Opinion
NO. 03-18-00751-CR
11-05-2020
Stephen Cortez, Jr., Appellant v. The State of Texas, Appellee
FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-16-302003 , THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING MEMORANDUM OPINION
A jury found Stephen Cortez, Jr. guilty of capital murder of a child under age ten. See Tex. Penal Code § 19.03(a)(8). The State did not seek the death penalty, and Cortez received an automatic sentence of life without parole. Id. § 12.31(a)(2) (providing that defendant convicted of capital felony in case where State does not seek death penalty shall be punished by imprisonment for life without parole if defendant was age eighteen or older when he committed offense). On appeal, Cortez contends that the district court abused its discretion by excluding expert testimony on his mental health proffered in support of his theory that he did not intentionally or knowingly cause the child's death. We will affirm the district court's judgment of conviction.
BACKGROUND
The facts are summarized from the testimony and exhibits admitted at trial.
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.
. . . .In response, Cortez contrasted his children's behavior with J.A.'s, noting that his children
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.
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.
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."
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."
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 intra-abdominal 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 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 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 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 guilt-innocence 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-deficit-hyperactivity 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 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.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 guilt-innocence 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.
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.
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?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.
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.
Cortez also did not remember sending text messages to Arevalo that morning. The prosecutor asked Cortez why that was so:
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?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.
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 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 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.
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 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 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 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. 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.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: November 5, 2020 Do Not Publish