Five testimonies were heard during the second day of the criminal case against Albert Mendez, Jr. on Wednesday, August 3, 2011 in the 32nd Judicial District Court at the Nolan County Courthouse.
A competency hearing was held prior to the jury’s entry to determine if the alleged victim was capable to take the stand for the case, which came about from an alleged incident which took place in the early morning hours on Jan. 17, 2010 at Mendez’s residence at 702 W. New Mexico in Sweetwater. The victim was nine years old at the time.
Mendez was indicted on charges of aggravated sexual assault of a child, indecency with a child by contact and indecency with a child by exposure, to which he pled not guilty to all three counts during the start of the case on Tuesday afternoon, Aug. 2, 2011.
The victim ended up taking the stand first to testify on Wednesday morning, and recalled the night in question to the jury. She was in the living room with her two younger siblings who fell asleep when Mendez came home and eventually touched her inappropriately, took her bottom clothing off and kissed her, recalling the smell of beer as Mendez had been drinking earlier.
32nd District Attorney Ann Reed used evidence of a photo of the living room to determine Mendez’s and the victim's placement in the living room on the love seat and couches as the episode unfolded and following when Anna Mendez, the victim's mother, found the two of them under a blanket. Other evidence submitted by the state was a diagram of the body in which the victim had to identify where she was touched.
The jury then exited the room for a brief time for the attorneys to determine if other acts—around 11 sexual encounters spanning a wide amount of time—could be referenced in the case and questioning of the victim. Presiding Judge Glen Harrison allowed for the prior relationships to be considered.
Defense attorney Jeff Propst then asked the victim about what occurred, including her interview with the West Texas Children’s Advocacy Center (WTCAC) interviewer Peggy Parrott and her conflicting stories as to who visited her house when she moved to live with her grandparents with her family. The defense also asked about the victim's support group who was in the courtroom and their relation to her.
The defense made its way to the concept of lying, in that in some particular instances she lied to make her mother happy. The victim told the state, however, the lying was in an instance of a pizza dinner which regarded Mendez.
The majority of the testimonies heard in the day—over two hours—came next from Anna Mendez. She said she had been married to Mendez for four years and lived with him and her three children until being ordered by the court to live with their biological father in May of this year.
Anna Mendez stated that while she doesn’t recall everything, she remembers some parts of what took place early on Jan. 17, 2010. She said when she found her daughter and Mendez together, she immediately reacted and called the cops and separated them. But as testimony continued, she couldn’t recall everything that was recorded but stated that she wanted the truth to come out from the night of the incident.
Her anger over the criminal episode stemmed from having a family member being raped and recalled that in the heat of the moment. The state brought in the statement she made to Sweetwater Police Department (SPD) Detective Lance Richburg, but vaguely remembered some of the events she wrote down in the statement though she was certain the writing was hers. As they went through her recorded account of the night in question and her trips to hospitals in Sweetwater and Abilene, Anna Mendez could only recollect some parts yet didn’t remember one instance of speaking to the nurse in Abilene.
When the defense asked Anna Mendez why she had a problem with Mendez’s drinking, she said he couldn’t handle alcohol and recalled yet another family memory of a relative being run over by a drunk driver—which also enraged her. The defense then asked Anna Mendez a series of questions as to what she said to SPD officer Matt Counts, but couldn’t remember some instances, including the incident itself with Mendez and her daughter.
She did, however, recall some facts and remembered calling Mendez’s brother and friend following her finding of Mendez with her daughter. The defense brought up the issue of her calling the cops before she asked her daughter what happened, and when Anna Mendez was asked why she told Officer Counts what she saw, she then said that she couldn’t say she saw what actually happened.
Anna Mendez has never been threatened with jail time as a result of her conflicting statements, but she expressed her fear of being incarcerated due to not seeing her kids. Though the defense was making it seem as if her verbal and written accounts varied, Anna Mendez knew that while she didn’t remember, she knew that she did write down what she recalled at the time.
She knew one thing was certain, however, that her assumption on what she saw that night made her sick and “felt wrong”. Anna stated that she now lives with Mendez again, but they have never discussed the case before or presently. As the defense questioned the validity of Anna Mendez’s statements and had her admit that some of what she recalled were lies, the state found itself confused by Anna Mendez and eventually broke down the written statement to determine what was true and false, and what was assumed that night.
Following a lunchtime recess, SPD Detective Lance Richburg offered testimony, that while not on duty the night of the incident, he was the on-call investigator for the week, receiving a call around 2:49 a.m. on Jan. 17, 2010 to meet the victim and Anna Mendez at the Rolling Plains Memorial Hospital emergency room.
Upon his arrival, Richburg was briefed again and spoke with a RPMH nurse who then contacted WTCAC personnel. The victim was taken back by WTCAC Executive Director Teresa Zarate and Richburg spoke with Anna Mendez in a waiting room; eventually the four individuals went to Hendrick Medical Center in Abilene as the victim would need the SANE exam performed on her.
A nurse would come to take the victim for testing as Anna Mendez gave a written statement to Richburg in the Abilene waiting room. The nurse handed the kit to Richburg and they all headed back to Sweetwater. Richburg then took the SANE kit to the evidence room once Anna Mendez and her daughter left.
Richburg noted that the victim had a very quiet demeanor in the beginning and while she slightly opened up to him, she still seemed upset. He also stated that the written and verbal statements given by Anna Mendez were both consistent.
The defense noted that Anna Mendez, on three occasions, went back to check on the victim and Mendez only because her earlier encounters didn’t seem right and called police on the third check. When the statement was made that the victim was sitting on Mendez’s lap, Richburg said he didn’t initially deem it to be a sexual encounter due to the fact that he was unaware of what the allegation was.
The defense also noted that the stories were inconsistent from the statements given, as well as the timeline of events as to when the outcry and the call to the authorities was made. Richburg said he was unsure of Anna Mendez’s chronological order of events but stated that as Anna Mendez seemed traumatized, the timing could be an issue as the recollection of events can be cloudy during traumatic events.
Richburg also said that the victim was not in earshot of his conversation with Anna Mendez as to not victimize the child any more as well as to avoid possible corruption of the individual accounts.
Following Richburg was Pat Rawlings, the SANE examiner/R.N. at Hendrick Medical Center. Rawlings discussed the differences in performing the SANE exam on a child compared to an adult—including anatomical reasons and parental consent for minors. With this alleged victim's case, Anna Mendez had to give Rawlings information as to what brought her daughter to Hendrick.
The victim became comfortable around her mother and then offered her own statement, in which Rawlings read both accounts. Rawlings performed the exam on the victim after gaining the information needed which consisted of collecting clothes, a head to toe exam and a genital exam.
Rawlings shared her findings with the two exams, in that no injuries were found in the head to toe exam. Redness in one particular area was found in the other exam. A diagram was shown in the courtroom specifying where the redness was found, which Rawlings noted is typically not red.
Swabs and blood work for DNA were also collected from the victim and a complete report was compiled, which a copy was given along with the evidence to law enforcement. Rawlings stated that the findings in both statements from the victim and Anna Mendez were consistent.
When questioned by the defense, Rawlings explained that the only information she had was what was given to her through the statements and not from law enforcement. The defense also discussed the cooperation of the victim and Anna Mendez as well as their accounts given to Rawlings, also recounting the findings of the SANE kit.
However, the defense questioned one such finding of discoloration found in the crotch of the victim's panties. They wondered if a possibility of poor bathroom hygiene could be the result of the discoloration and redness found from the SANE exam. Rawlings denied the possibility in that the redness fell in line with the statements.
Phillip Gill, the chief investigator for the 32nd Judicial District Attorney’s office, took the stand briefly to conclude the day’s testimonies. Gill testified that he got a search warrant on Mendez for DNA during a hearing in September 2010 and obtained two swabs of saliva which were mailed to the DPS office in Lubbock for testing. He also noted that during the encounter that Mendez was not unpleasant and very cooperative.
Further testimony will be heard as the trial continues on Thursday.