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Date: 12-19-2020
Case Style:
Stephen Cortez, Jr. v. The State of Texas
Case Number: 03-18-00751-CR
Judge: Jeff Rose
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: The Honorable Margaret M. Moore
Ms. Rosa Theofanis
The Honorable Stacey M. Soule
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Austin, TX - Criminal defense attorney represented Stephen Cortez, Jr. with a Capital Murder charge.
Sophia Arevalo testified that she had a daughter, J.A., with a man who was
incarcerated shortly after their daughter’s birth. His parents cared for J.A. while Arevalo worked
cleaning houses. Arevalo began dating Cortez in May 2016 when J.A. was two years old.
Cortez’s abuse of J.A.
Cortez, Arevalo, and J.A. lived in an upstairs bedroom of Arevalo’s paternal
grandparents’ house. Cortez, who was unemployed, watched movies in that bedroom all day
while Arevalo went to work. Arevalo’s paternal grandfather testified that when Cortez, Arevalo,
and J.A. lived in his home, they came downstairs only to leave the house or when Arevalo was
cooking.
Over the next few months, Cortez became increasingly abusive with J.A.: hitting
her; gagging her to stop her from crying; placing her in the drawer of a nightstand as
punishment; spraying her with a bottle of water and standing her in front of an air conditioning
unit, sending her body into shock; and tripping her, causing her to fall and bruise her forehead.
Arevalo testified that Cortez treated J.A. differently from his biological children and that Cortez
called J.A. a brat and a whiny kid. Text messages between Arevalo and Cortez were admitted
into evidence. Some messages, sent less than two weeks before J.A.’s death, contained
Arevalo’s complaints about Cortez’s treatment of J.A.:
I didn’t start questioning you or things until my child had nothing but bruises on
her, when her mouth was cut open for weeks, when you sit there and kick her or
when you send her body into shock, sometimes with a smile on your face. . . .
Would you want to see your child like that? How would you feel if someone did
that to your kids? . . . She’s not as bad as you make her seem.
1
The facts are summarized from the testimony and exhibits admitted at trial.
3
. . . .
I see over and over again how different you are with my daughter compared to
your three kids. You say that it’s ‘cause you have to be . . . , but if your kids did
things she did, you wouldn’t react the same way to them. You don’t even put
your hands on your kids. Like when [your biological daughter] took three hours
to eat, you just kept blowing it off and talking all calm to her . . . and then still got
her candy. If it was [J.A.], you would have whooped her ass in the first 10
minutes and wouldn’t have got her candy or took her anywhere.
In response, Cortez contrasted his children’s behavior with J.A.’s, noting that his children
never have been disrespectful the way [J.A.] is. . . . My kids don’t whine and cry
for everything. And if they do, they don’t get it. And when they don’t get it, they
don’t start acting disrespectful and crying and screaming for it and asking
everyone else. . . . I see [J.A.] differently because of how she acts and not being
able to say anything to her without everyone looking at me fucked up, questioning
me, including you.
Arevalo and J.A. became increasingly isolated from family members. Arevalo’s
mother decided to visit J.A. on the afternoon of September 27, 2016, three weeks before J.A. was
killed. She testified that she had been unable to contact Arevalo and had not seen J.A. for two
months. When she arrived at the house, she went upstairs and asked Cortez to see J.A. Cortez
put out his arms and blocked her from walking toward J.A., who was completely covered by a
blanket in her playpen and motionless. Cortez told Arevalo’s mother that she could come back
in a few hours when Arevalo was home from work. Arevalo’s mother testified that when she
returned Cortez and J.A. were gone, and that Arevalo’s paternal grandparents told her that Cortez
took J.A., who was “covered up with a blanket,” but they did not know where Cortez and J.A.
went.
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Family members’ concerns about injury to J.A.
Arevalo’s mother reported her concerns to Child Protective Services, which began
an investigation. Arevalo testified that when a CPS caseworker went to the house to investigate
the report, Cortez hid J.A., who had visible bruises on her back, beneath a futon in the room next
to theirs. For about a week afterward, Cortez, Arevalo, and J.A. hid from investigators by living
in their car, hidden beneath a car cover, and parking the car at an apartment complex in south
Austin where Cortez had lived. During this time, Cortez directed Arevalo to buy a cream or
ointment intended to make the bruises on J.A.’s back less noticeable. Several law-enforcement
agencies became involved in the search for J.A. and sent text and email messages to Arevalo
requesting to see J.A. Arevalo feared that CPS would remove J.A. from her, but she eventually
took J.A. to her aunt’s house, where she allowed a CPS special investigator to see J.A. through a
screened window. The investigator was dissatisfied about being unable to speak with J.A. or
check her body for bruises, but CPS closed the investigation.
On October 17, 2016, the day before J.A. died, her paternal grandparents cared for
her as usual while Arevalo was working. Cortez sent text messages to Arevalo stating,
“Hopefully they don’t make a big deal about her bruises. We can’t really afford another case
right now.” Arevalo replied, “Yeah, I know, I told them she fell when she was outside playing.”
Cortez stated that Arevalo should have just left J.A. with him. Arevalo responded, “I didn’t want
to ask because I know you didn’t want to watch her. I didn’t want you to be uncomfortable,
babe.” Cortez replied, “She just would have stayed in her bed. . . . If you have time, just get her
and say you forgot she had a doctor’s appointment.” Arevalo explained that she could not get
J.A. and said, “She don’t look bad, just the one on her cheek. I don’t think they’ll say anything
unless it’s all the time.”
5
The grandparents noticed J.A.’s injuries. The grandfather saw that J.A. appeared
to have been hit in the teeth, had a bruise on her cheek, and cigarette burns on her feet. He
recalled that J.A. had been crying for two or three days, that she seemed hungry, and that her
stomach looked distended. Arevalo told him that J.A. “had fallen a lot,” but the grandfather
“knew that was all a lie.” He suggested that Arevalo take J.A. to a doctor. The grandparents
recalled that J.A. seemed scared to go with Arevalo when she came to pick up J.A. Both
grandparents testified that J.A. wagged her finger and said “no, no, no” to Arevalo. The
grandmother wanted to keep J.A. but allowed her to go because Arevalo was J.A.’s mother.
Cortez’s texts and phone calls on the day of J.A.’s death
The next day, Arevalo again worked cleaning houses, but she left J.A. with Cortez
instead of taking her to her grandparents’ house. Arevalo testified that Cortez told her not to do
so “[b]ecause of the bruises” on J.A. Arevalo recalled that a particular bruise on J.A.’s forehead
“was from when Stephen [Cortez] tripped her.” Cortez sent text messages to Arevalo while she
was working, including a discussion about a bad dream he had in which she said she no longer
cared for him. Cortez also sent texts that morning to his former girlfriend, the mother of his
three children, discussing the cost and terms of a storage-room rental that they were considering.
Around 2:00 p.m., when Arevalo was putting away supplies at the second house
that she finished cleaning, Cortez called her telling her “to hurry up and get home because [J.A.]
was breathing funny.” After that, Cortez called a friend but did not reach him. Arevalo then
called Cortez and spoke with him while she was driving back home “going about 90 miles an
hour.” Cortez told her only that J.A. “fell out of her playpen” and “something about hitting her
head.” Arevalo asked Cortez to call 911 but “he didn’t respond to that.”
6
When Arevalo arrived, Cortez was outside the house holding J.A. Cortez got in
the rear seat of the car behind Arevalo, who then drove to the hospital. Arevalo testified that she
heard J.A. gasping for air but could not see what was happening. During the drive, Cortez told
Arevalo to report that J.A. “fell down the stairs because no one was going to believe that she fell
out of her playpen and hit her head.” Arevalo testified that when she got J.A. from the backseat
of the car, J.A. felt “lifeless,” and Arevalo believed that J.A. had already passed away. Video
from the hospital emergency room area shows Arevalo running in carrying J.A.
Cortez provides explanations medically inconsistent with J.A.’s injuries
The attending pediatric ER doctor, who “remember[ed] this particular case,”
testified that when he saw J.A. she was not moving, awake, or alert; she had no pulse; and she
had a bruising on her “distended abdomen,” which was “swollen, enlarged, and firm.” ER staff
gave J.A. multiple rounds of medication to try restarting her heart and performed eight rounds of
CPR but were unable to revive her. J.A. was pronounced dead at 2:54 p.m.
Arevalo and Cortez told the ER doctor that J.A. had fallen down four to five steps
onto a linoleum floor. The ER doctor asked Cortez about the bruises on J.A.’s abdomen, and
Cortez “said that he felt like the child was choking after she had fallen down the steps so [he]
started pushing on her stomach trying to perform . . . a version of the Heimlich maneuver.” The
ER doctor testified that Cortez’s explanation did not make sense medically because J.A.’s intraabdominal injuries were caused by blunt-force trauma, “hitting or kicking or stomping on an
abdomen multiple, multiple times would cause those injuries.” Besides J.A.’s distended
abdomen and extensive bruising, the ER doctor noted the presence of blood from J.A.’s genital
7
area that was likely caused by a rupture from “excessive force hitting the abdomen.” A
subsequent CT scan of J.A.’s abdomen showed laceration of her liver.
The medical examiner who conducted J.A.’s autopsy testified that the cause of
J.A.’s death was blunt trauma to the abdomen, causing the vertebra of her back to lacerate her
liver. The medical examiner explained that the liver can sustain this type of injury in high-speed
car accidents and results from “a large amount of force” that “isn’t minimal pushing” but “a very
hard punch.” She noted that about half of the blood volume for J.A.’s body was in the
abdominal cavity. Additionally, J.A. had bruising on her cheek, facial area and hands and
sustained recent tears to the inside of her lip. The medical examiner testified that J.A.’s injuries
“look[ed] like blunt trauma from an assault.” On cross-examination, the medical examiner
denied that tears to the liver could occur through just compressions, stating that “[i]t would have
to be very hard, full body, over the top of the child compressions.” She stated that J.A.’s death
occurred within several minutes of the liver laceration and that the breath sounds from J.A. on
the way to the hospital were likely “agonal breathing,” the body’s “few reflexive breaths” taken
as it “is shutting down” in the dying process.
After J.A. was pronounced dead, Arevalo and Cortez were taken to a family room
inside the hospital where Cortez told Arevalo “to stick with the story about how [J.A.] fell down
the stairs.” Cortez also told her to say that she was there at the house, that he was upstairs, and
that “he came rushing out of the room to come see what happened” after “he heard a loud thud.”
Cortez told a hospital social worker that he was asleep when Arevalo called for him, he came
downstairs, and J.A. was at the bottom of the stairs not breathing. Cortez reported seeing J.A.’s
eyes fluttering and hearing her make a strange noise “like she wanted to talk but could not get the
words out.” He “started pushing on her abdomen to try to see if he could dislodge something if
8
she had choked on something.” Cortez and Arevalo also told another hospital social worker that
J.A. had fallen down the stairs. Arevalo told that social worker that J.A. had been constipated for
days and had been given a laxative for her symptoms.
Later that day, after obtaining a search warrant, police investigators went to the
room where Cortez, Arevalo, and J.A. had been living. The items in the room indicated to
investigators that a full diaper had been removed and that a child had defecated in pajama pants.
Photographs of the room admitted into evidence showed a urine-soaked, balled-up diaper on the
floor, an open package of wet wipes on a bed, and a sheet with fecal and blood stains that
appeared fresh. Other photographs showed fecal matter on a pair of pajama pants, on a wipe,
and on the floor near the playpen. One closer photograph showed a bottle of a product intended
for healing bruises on top of a nightstand. Another photograph showed bloodstains on the
mattress in the playpen.
In the hospital parking lot, Cortez gave a police detective a recorded statement
that was admitted into evidence in which Cortez repeated the story about J.A. falling down some
stairs while he was asleep and Arevalo was home. The police detective asked a crime scene
specialist at the scene to take photographs of Cortez’s hands and arms, which were admitted into
evidence. The crime scene specialist testified that the top of Cortez’s right hand appeared
swollen and that the knuckle area of Cortez’s right hand appeared bigger compared to his left.
The day after J.A.’s death, Cortez performed web searches for “Austin homicide
lawyer,” “how to browse incognito mode,” “private mode,” “warrants on the web,” and “Travis
County medical examiner, why is it so screwed up[?]” The next day, Cortez’s web history had a
news story on “mother’s boyfriend assaults two-year old,” a search for “felony crimes by class,”
and “warrant search.” Before his arrest, Cortez directed Arevalo to prepare a written timeline of
9
events on the date of J.A.’s death, including when Arevalo got home, when she was cooking, and
“when it was that [J.A.] fell.” Arevalo testified that when the marshals came for Cortez, he
crumbled up the timeline “set it on fire and put it in the kitchen sink.” Police detectives
interviewed the grandparents who were living with Cortez, Arevalo, and J.A. The grandparents’
responses disproved the accounts that J.A. was injured when Arevalo was at their home and that
Arevalo found J.A. at the bottom of the stairs after a fall. The month before Cortez’s trial,
Arevalo gave a voluntary statement to a police detective recanting the story about J.A. falling
down the stairs and stating that Cortez abused her and J.A.
Exclusion of testimony from Cortez’s expert
About a year and a half after J.A.’s death, Cortez met with psychologist Dr. John
Matthew Fabian. Cortez sought to present expert testimony from Dr. Fabian during guiltinnocence about Cortez’s reported “dissociation” episode during J.A.’s killing. Dr. Fabian
testified in a voir dire examination before jury selection. He stated that he examined Cortez in
May, July, September, and October 2018 and that he created a skeletal report, which was “close
to completion.” He concluded that Cortez had a learning disability; attention-deficithyperactivity disorder (ADHD); post-traumatic-stress disorder (PTSD); major depressive
disorder; substance-abuse disorders involving methamphetamine, cannabis, and alcohol; and
personality disorder. Dr. Fabian noted, “There is evidence of malingering as well.”
Defense counsel asked how Cortez’s mental illnesses could rebut intent or be
relevant evidence of intent for a jury in a criminal homicide case. Dr. Fabian opined that “the
significant factors or mental health issues around the time of the offense that could compromise
the issue that you’re raising would be his history of PTSD, and potential dissociative state, and
10
his history of learning disability, and brain dysfunction.” Dr. Fabian said that a “dissociative
state” is “basically when an individual has a lack of conscious awareness . . . almost like an out
of mind body experience. Their reality is out of check so to speak, so they may go in and out of
conscious awareness.” Dr. Fabian denied having the opinion that Cortez was fundamentally
incapable of forming intent on the day of the offense, but he agreed that Cortez was “at some
level likely to have episodes of dissociation.” Dr. Fabian also agreed that it is possible for
someone to be unable to meet the definition of not guilty by reason of insanity but still have
PTSD-associated episodes where they are subjectively unaware of what is going on around them.
On cross-examination by the prosecutor, Dr. Fabian testified, “There is evidence
of malingering in this case, which makes it very complicated.” He acknowledged that
counseling staff at the jail observed Cortez changing his body, demeanor, and behavior when
they approached, knowing that he was about to speak with them. Dr. Fabian stated that Cortez
“was a bit like that the first time I examined him, and I did note my concerns to his attorney. As
I saw [Cortez] more frequently, he seemed to be more genuine in his reports, symptoms, and his
evaluation process.” Dr. Fabian stated, “I did rule out basically bipolar disorder, and again the
psychosis despite his hallucinations reported. In my opinion, they were exaggerated.” As to
Cortez’s “potential” dissociative state, Dr. Fabian testified that Cortez
talked to me about the nature of the offense of having some type of nightmare
flashback crying for help, seeing pictures of his brother dying, and trying to
squeeze cancer out of his brother, and trying to do that at the time of this offense
with this alleged victim. So he made, I guess, an alignment experience with his
brother to this child victim that he injured and eventually took the life of. So
there were potential, because, you know, this is what he’s telling me, dissociative
qualities to his report and mental state at the time of the offense.
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The prosecutor asked, “[W]hen it comes to what he was thinking at that particular moment,
we’re going off of what he told you?” Dr. Fabian agreed, “That is correct.”
On redirect, defense counsel pointed out that the indictment included an allegation
of criminal negligence, concerning “things of which a person ought to be aware,” and asked Dr.
Fabian whether there were aspects of his diagnosis of Cortez that directly addressed the question
of awareness. Dr. Fabian answered, “Yes, I would say so.”
Unconvinced, the district court excluded Dr. Fabian’s testimony from the guiltinnocence phase of trial because it was “all general” and there was nothing specific to indicate
that, even with these disorders and under the circumstances of this case, the requisite mens rea
was negated. The district court also referenced the fact that Cortez had been noted as a
malingerer in jail records “and by Dr. Fabian himself.” Understanding that defense counsel
disagreed with the ruling, the district court allowed further questioning “to develop a record for
appellate purposes.” Defense counsel then asked:
Q. Doctor, with regard to the issue of negating mens rea, specifically, what in
your assessment of Stephen [Cortez] informs that question of awareness of
actions?”
A. On page 11 of my report, basically, your client tells me that he’s having
nightmares, and he’s squishing the cancer out of the alleged victim before it
squishes everything else and before it takes other’s lives. So, basically, he felt he
needed to do that with his brother because his brother died of cancer, and he
reported nightmares and flashbacks at the moment that he was squishing cancer
out of this alleged victim believing that she had it. . . . [Y]our client’s discussion
with me about squishing the cancer out of her, in my opinion, due to his mental
illness and dissociative qualities, especially related to post traumatic stress, would
have some relevance to intent.
The Court: All right. Thank you. You may be excused, Doctor.
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Cortez’s testimony during trial
Cortez testified in his defense and stated that while he was in jail, he had “a new
diagnosis” of “PTSD and dissociation disorder.” Cortez admitted that he caused J.A.’s death.
But he denied being “aware of a substantial or unjustifiable risk that death would occur” because
I have—things are wrong with my brain. I have hallucinations. I have paranoia
that leads to delusions. I have paralysis. And I’m under—when things start to get
really stressful, everything in my head starts getting confused. And there’s times
where I don’t know where I am or who I am or what’s going on.
Cortez described some of his prior hallucinatory experiences, none of which involved him killing
anyone. However, he testified that on the day of J.A.’s death,
I had a hallucination that I was with my brother in the hospital and he was dying
of stomach cancer again and I couldn’t sit there and watch him go through it again
and not do anything. So in my mind, I thought that if I could squish the cancer, it
would just go away and he would be okay.
Cortez said that he realized J.A.’s death was due to some dissociation “[w]hen I explained it to
the psych doctor,” who “explained to me that that’s what it was.” Cortez was asked whether he
also recalled being diagnosed as a malingerer:
Q. Mr. Cortez, malingering is the fabricating of symptoms of mental or physical
disorders for a variety of reasons. Do you think you’re a malingerer?
A. I don’t think so.
Q. Among all the diagnoses you talked about, do you remember one of them
being that you’re a malingerer?
A. No.
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Cortez denied remembering much about the morning of J.A.’s death. His first
memory was seeing J.A. on the bed trying to sit up, assisting her, and thinking that she wanted to
lie down. Cortez then described J.A.’s diaper change:
And when I smelled the poo[], I had pulled off her pants and I was still trying to
talk to her. And when I started wiping her leg, she stopped talking. So when she
stopped talking, I leaned closer and I heard that she was breathing weird and I saw
that there was like a bubbly stuff coming out of her mouth. And so I had turned
her on her side because I didn’t know if it was water or what it was. And then I
called [Arevalo].
The prosecutor asked Cortez whether just before those events, J.A. removed her own diaper and
put on her pants herself:
Q. She took her own diaper off?
A. Yes.
Q. And she put her own pants back on?
A. Yes.
Q. Without a diaper?
A. Yes. She usually just pulled her pants down a little bit to take her diaper off.
The prosecutor asked how Cortez would know that J.A. had done those things—or that he had
not done those things in his “dissociative state”—given that the first thing he remembered after
his “episode” was seeing J.A. on the bed and cleaning her up. Cortez then clarified that he was
assuming J.A. had done those things for herself and that he did not remember doing them.
Cortez also did not remember sending text messages to Arevalo that morning.
The prosecutor asked Cortez why that was so:
14
Q. But then you said that your episodes are brought on by really stressful events.
So what could have been so stressful while you were sleeping that made you
forget you sent text messages?
A. With disassociation [sic] it’s—it doesn’t—just not when you’re—when—like
at that time. It’s over a period of time.
Cortez said that he “only remember[ed] bits and pieces” of events since the CPS investigation.
He acknowledged that he never told police or hospital staff that he thought he was “squishing”
cancer out of his brother when he was applying force to J.A.’s stomach.
Cortez further acknowledged placing J.A. in a drawer, spraying her with water,
standing her in front of an air-conditioning unit, spanking her, and gagging her. On direct
examination by defense counsel, Cortez testified that he also believed he had hit J.A. with a belt,
but on cross, Cortez testified that he did not remember doing that. When asked about his own
children, Cortez denied ever placing any of them in a nightstand drawer, spraying them in the
face with a water bottle, punching them, or hitting them with a belt. The prosecutor then asked
Cortez, “You not only watched but you participated in torturing a two-year-old child. That’s
what you’re telling this jury?” He answered, “Yes.” Cortez denied having any dissociative
episodes while he was committing other abusive acts against J.A., just the one that ended her life.
The jury found Cortez guilty of capital murder, and the district court assessed
punishment and rendered judgment on the verdict. This appeal followed.
DISCUSSION
Exclusion of Dr. Fabian’s testimony
In his only appellate issue, Cortez contends that the district court abused its
discretion by excluding Dr. Fabian’s expert testimony as to Cortez’s mental health, proffered in
15
support of the theory that Cortez did not intentionally or knowingly kill J.A. because of a
dissociative episode. “[T]he trial judge has discretion to determine whether evidence of mental
illness may be presented to negate the element of mens rea, or whether the evidence should be
excluded on special grounds.” Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005).
We consider a trial court’s evidentiary ruling excluding evidence in light of what was before the
trial court when it ruled, and we uphold the trial court’s ruling if it lies within the zone of
reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
Evidence of a defendant’s history of mental illness may be admissible to negate
the mens rea element of the offense. Jackson, 160 S.W.3d at 574. But such evidence may be
excluded under evidentiary rules or if the evidence “does not truly negate the required mens rea.”
Ruffin v. State, 270 S.W.3d 586, 595–96 (Tex. Crim. App. 2008). The mens rea required for the
offense of murder is intentionally or knowingly causing the death of an individual or intending to
cause serious bodily injury and committing an act clearly dangerous to human life that causes the
death of an individual. See Tex. Penal Code § 19.02(b)(1), (2).
As support for his contention that Dr. Fabian’s testimony should have been
admitted, Cortez relies on the “very similar” situation presented in Ruffin. In Ruffin, a defendant
whose mental health had been noticeably deteriorating for months engaged in an overnight
armed standoff with police on his property, shot at them sporadically, and yelled “bizarre and
nonsensical” comments but did not injure them. 270 S.W.3d at 588-89. Ruffin testified that
during the standoff, he thought he was shooting at Muslims who were “hunting” him. Id. at 590.
He contended that he was guilty only of second-degree aggravated assault, not first-degree
aggravated assault on police. Id. at 591.
16
Ruffin’s psychologist opined that Ruffin was not legally insane but psychotic and
“suffering from psychotic symptoms such as hearing or seeing things that did not exist.” Id. at
590. According to that psychologist, Ruffin “was both delusional and paranoid” on the date of
the offense, “was not fully aware of the effects his behavior was having on other people,” and
“had a ‘diminished capacity’ to make rational judgments.” Id. The trial court excluded the
expert’s testimony, and the court of appeals affirmed. Id. at 591.
The Court of Criminal Appeals reversed the court of appeals’ judgment, rejecting
the premise that evidence of a defendant’s mental illness or defect negating the mens rea element
of an offense is admissible only in a murder trial. Id. at 591, 596. The Court stated that
testimony from Ruffin’s expert was relevant to the issue of whether Ruffin intended to shoot at
police or whether “he believed that he was shooting at Muslims or some other figment of his
mind” because of a mental disease and delusions as a result of that disease. Id. at 596. However,
the Court also stated that the court of appeals should have the opportunity to consider on remand
(1) whether the expert’s testimony was properly excluded under Texas Rule of Evidence 403
because it might confuse the jury as pertaining to an insanity defense that was not raised and,
(2) if appropriate, whether Ruffin was harmed by exclusion of the expert’s testimony. Id. at 597.
Here, unlike the expert’s testimony in Ruffin, Dr. Fabian’s testimony did not
“truly negate the required mens rea.” See id. at 595–96. As the district court correctly observed,
Dr. Fabian’s testimony was “general.” He stated that it is possible for someone who does not
meet the definition of not guilty by reason of insanity to have PTSD-associated episodes where
they are subjectively unaware of what is going on around them. And after the district court
ruled, Dr. Fabian added that Cortez’s discussion with him “about squishing the cancer out of
[J.A.], in my opinion, due to his mental illness and dissociative qualities, especially related to
17
post traumatic stress, would have some relevance to intent.” But Dr. Fabian denied having the
opinion that Cortez was fundamentally incapable of forming intent on the day of the offense.
In Ruffin, the psychologist testified definitively about Ruffin’s mental state on the
date of the shooting, opining that Ruffin was suffering from psychotic symptoms, was delusional
and paranoid, and was not fully aware of the effects of his behavior on others. Id. at 590. By
contrast, Dr. Fabian did not testify that Cortez was having a dissociative episode while killing
J.A. that negated his ability to act knowingly or with intent at the time of the offense. Rather, Dr.
Fabian told the district court that at some level Cortez was “likely” to have episodes of
dissociation; there were “potential” dissociative qualities to Cortez’s report and mental state at
the time of the offense; Cortez’s “potential” dissociative state around the time of the offense
could compromise the intent issue; and he “guess[ed]” that Cortez made an alignment experience
with his brother to J.A. Moreover, Dr. Fabian testified that this case was made “very
complicated” by evidence of Cortez’s malingering and exaggeration. Those complicating factors
were not present in Ruffin. Finally, Dr. Fabian acknowledged relying on self-reporting from
Cortez—who “seemed more genuine” only in later visits—about what Cortez was thinking at the
particular moment of the offense.
Given this evidence, the district court could have concluded, within the zone of
reasonable disagreement, that Dr. Fabian’s proffered testimony was excludable because it did not
“truly negate” or “directly rebut” the required mens rea, and thus, that it was not relevant to
Cortez’s mental state at the time of the murder. See id. at 588, 595–96 (holding that “testimony
of a mental disease or defect that directly rebuts the particular mens rea necessary for the charged
offense is relevant and admissible” but “may also be excluded if it does not truly negate the
required mens rea”); Mays v. State, 318 S.W.3d 368, 381-82 (Tex. Crim. App. 2010) (concluding
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that admission of expert testimony during guilt-innocence phase as to defendant’s mental illness
was not required because it went only to his paranoia and perceived mistreatment and “did not
directly rebut his culpable mens rea”); see also Billodeau, 277 S.W.3d at 39. Cortez has not
shown that exclusion of Dr. Fabian’s testimony was an abuse of the district court’s discretion.
Even if the exclusion of Dr. Fabian’s testimony were error, Cortez was not
harmed by its exclusion. Exclusion of evidence in a criminal trial should be disregarded unless it
is constitutional error or if it is non-constitutional error that substantially affects the defendant’s
rights. Tex. R. App. P. 44.2(a)–(b). When a defendant’s evidence is excluded, it is
constitutional error “only if the evidence forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d 657,
665 (Tex. Crim. App. 2002). If not, it is non-constitutional error. See id. at 666 (concluding that
because erroneous exclusion of evidence “did not prevent appellant from presenting a defense”
such error “was not of constitutional dimension”).
Non-constitutional error affects a substantial right if “the error had substantial and
injurious effect or influence in determining the jury’s verdict.” Kotteakos v. United States, 328
U.S. 750, 776 (1945); King v. State, 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997). We should
not overturn a conviction for non-constitutional error if, after examining the record as whole, we
have “fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson
v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Here, Cortez contends that if his explanation for his action—i.e., his dissociative
state during the killing and his hallucination that he was “squish[ing]” cancer out of his
brother—had been supported by Dr. Fabian, then the jury could have found that he did not act
intentionally or knowingly at the time of the offense. And then the jury could have considered
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the lesser-included offenses of criminally negligent homicide or felony murder. But as we have
noted, Dr. Fabian discussed dissociation only as a “potential” mental state during Cortez’s
commission of the offense and it was Dr. Fabian’s “guess” that Cortez had made an alignment
experience with his brother to J.A. Further, Dr. Fabian expressly denied having the opinion that
Cortez was fundamentally incapable of forming intent on the day of the offense.
Significantly, the evidence presented at trial was inconsistent with Cortez’s claim
that he experienced a dissociative episode when he killed J.A. Cortez sent texts intermittently to
Arevalo while she was working that morning and sent texts to his former girlfriend about
specific details of a storage room rental. He gave inconsistent testimony about his first memory
after the episode, saying that J.A. removed her own diaper and put on her own pants before he
saw her on the bed and cleaned her up and then saying that he just assumed J.A. had done those
things. He made no mention of dissociation or hallucination when he called Arevalo to report
that J.A. was “breathing funny” after falling out of her playpen and hitting her head. On the way
to the hospital, he told Arevalo to say that J.A. “fell down the stairs because no one was going to
believe that she fell out of her playpen and hit her head.” And immediately after J.A. died, he
told a social worker, a doctor, and a detective that J.A. injured herself falling down the stairs
while he was asleep and Arevalo was home, but he never referenced any dissociation or
hallucination.
Additionally, unlike Ruffin, who had no history of attempting to harm police
before he shot at them, Cortez had a pattern of committing abusive acts against J.A.—a two-year
old child that he considered bratty, whiny, and disrespectful—in the weeks preceding her death.
Cortez denied experiencing any dissociation when he committed those abusive acts against her.
Further, the ER doctor and the medical examiner determined that the injuries inflicted on J.A.
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were caused by blunt trauma typical of high-speed car accidents, “hitting or kicking or stomping
on an abdomen multiple, multiple times,” “excessive force hitting the abdomen,” or “a very hard
punch.” The jury saw photographs taken by a crime-scene specialist showing swelling to the
knuckle area of Cortez’s right hand and its larger appearance compared to his left. None of this
evidence fits with the “squish[ing]” of J.A.’s body that Cortez testified he had done and that he
reported to Dr. Fabian. The jury assessed, and implicitly rejected, the credibility of Cortez’s
testimony that he had a dissociative episode at the time of the offense and that he “squish[ed]”
J.A. to death.
Considering the entirety of the evidence at trial, we conclude that even if the
district court’s decision to exclude Dr. Fabian’s testimony were non-constitutional error, it did
not have a substantial or injurious effect or influence on the jury’s verdict. See Kotteakos, 328
U.S. at 776; King, 953 S.W. 2d at 271; see also Tex. R. App. P. 44.2(b).
Moreover, through his direct testimony, Cortez was able to present to the jury the
substance of his theory that he was dissociated during J.A.’s killing:
I had a hallucination that I was with my brother in the hospital and he was dying
of stomach cancer again and I couldn’t sit there and watch him go through it again
and not do anything. So in my mind, I thought that if I could squish the cancer, it
would just go away and he would be okay.
A defendant’s inability to present his case “to the extent and in the form he desired is not
prejudicial where . . . he was not prevented from presenting the substance of his defense to the
jury.” See Potier, 68 S.W.3d at 666. Accordingly, even if exclusion of Dr. Fabian’s testimony
were error, it was not constitutional error effectively precluding Cortez from presenting a
defense. See id. at 665; see also Tex. R. App. P. 44.2(a). We overrule Cortez’s appellate issue.
Outcome: We affirm the district court’s judgment of conviction.
Plaintiff's Experts:
Defendant's Experts:
Comments: