Grape Creek Man on Trial for Beating Brother with Hose

John Lynn Kolster, Jr. sat with a smirk on his face on Judge Tom Gossett’s 391st District Court on Monday, listening and laughing quietly at portions of his brother’s testimony, whom he is accused of beating with a three-foot hose.

The trial began at around 11:40 a.m., when a jury of five men and seven women were seated in the panel for the attorneys’ opening arguments. Kolster, 41, is charged with one count of assault on a family/household member, a third-degree felony enhanced to the second degree due to a prior conviction for the same charge.

Attorneys for the state and defense painted two vastly different pictures of the same incident Monday, each naming the other brother as the primary aggressor in the incident, which occurred at a property in Grape Creek on the afternoon of April 25, 2014.

Prosecuting attorney Jason Ferguson addressed the jury first, outlining the events that began with a phone call between the victim, Nicholas Kolster, and his younger brother, Tanner.

Nicholas, a self-employed welder, took the stand as the state’s first witness, stating that shortly after lunch on the day of the incident he received a phone call from Tanner, who said he’d been contacted by a neighbor of the property the Kolster brothers all share in the 9000 block of Valley Drive.

The neighbor had told Tanner that someone was on the property loading things into a truck and trailer, and since he was out of town, Tanner called Nicholas to ask if he could stop by and check out the situation.

Nicholas stated, “When I pulled up, I noticed an older-model Ford pickup with a small trailer, and a slender-looking guy taking t-posts out of the fence line and loading them into the trailer.” 

Nicholas said he didn’t know who the “slender man” was, and as he approached, noticed that conduit, electrical wires and meter boxes had been loaded into the trailer as well. He had assumed the man was the only person present, however as he drew closer, the man “hollered at John”, and Nicholas’ brother then came running from the south side of the property, yelling at him and shoving him when he got close enough, Nicholas said.

At some point, he testified, John Kolster picked up what Nicholas believed was a grey pipe or hose estimated to be about an inch thick and three-feet long, and began beating him with it repeatedly.

“I would put my arms up to block the blows. That’s how I got the marks on my arms and shoulders,” Nicholas said, adding that he hadn’t made any offensive moves toward his brother and that he was trying to keep from being hit in the face.

During his testimony, Nicholas first stated that he was beaten with the object when his brother realized he’d called the sheriff. He then stated the assault took place prior to the phone call, and when he was able to retreat, he dialed 911.

“When he saw that I called the sheriff it enraged him even more,” Nicholas said at one point. “He picked up the grey pipe and hit me…he hit me probably three, four, five times.”

He then stated that when he realized that his brother was not going to stop, he retreated to the gate of the property, where he phoned the sheriff. He waited by the gate for deputies to arrive, he said, positioning his truck so that he could keep an eye on his brother and the “slender man” and block any attempts to flee.

While on the phone with dispatch, Nicholas said, his brother began rolling in the gravel, then picked up a shovel and began walking around with it. When he repositioned his truck, John Kolster allegedly began throwing rocks at it, then he, the slender man and a skinny woman whom he hadn’t seen before piled into the Ford and began driving around the property with the trailer attached, however there were no exits.

Approaching the witness stand, prosecuting attorney Meagan White showed Nicholas a photo of a piece of hose and asked him if the item accurately depicted what his brother had assaulted him with that day. As he responded affirmatively, John Kolster began to laugh quietly, jotting down notes and pointing them out to his attorney as the testimony continued.

During cross –examination, defense attorney Jimmy Stewart pitched the story in the other direction, first asking Nicholas why he hadn’t immediately phone the sheriff upon learning there was a possible theft on his property, and then intimating that Nicholas had been aware that his brother was living on the property and had gone out there to run him off.

“As far as I know he wasn’t living out there,” Nicholas said. “It wasn’t a livable situation. It’s the same as living under a bridge downtown by the river…” he likened, noting that there was no running water or electricity in the few buildings on the land and that the primary residence had burned down the year prior.

When the state called former Tom Green County Sheriff’s Deputy Michael Farmer to the stand, the focus for the defense centered on a six-minute investigation, an assault alleged to have been initiated by Nicholas, and bad blood between brothers.

Stewart had stated in his opening arguments that he believed the evidence would prove his client acted in defense of himself and his property when his brother arrived with a pistol and an altercation ensued during which both were injured.

Farmer, however, testified that during his investigation no mention of a pistol was ever made, and said that he “observed no sign that he (John Kolster) had been physically assaulted.”

When he arrived on scene at approximately 2 p.m., Farmer stated, he spoke first with Nicholas and observed welts on his back and arms, then spoke to the defendant, who claimed to be the victim.

“The defendant, he was upset. He was physically upset. I believe he advise me that Nicholas had assaulted him, pushed him down or hit him,” Farmer said. He then continued to say that John had told him Nicholas had picked up the hose and begun beating himself, causing the welts on his arms, shoulders and back.

“After speaking with both parties and reviewing the evidence, I determined the defendant was the primary aggressor,” he said, “and placed him under arrest for assault/family violence.” The investigation and arrest took place in the space of six minutes.

The slender man and skinny woman were later identified, and neither made mention of a gun at that time, nor in the months that followed leading up to trial, Sgt. Andrew Alwine, a TGCSO investigator told the court.

After the state rested at 3:10 p.m., the plot took another twist when the defense called its only witness; a tall and slender man, who shuffled into the courtroom wearing an orange jumpsuit, hands and feet cuffed and connected with chains that rattled as he approached the stand.

Incidentally, the man, Matthew Clark, had been present at the incident and now told an entirely different story than that which had been repeated throughout the afternoon. Clark contended that when Nicholas arrived on scene, he went directly to the barn with a pistol in his hand, rolled up the door, and confronted his brother.

According to Clark, Nicholas then pushed the defendant to the ground, who responded by getting to his feet and grabbing the hose to defend himself.

“He was gettin’ on Nick with the rubber hose,” Clark said. Then added that during this altercation Nicholas was holding the pistol, phoning the sheriff and swinging a three-foot stick he’d picked up.

Asked why he didn’t tell officers his version of the incident, Clark said he didn’t remember if he did or not since he was tied up in his own arrest at that time for a score of syringes and other drug paraphernalia that had been located inside his Ford pickup.

At 4:01 p.m., the defense rested. John Kolster chose not to take the stand. Giving the jury a break for the evening, the judge and attorneys continued to prepare a preliminary charge, and planned to resume at 9:00 a.m. Tuesday.

If convicted, Kolster faces a sentence of 2-20 years confinement and an optional fine of $10k. The assault charge was enhanced due to a conviction in June 2007 for assault on a family member. He was also convicted of assault on a family member in 2004, and has a criminal history that includes DWI, three different possession convictions, and threatening to flood his jail cell.