Opinion
NO. WR-91,336-01
10-11-2023
EX PARTE David Noe SANCHEZ, Applicant
Calixtro Villarreal, Jr., Rio Grande City, for Applicant.
Calixtro Villarreal, Jr., Rio Grande City, for Applicant.
Keller, P.J., filed a concurring opinion in which Yeary and Slaughter, JJ., joined.
Applicant was the father of a two-and-a-half-year-old girl, Davynna, who died. He pled guilty to knowing or intentional injury to a child and agreed to testify against Davynna's mother in exchange for the State agreeing to dismiss a capital murder charge against him and ask for a sentence of no more than 45 years.
The Court remands the case to the habeas court for more information regarding an incomplete letter in the record and for original photos or better copies of photos of Davynna. I agree with the decision to remand. I write to explain why the remand is necessary.
After a live hearing, over the State's opposition, the habeas court found that Applicant's plea was involuntary because his attorney failed to tell him about a police interview in which the child's mother, Melissa, admitted that Applicant did not beat Davynna. Applicant says he would have insisted on a trial if he had known about the interview, which he says "exonerated" him. But Applicant pled guilty to injury to a child by omission, not by commission. What he pled guilty to was, "failing to provide or to seek adequate and/or timely medical care or treatment" when he had a duty to do so. The finding that Applicant's plea was involuntary is not supported by the record as it currently stands.
Applicant also claims his attorney was ineffective because he failed to pursue a lesser offense with a lesser mens rea. To address that possibility, we need to know what Applicant knew about Davynna's condition in order to determine whether the evidence showed that he acted recklessly or negligently, rather that knowingly or intentionally. The record includes the following.
CPS took Davynna away from Melissa and Applicant at birth and placed her with relatives. Over her cousin's pleadings to let her keep Davynna, Melissa took her back when she turned two and abused her from that day until the day she died. For seven months, Melissa starved her, beat her, and kept water from her, giving her only half a cup once a day. According to Melissa, Davynna was "stubborn" and "spoiled," she "misbehaved," and she would "intentionally make [Melissa] mad." For punishment, Melissa initially said that "instead of spanking or beating her up," she made Davynna kneel on the floor for thirty minutes to an hour at a time, three times a day. But Melissa eventually admitted that she would "just swing away" at Davynna and hit her "all over her body." Melissa would beat her daily, because Davynna "wouldn't listen" to her. At the time Davynna died, she was severely malnourished, she had extensive hair loss, she had bruises of differing ages on her legs, stomach, and back, she had a cut on her chin–a "big old hole"–that was consistent with her mouth being tied shut, and she had numerous scabs. She had an abdominal hemorrhage, scalp hemorrhages, and a subdural hemorrhage. She had bilateral bronchopneumonia. Her left arm had an undisplaced fracture. Instead of gaining weight, as children normally do, she had lost a third of her body weight in the previous four months and weighed about the same as she had when she turned one year old. According to Melissa, Davynna fell out of a pickup truck seven days before she died, and she had not spoken, walked, or eaten since the fall. Melissa thought maybe she had broken her neck but "thought she was going to get well by herself" and didn't take her to the doctor. After the alleged fall, she became like a "vegetable," and Melissa "stretched" her so she wouldn't stay like a vegetable. The postmortem report listed cause of death as abusive head trauma, blunt abdominal trauma, and malnutrition.
During the interview, Melissa gave conflicting accounts of what happened. She eventually admitted that the injuries Davynna suffered a week before her death were not caused by falling out of a truck.
Davynna died on December 17, 2010. Applicant acknowledged at the hearing on his original plea that he had not given Davynna food or water since September but said Melissa said "she would do that." Applicant testified at the habeas hearing that he had not seen Davynna since Thanksgiving. But, without addressing Thanksgiving specifically, Melissa said in the interview that he usually came home about 5:30 and that he would go into the room and see Davynna when he got home. And Davynna slept on a pallet in the same bedroom as Applicant and Melissa. Also, in the police interview, Melissa said that Applicant was home the day Davynna allegedly fell (a week before her death) but had gone to the store. When he came home from the store, Davynna was "all bloody," and he told Melissa to take her to the hospital, but Melissa refused. There were neighbors who would have testified that Applicant was home some during the daytime, and that when Applicant showed up on the day of the death, he said, "She never fed her or gave her water. I should have done something about it." One of Applicant's sisters said that when Davynna was being taken to the hospital the day she died, the sister heard Applicant say that Melissa would mistreat the child and wouldn't give her food or water. There was a cinder block in front of the refrigerator, which Applicant said was always there to keep the door closed.
Applicant's trial counsel hired an expert witness in the hope that she would be able to testify about the cause of Davynna's death and about Applicant's mens rea. The expert told counsel that any report would not be helpful, though, and she would not be able to discount malnutrition as contributing to the death. She never wrote a report or testified.
The record as it now exists fully supports a conclusion that Applicant knew that Davynna needed medical care and failed to get it for her. In fact, Melissa said in the interview that the night before Davynna died, he told Melissa to take her to the hospital, but Melissa refused, and he did not take her himself. She refused because she thought people would blame her because of the way Davynna looked–"skinny," "no hair," "neglected," and "all the bruises." But the habeas court has recommended that Applicant be granted relief, and there is evidence missing from the record that might bear on Applicant's claims. In deference to the habeas court, which spent considerable time addressing Applicant's claims, I would remand not only for that court to provide the items requested, but also for it to address the effect of the fact that Applicant's plea was to injury to a child by omission rather than by commission.