Mimesis Law
9 March 2021

Calub Bocanegra: No Evidence, No Conviction

February 28, 2017 (Fault Lines) – There is one big truth in the American criminal justice system. Average Americans don’t care about justice because they aren’t criminals. You did the crime, you do the time. Wrongful convictions make for good headlines, but at some point somebody has to ask why they keep happening. Bad prosecutors and apathetic judges certainly contribute, but the real problem is the citizenry.

Calub Bocanegra got a taste of this first-hand when a jury of his peers convicted him of sexual assault on a child. If not for the Second Court of Appeals in Fort Worth, Texas, Bocanegra would be another hopeless prisoner convicted of a crime based on the charge rather than any real evidence.

A certain number of people don’t really care how much or how little evidence there was in a case like this. If a child was sexually assaulted, someone has to burn. What if no sexual assault occurred? Unfortunately, the vast majority of those who live in the land of the free and home of the brave still want somebody to burn, because rape. And the children.

The 102-page opinion, authored by Justice Bonnie Sudderth, sets out a nightmare scenario. In a trial that took just a few hours of actual evidence presentation, Bocanegra was accused of sexually assaulting his young stepdaughter, Amy. The case describes a fairly common set of facts, turned into a dire crime by a rush to judgment. And then just a wrong judgment. When Bocanegra began living with Mandy, Amy’s mother, he quickly had to adapt to life with a baby girl.

Although Bocanegra, a young man who had never before raised a child, was initially uncomfortable with the task of changing diapers, eventually he joined in the parental functions of bathing Amy, feeding her, and changing her diapers.

Amy often wet herself and suffered from chronic irritation around her genitals. Her parents and other family members had to apply diaper rash cream, a relatively normal thing for babies. Mandy and Bocanegra eventually split up.

One night, Amy made what is referred to in Texas law as an “outcry” or a statement about a sexual assault. It started with her ongoing attempts to avoid sleeping in her room at night alone.

According to Mandy, when she asked Amy why she was scared to stay in her room at night, Amy offered various reasons. Amy would say, “[e]ither it was dark or that — Anything that would get her out of her room to sleep with us.” But on this occasion, when Mandy asked Amy why, Amy said that her dad had touched her “cookie” and that “it hurt [her] tummy.”

That’s pretty much the case, according to the Court of Appeals. A four-year-old makes a vague accusation with a clear motive to stretch the truth. The Tarrant County District Attorney’s Office knew if they were going to gamble a conviction on a weak case, do it on a sex case. And especially a child sex case.

A physical examination found no evidence of sexual assault. The examining nurse took a statement from Amy that didn’t actually support sexual assault. Mandy eventually came to believe her daughter had not been assaulted, because Amy changed her story before the trial began. When Amy testified, she didn’t offer any information about the alleged incident, her prior statements, or any conversations about the case she had with the prosecutor.

Winning a case on a sufficiency of the evidence argument is next to impossible. You already lost in front of a jury, which was sworn to consider all of the evidence. The appellate courts view the case on appeal through the eyes of the winner, which wasn’t you. The chances of that court telling everyone a jury was crazy to convict you is right around zero.

Except not in this case. Everyone has their limits. In child sexual assault cases, the smallest victims warrant the biggest sentences on the scantest of evidence. But even in those cases, there is a limit to what a court will accept in support of putting someone away for decades. And in this case, the Court hit its limit.

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.

I doubt too many people will take the time to read an opinion over 100 pages long. But there is little doubt just the summary here has a number of people up in arms. Think of the danger of letting someone who might have assaulted a child just… just… walk free?

The Court of Appeals was aware of how dangerous this case could be. But in a wise appeal to self-preservation, the Court pointed out why allowing a case like this to go forward should matter to all you people out there not yet charged with sexual assault on a child.

To hold that this particular outcry alone—without any other evidence to support the allegation that a crime was committed—puts every parent, grandparent, sibling, daycare worker, or other caregiver of any kind at risk of being imprisoned for performing a basic and necessary function in the care of a child. The liberty of every person who changes a dirty diaper—thoroughly, properly, and hygienically—when doing so necessarily requires the touching of a child’s genitals and in certain circumstances, causes pain to a child by virtue of hurried, clumsy, or rough handling, or by cinching a diaper too tightly around a child’s abdomen, is at peril should the child later speak of the pain or discomfort he or she experienced during the diaper change.

As much as you might want to make sure even somebody you think assaulted a child gets locked up in jail, that gets a lot less appealing when you realize maybe that person is you. One might wonder how this could happen. Prosecutors certainly contributed.

“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.

But all of the blame can’t be laid at the feet of zealous prosecutors. Sure, they knew they had a slam dunk because a little kid was the victim. But what about the jury who found somebody guilty without a shred of real evidence? The dissent accuses the majority of substituting its own findings of credibility for the jury’s. But maybe that’s a better option than sending a guy to the slammer for a quarter century for changing a diaper.


2 Comments on this post.

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  • bacchys
    1 March 2017 at 8:32 am - Reply

    I agree the jury holds considerable responsibility in this case and many others. They are supposed to be a bulwark against government tyranny, not a mob slavering to burn at the stake whoever the witchhunter…, er, prosecutor points at.

    At the same time, what are the institutions whose role is to police the legal industry going to do about prosecutors who misstate facts and rely on emotion to win a case with zero evidence to support a conviction?

  • Anonymous
    4 March 2017 at 1:58 pm - Reply

    Thank you for this, I’m glad someone is finally seeing the faults in our system.