COURTS

Confrontation that ignited attack on Austin gay couple questioned by detective

Ryan Autullo / rautullo@statesman.com
From left, defendants Frank Macias, Kolby Monell and Miguel Macias, and Quinn O’Connor, second from right, are accompanied by attorney Brian Erskine, third from right, and O’Connor’s attorney, Leslie Boykin, far right, at the Blackwell-Thurman Criminal Justice Center on Nov. 22. The defendants are accused of assaulting gay couple Tristan Perry and Spencer Deehring in downtown Austin in January 2019. [JAY JANNER/AMERICAN-STATESMAN]

A new court filing contradicts a long-standing theory that Travis County prosecutors have used as the basis for a hate crime case against four men accused of beating up a gay couple in downtown Austin last year.

Since the fight 12 months ago, the Travis County district attorney’s office has operated under the belief that the couple were targeted because they were holding hands after leaving a gay nightclub. That assertion prompted their pursuit of a rare hate crime finding under state law.

But a new court filing shows that Austin police detective Robert Field, who investigated the fight, does not believe a hate crime occurred but thinks the fight started when one of the men in the group of four bumped shoulders with one of the gay men while they were passing on the street.

Recapping a recent conversation she had with the detective, prosecutor Andrea Austin emailed the attorneys representing the four defendants Jan. 17 to inform them of the detective’s position. According to the email, Field also told Austin that a Hispanic man charged in the attack, Frank Macias, mentioned in an interview with investigators that one of the gay men had made a racial comment to Macias’ group.

The new disclosures were brought to the attention of state District Judge David Wahlberg in a motion filed Wednesday by defense attorney Brian Erskine seeking to quash the indictment.

Erskine argued that Field’s statement to Austin “indicates the encounter was more indicative of mutual trash talk turned mutual fight where Spencer Deehring and Tristan Perry were injured, and does not support a hate crime finding.” Erskine, who is representing defendant Miguel Macias, said the "state of the evidence is such that no reasonable fact finder could make a hate crime finding.“

Wahlberg has not ruled on the motion.

Austin, who is prosecuting the case as a member of the district attorney’s Hate Crime Task Force, told the American-Statesman that a jury will determine whether the elements of a hate crime exist and that Field’s stance is merely an opinion.

Field’s colleague, detective Charles Edwards, assisted in the investigation and wrote an arrest affidavit with his understanding of what happened Jan. 19, 2019, when Perry and Deehring were walking along East Third Street. According to the document, the couple had just left the nearby club Rain when a man called them a gay slur. The man repeated the slur several times after the couple asked him what he had said.

Perry told police he was punched to the ground, where he was beaten with fists and feet. according to the affidavit, Deehring intervened and also was knocked to the ground and beaten.

The couple were taken by ambulance to Dell Seton Medical Center, where they were treated for numerous injuries, including concussions.

The four defendants appeared in Wahlberg’s courtroom in November, and each pleaded not guilty to aggravated assault with a deadly weapon, a first-degree felony. By doing so, they rejected a plea deal from Austin that called for eight years in prison plus an acknowledgment that they attacked the couple because they are gay.

Quinn O’Connor is scheduled for trial May 18. The other three defendants — Miguel Macias, Frank Macias and Kolby Monell — will have separate trials after O’Connor. To prove the elements of a hate crime, Austin must show the couple were targeted because of their sexual orientation and for no other reason.

All four men are out of jail on personal bonds and were in Wahlberg’s courtroom Wednesday as their lawyers sought to block investigators from inspecting the men’s mobile phones.

The phones have been in police custody since the men were arrested in February. However, detectives waited about 10 months to obtain a warrant to search them.

Edwards testified Wednesday that the delay was a result of him prioritizing other areas of the investigation. He said he had no specific reason for requesting the searches but believes the phones could contain additional evidence. Edwards added that he had mistakenly mislabeled the devices and had obtained a warrant for the wrong one.

Before Wahlberg could rule, Austin surrendered to the defense’s suppression motion over problems with Edwards’ testimony and informed the court she no longer will pursue evidence on the phones. The devices were returned to the defendants.

Erskine, the defense attorney, had wanted to examine Perry’s and Deehring’s phones for potential evidence that would show the racial slur was used. Wahlberg denied that motion.