated. “Because the evidence was legally sufficient to support Mark Stevens’ tampering conviction, we need not address his alternative argument that the evidence was sufficient only to prove attempted tampering. Accordingly, we overrule his second issue.”

Parole Instruction

In his third issue, Mark Stevens contends that the trial court erred by failing to include the mandatory parole instruction in the portion of its punishment-phase jury charge setting forth the law applicable to the murder count. He asserts that the jury’s note to the trial court during its sentencing deliberations — asking whether “the sentences of the two counts would be served concurrently or subsequently” — demonstrates that the question of parole eligibility contributed to its assessment of a life sentence. He also asserts that his life sentence, in light of his “thin criminal history,” was sufficiently severe to show egregious harm.

In its brief, the state concedes that the trial court erred by failing to include the instruction with respect to the murder count, but argues that the error was harmless. "We conclude that the omission was an error; however, because Stevens did not object to the punishment charge or request that the parole instruction be given for the murder count, he must demonstrate that its omission caused him egregious harm," the record stated.

The Court of Appeals said, “There is nothing in the record to indicate that the jury’s assessment of life imprisonment was influenced by a misunderstanding of parole or good-conduct-time law or that Mark Stevens was denied a fair and impartial trial. Contrary to his argument otherwise, the jury’s note, which concerned the possible stacking of his sentences, was not suggestive of confusion on the issue of parole.”

“For these reasons,” the court continued, “we conclude that Stevens was not egregiously harmed by the trial court’s error. We overrule his third issue.”

Deadly-Weapon Finding

In his fourth issue, Mark Stevens contends that the trial court erred by entering a deadly weapon finding in his murder judgment because the indictment did not allege that he used or exhibited a deadly weapon, the jury did not make an express or implied finding of a deadly weapon and the evidence did not show the use of a deadly weapon per se.

The verdict itself is an adequate basis for the court’s entry of a deadly weapon finding in the judgment because the defendant did use an instrument capable of causing death.

“The jury necessarily found that he caused Fontenette’s death by using something that, in the manner of its use, was capable of causing — and did cause — death,” the memorandum stated.

The Texas Court of Appeals, Third District affirmed and upheld the trial court’s judgment of conviction of murder and tampering with physical evidence, as well as the subsequent sentences of life imprisonment and 10 years in prison, respectively.