Saying that Tarrant County prosecutors made “misstatements of evidence” and misrepresented some facts to the degree that they “are not facts at all,” an appeals court overturned a child sexual assault conviction of a man who claimed he was simply acting as the girl’s caregiver.
The Second Court of Appeals in Fort Worth also entered a judgment of acquittal for Calub Bocanegra, who had been convicted of sexual assault of a child young than 14 in 2015 and sentenced to 25 years in prison.
Bocanegra, 25, of Grand Prairie, had been accused of penetrating a 4-year-old girl’s vagina with his finger.
But in a stinging opinion issued Feb. 16, justices Bonnie Sudderth and Bill Meier with the Second Court of Appeals in Fort Worth, wrote that the jurors could not have reached a guilty verdict that met the standard of “beyond a reasonable doubt” based on the evidence that was presented at trial.
Never miss a local story.
The Tarrant County district attorney’s office is requesting a rehearing from the Second Court of Appeals and, if necessary, will ask for a review by the Texas Court of Criminal Appeals, according to spokeswoman Samantha Jordan. Melinda Westmoreland and Colin McLaughlin, Tarrant County assistant district attorneys, prosecuted the case, Jordan said.
Bocanegra has been in the Texas Department of Corrections Ware Unit in Colorado City for 18 months. His attorney, Diane McVay, filed a motion Wednesday for him to be released on a personal recognizance bond or reasonable bail, pending the final outcome of the case.
“We hope the court will agree to release him since the state is paying for his housing and he could very easily be at home,” McVay said. “ ... I know his family is anxious for him to be home."
Sudderith and Meier took issue with the fact that Bocanegra was convicted of sexual assault based largely on the outcry of a child.
“Physical evidence in this case is nonexistent. The alleged victim remembered nothing at trial. The outcry, as testified to at trial, was bare-bones and as consistent with a legitimate parental caretaking function as a potential sexual assault. There was no other evidence in the record that tended to prove that Bocanegra committed a crime,” the opinion stated.
Girl suffered from diaper rash
Bocanegra became one of the child’s caregivers after he and his high school girlfriend, identified as Mandy in court documents, began living together, first at his parents’ home and eventually her mother’s home.
Mandy had a 18-month-old daughter when she and Bocanegra began living together and because she had frequent diaper rashes, doctors required the infant’s caregivers to salve her genital area with a cream they prescribed, according to court documents. Bocanegra was among the caregivers who applied the cream, according to court documents.
Bocanegra had never helped raise a child before but “eventually he joined in the parental functions of bathing Amy, feeding her, and changing her diapers,” court documents state. He would also apply the cream to the girl’s genital area, according to testimony at his trial.
One day in December 2012 — four or five months after Bocanegra and Mandy had separated — Mandy was brushing her child’s hair, according to testimony, and the girl complained that she was afraid to stay alone in her room at night. As was the case when the girl had made the same complaints before, Mandy asked why.
”But on this occasion, when Mandy asked [the child] why, she said that her dad [Bocanegra] had touched her “cookie” and that “it hurt [her] tummy,” according to court documents.
“Cookie” was the child’s word for vagina and the child identified her dad as Bocanegra, records show.
The child was almost 7 years old at the time of the trial and 4 when she made the outcry, according to court records.
‘Suspicion of wrongdoing’
The appeals court found there was simply not enough evidence to support a conviction.
“When all of the dust has settled here, looking only at the actual facts that have support in the record and all reasonable inferences — ignoring innuendo, insinuation, and impermissible speculation — from those facts, even in the light most favorable to the prosecution, the evidence here amounts to a mere modicum. As such, it is insufficient to satisfy the constitutional standard of proof beyond a reasonable doubt,” the opinion stated.
“Some of the State’s facts are not based upon a plain reading of the record. Some of the emotionally-charged language employed by the State in its recitation does not appear in the record. Other statements of fact are actually misstatements of the evidence,” according to the opinion.
With its guilty verdict and sentence, the jury also rejected Bocanegra’s defense that his performance as a caregiver might have been mistaken as a sexual assault, according to the opinion. The opinion also said that the jury verdict puts any caregiver at risk of being imprisoned for providing basic and necessary care, such as changing a diaper.
“The actual combined and cumulative evidence here is so weak that it creates only a suspicion of wrongdoing and, as such, cannot support the jury’s guilty finding or its rejection of the medical-care defense beyond a reasonable doubt,” the two jurists in the majority wrote.
In her dissenting opinion, Justice Sue Walker said the jury was free to determine whether Bocanegra’s care was of a sexual nature or was medical care. The dissenting judge said the majority jurists substituted their own finding of credibility for the jury’s.