Man arrested in killing didn’t fire fatal shot but committed felony murder, warrant says

Avery Colter is charged with felony murder in a shooting last week, but he didn’t fire the fatal shot, according to an arrest warrant.

A video obtained by the Fort Worth Star-Telegram this week showed a gunman get out of a car, open fire and kill Tony Austin Jr. in a parking lot on May 21.

Colter’s attorney has said that the gunman was not his client. The warrant corroborates that but says Colter bears responsibility for the argument and exchange of gunfire that led to Austin’s death.

The warrant obtained from the Star-Telegram’s media partner, WFAA-TV, gave this brief account of the shooting:

Detectives obtained surveillance video to determine how the shooting happened.

About 12:15 p.m. on May 21, a 2016 Chevrolet Malibu with Texas license plates arrived at Ace Auto Repair & Tire in the 1300 block of East Berry Street. A man walked out of a maintenance bay and talked to the driver and a back seat passenger, but later walked back into the business.

Austin, who was the back seat passenger, got out of the Malibu, armed with what appeared to be a handgun in his right hand.

At about the time Austin got out of the car, another Malibu with temporary tags pulled into the parking lot. A passenger in that second Malibu, later identified as Colter, got out of the car and exchanged words with Austin.

During the argument, another unidentified man got out of the front passenger door of the car Austin had been in. That man fired a handgun over the top of the car toward the Malibu with temporary tags, but the shot appeared to hit Austin in the head. Austin collapsed and dropped his handgun, according to the warrant.

The unidentified man who had first opened fire shot again toward the Malibu with temporary tags. He then got back in the car, which accelerated in reverse out of the parking lot and drove away.

As the unidentified man was shooting, Colter ran through the parking lot and appeared to turn and try to shoot back at the car that Austin had been sitting in, the warrant says. Colter didn’t immediately shoot back because the car he had exited from was in between him and the other shooter.

Colter later moved behind a truck and fired three times, the warrant says. He then ran to the alley of the business, where the Malibu with temporary tags picked him up and drove away.

A witness told detectives that Colter was the man who had gotten out of the Malibu with temporary tags and argued with Austin, leading to the exchange of gunfire.

Police later found a handgun which they believe Colter used.

The warrant says Colter wasn’t the one who shot Austin, but the warrant says “he did commit the offense of felony murder.”

The felony murder charge applies because Colter committed a felony — deadly conduct, discharge of a firearm — that caused Austin’s death, according to the warrant.

Police have released few details and have not commented on a motive for the shooting.

“Our homicide unit is still actively investigating this incident,” said Officer Ivan Gomez, a police spokesman, in an email this week.“We are not releasing anymore information for the time being to protect the integrity of the investigation.”

A portion of the video obtained by the Star-Telegram shows the car Austin was in and the shooting, but not the second car. The video does show a man running away after Austin collapses.

Colter’s attorney, Lex Johnston, told the Star-Telegram earlier this week in a telephone interview that Colter didn’t commit the murder. In a later interview with WFAA, Johnston said he believes the evidence in the warrant doesn’t support a felony murder charge and that the charge should be dropped.

“He did not commit murder in any way, shape, form or fashion,” Johnston said. “Avery Colter is not an innocent person in the grand scheme of things, but of this offense, he is innocent.”

Austin, 28, died from a gunshot wound to the head, according to officials with the Tarrant County medical examiner’s office.

Colter, 27, remained in the Tarrant County Jail on Friday in lieu of $200,000 bail on the murder charge.

Related stories from Fort Worth Star Telegram