By Sterling Harmon
Appellate Chief, Criminal District Attorney’s Office in McLennan County
Fourteen-year-old Clarisa S. took her own life on June 6, 2018. The previous day, she had been subpoenaed to testify at the trial of her stepfather, Manuel Gonzalez, who was charged with sexually abusing her from the time she was 8 until she was 12.
The news of Clarisa’s suicide stunned our office. Our lead trial counsel, Hilary LaBorde, hadn’t anticipated any problems getting her ready for trial when the time came. “I couldn’t have been more wrong,” Hilary remembers now. “Our pre-indictment meeting would be the only time I would see her—and I would end up being the only prosecutor to ever talk to her. She had no trouble talking about her abuse with me, and afterwards we looked up pictures on our travel bucket lists: Italy for her and Tahiti for me—she’d been a lot of places.”
In the wake of Clarisa’s death, a team from the McLennan County Criminal District Attorney’s Office resolved that it would not be the end of Clarisa’s story; rather, there would be an accounting for her death and the years of victimization she had suffered. Sydney Tuggle, who served as lead counsel at Gonzalez’ eventual trial, voiced our thoughts:
“Clarisa was more than a victim. She was a young girl who faced incredible hardships and fought to have her voice heard. After she watched her mother be served her subpoena to appear at trial, Clarisa hid her nerves and showed our investigator the new designs she had just decided about her room, hopeful for her future. The next day, she snuck away from her mother and shot herself in the heart.
“When her case came up for trial again, I asked our elected DA to let us keep her fight going. I knew that the odds of using her statements in trial were slim, but we came up with the idea of trying to get them in under the legal theory of forfeiture by wrongdoing. She deserved to be heard, and she deserved for us to fight.”
Under the regular rules of court, evidence must be presented by witnesses with knowledge. To bring Gonzalez to account, we would need to find an exception to those rules to tell Clarisa’s story for her, without violating either the hearsay rule or the defendant’s confrontation rights. We were confident that we could admit the statements Clarisa made as part of her sexual assault medical exam, as Rule 803(4) and its case interpretations hold that such statements are both an exception to the hearsay rule and non-testimonial and therefore not subject to a Confrontation Clause objection.
But we would need more than this to convince a jury that the sort of abuse Clarisa suffered was even possible, much less that it had actually happened. This is a challenge in every child sex abuse case, where jurors don’t want to believe such atrocious acts can be done to a child. Typically, we counter these tendencies by showing that the victim has been consistent in sharing her account from outcry, to forensic interview, to medical examination, to her trial testimony. But if we could tell Clarisa’s story only once, through the medical exam, we couldn’t show her story’s consistency over time.
The trial team intuitively understood that Clarisa’s suicide was a result of the abuse she suffered over many years. But proving it would require a compelling case for admitting her previous statements under forfeiture by wrongdoing. If we could convince the trial court that the doctrine applied to this situation, we would be allowed to present all of Clarisa’s statements at trial. It would be vital to gaining a conviction.
Forfeiture by wrongdoing
As the Supreme Court of the United States explained in Giles v. California,[1] forfeiture by wrongdoing is a common-law doctrine going back as far as Lord Morley’s Case in 1666. The doctrine permits the introduction of statements of a witness who has been detained or kept away from trial by the defendant’s means or procurement. Because the doctrine was already established at the time of our nation’s founding, the Supreme Court has recognized it as an exception to a defendant’s Sixth Amendment right to confront witnesses. It is codified in Texas as Code of Criminal Procedure Article 38.49.
In making its determination under Article 38.49, the trial court considers “evidence and statements related to a party [who] has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of a witness or prospective witness.” Under Giles, the exception applies only “when the defendant engaged in conduct designed to prevent the witness from testifying” and that the defendant intended to prevent the witness from testifying. The doctrine can apply even when the defendant has multiple reasons for harming the witness, as long as one of those reasons is to prevent the witness from testifying. Also, the statute specifically says that the statements do not have to pass a reliability test to be admitted, unlike, say, the outcry statements of a child sexual abuse victim under Article 38.072. To persuade the trial court that the doctrine applied, we would have to show by a preponderance of evidence that Gonzalez had “procured” Clarisa’s unavailability and that his conduct was designed and intended to do just that.
Our research found forfeiture by wrongdoing had been applied to cases of domestic violence where the victim was unavailable because of the defendant’s intimidation, murder cases where part of the defendant’s motivation was to silence the victim, and drug trafficking cases where informants had been murdered to prevent their testimony. But we found nothing where the doctrine had been applied to a witness’s suicide. The problem we faced was proving that Gonzalez’s intentional actions had caused Clarisa’s suicide. While our gut told us that Gonzalez was responsible for her death, we realized that forging that final link in the chain of causation would require a powerful case with strong, specific facts.
Our boss, McLennan County Criminal District Attorney Barry Johnson, approved our attempt to admit Clarisa’s statements, but if the attempt was not successful, we were still going to trial with our other evidence. In short, our attitude was, “We might get our butt kicked, but this is one butt-kicking we’re willing to take.”
The hearing
Marshalling and evaluating the evidence for the hearing were the trial team, Sydney Tuggle and Will Hix, and the appellate team, Gabe Price and myself. We had the typical child sexual assault evidence (outcry statement, medical exam, forensic interview) to show the abuse Clarisa suffered, but to show Gonzalez’s intent and how he kept her off the witness stand, we needed more. To meet this end, we had Clarisa’s mom, her therapist, and the expert testimony of psychologist Dr. William Carter.
Gabe Price explains the analytical challenges we faced: “When we started looking at the different options for proving the case without the victim, we had to see the case from a different perspective: Trying to think why the victim was no longer available became the focus. This case was not just about reading a record from a hearing or trial—it took a more holistic approach from the trial prosecutors working with us to answer the ‘why.’ Our discussions always returned to the defendant’s grooming behavior with this particular victim and what he did to try to hide his crime. The threats Gonzalez made to keep Clarisa from coming forward in the first place were the type of threats that would still be with her when the reality of testifying drew closer. Then everything started to make sense.”
Gonzalez’s intent during the offense was to keep Clarisa from telling people what he was doing. Like many sexual predators, he threatened her with what he would do to her and her family if she told anyone about the abuse. Although the threats were made during the timeframe of the offense, the effect of those threats stayed with Clarisa. We learned from her mother and therapist how much Gonzalez’s threats were still at the forefront of her mind. Dr. Carter was able to educate us (and later, the judge) about the effect Gonzalez’s actions had on Clarisa’s mental state. In the end, our theory for applying the doctrine of forfeiture by wrongdoing came down to a simple statement: The defendant’s threats were intended to keep the victim from telling people what he did to her, and his actions succeeded in the most tragic way imaginable.
Three weeks before trial, we filed our Motion for Determination of Forfeiture by Wrongdoing, which was heard a week later. The presiding judge was Ralph Strother, who had extensive experience on the bench. At the hearing, I made an opening statement generally addressing the doctrine and presenting an outline of what we intended to show. We felt this was necessary because the doctrine isn’t used every day and even a seasoned jurist might require a “refresher course.”
By this time, prosecutor Hilary LaBorde had left the office, and the assigned trial team of Sydney Tuggle and Will Hix presented our witnesses.
Dr. Soo Battle, a board-certified pediatrician, had done Clarisa’s sexual assault medical exam. From her written report, Dr. Battle testified that Clarisa was a seventh-grader who lived with her mother and half-brother, Gonzalez’s son. Gonzalez had lived in the home until about four weeks before the examination, when the abuse was reported. When Gonzalez moved out, he had taken a number of firearms.
Clarisa told Dr. Battle that Gonzalez was “raping me” and “doing stuff that I didn’t like sexually.” The abuse started when she was 8 years old, and Gonzalez told Clarisa that he would hurt her if she didn’t “do it.” Around the time that the sexual abuse started, Clarisa began taking melatonin for sleep difficulties. She also needed counseling to deal with nightmares she was having about the abuse. Clarisa’s depression had also manifested in self-harm by cutting, which started when Gonzalez began hitting her. Dr. Battle testified that these symptoms were typically associated with sexual abuse.
In addition to the sexual abuse, Gonzalez would punish Clarisa by taking away her phone, spanking her with a belt, hitting her, and cutting her on her knees. Dr. Battle documented the cutting scars. Clarisa also told Dr. Battle that she was afraid that Gonzalez might try to kill her.
Therapist Britni Hosick testified about her sessions with Clarisa after the outcry. From their first meeting, Clarisa was anxious but reluctant to discuss the source of her anxiety. Eventually, she revealed her concern that Gonzalez, having been freed on bond, might hurt her, her mother, or her little brother. Clarisa was also anxious about an upcoming court date and having to face her stepfather in court.
Heydi McKinney conducted Clarisa’s forensic interview. Clarisa had been reluctant to talk about what happened to her. She told McKinney that Gonzalez yelled at her a lot and that she was scared of him both for herself and other members of the family. Gonzalez told Clarisa not to tell her mother. McKinney deduced that Clarisa’s reluctance to discuss the abuse was because of Gonzalez’s threats not to tell anyone.
Clarisa’s mother, Clara, testified about the dynamics of her five-year marriage to Gonzalez. He was over-protective of their son, but he picked on Clarisa. Clara did not believe her daughter when she first told her of the abuse, but she later witnessed the abuse first-hand when she walked into Clarisa’s room and saw that “this man was on her.”
Clara testified that Gonzalez had hit Clarisa to keep her from telling anyone about the abuse. She had seen the bruises on Clarisa’s legs, and her daughter had begged not to have to testify. She was terrified to face Gonzalez in court because of what he had done to her.
Dr. Carter, a psychologist with expertise in child sexual abuse, testified that suicidal ideation and self-abuse, such as cutting, were “quite common and directly tied to the pain associated with sexual abuse.” Perpetrators often seek to keep their victims under their control. An abuser might take advantage of an imbalance in the relationship between an adult and a child—as well as make direct threats—to ensure that the abuse is never disclosed.
Dr. Carter opined that when Clarisa was subpoenaed, “All the facts that she is living under, the helplessness she is living with, the gloom and doom she experiences, those things are coming to fruition, and she would see that now we’re not talking in abstract, we’re talking in reality, and the weight of that burden can be such that she thinks, ‘I can’t do it. I can’t go there.’” This was the inflection point that prompted Clarisa to take her own life. Based on the continuous sexual abuse as well as the repeated emotional and physical abuse, it could be strongly inferred that Gonzalez’s intention was that Clarisa never disclose what happened to her. To Dr. Carter, there was “little question that he … had every intention of buying her silence.”
The case was complicated by a bizarre twist that the defense tried to finagle into a continuance. After breaking up with Gonzalez, Clara began a relationship with a man known as Gio Michell. Clara and her new paramour were living together with Clarisa and her younger brother at the time of Clarisa’s death. But it turned out that Gio Michell was living a double life, and he died in a shoot-out with federal agents about a year later. This all happened at the same residence. Before the hearing, defense counsel filed a motion for continuance, insinuating that Clarisa’s suicide was linked to Michell’s shady activities.
Gabe Price presented our closing arguments. We asserted that the FBI raid and Michell’s death were irrelevant, there being no evidence that Michell ever did anything to Clarisa that caused her suicide. The issue was Gonzalez’s actions that terrorized the girl for four years. The Supreme Court had noted in Giles that in domestic violence cases, continued abuse demonstrated an intent to keep the victim quiet, and that such abuse didn’t have to be after the fact to support a finding of forfeiture by wrongdoing. Gonzalez’s continuous abuse and threats were of course intended to keep Clarisa quiet. That Clarisa chose to take her own life because of what her stepfather did to her should not be to his benefit—that is why forfeiture by wrongdoing exists. The State had met its burden of proof not merely by a preponderance, but definitively, that Gonzalez intended to keep Clarisa quiet. “I don’t see how anyone looking at this and the facts of this case—where somebody is served a subpoena to testify on June 5, and the next day kills herself—you can’t say those aren’t linked,” Gabe argued. “Of course they are. And they’re linked directly to that man right there.”
The defense re-urged its motion for continuance, arguing that “there is information that we believe at this time that could potentially be exculpatory or favorable to the defendant. … I don’t know what’s going on right now with the FBI investigation, that there is something that is going to be favorable toward the defendant in this case.”
Defense counsel then argued that the caselaw did not address this specific situation. In the cases “where it wasn’t the initial action, such as murder, that kept someone from testifying, there was some sort of precipitating event after that.” There was no evidence showing that Gonzalez had any contact with Clarisa from the time he moved out of the house until she committed suicide. Going off the caselaw and the testimony, “there is not enough evidence at all to show that any wrongdoing, if any, by the defendant was done with the intent to prevent her from testifying at trial,” defense counsel argued.
In response, Gabe Price clarified that “the caselaw is not murder cases. The caselaw is when that victim is unable to be in that chair for any reason because the defendant committed wrongful acts. … We don’t have to show HOW she was unavailable. All it is, is he intended for her to be unavailable and procured that.” Gonzalez’s actions had put Clarisa in a state of learned helplessness, and she ended up taking her own life and becoming unavailable for trial. “This is not a hard call at all,” Gabe continued. “This is not a monumental case. This absolutely fits within the construct of forfeiture by wrongdoing.”
Judge Strother was “persuaded that the State’s motion has merit,” found that Gonzalez’s wrongdoing had procured Clarisa’s unavailability as a witness, and barred objection to the admissibility of evidence and statements based on her unavailability. He denied the defense’s request for a continuance and, to top it off, sua sponte found Gonzalez’s bond insufficient.
While the court’s ruling was gratifying, we weren’t surprised by it. The team’s hard work in research, preparation, and presentation made us feel that this was the right call. We also realized that we had only gotten a ruling; we hadn’t won anything yet. In effect, we had been given permission to go to trial with the tools we would ordinarily have.
Going to trial
At trial, we presented much of the same testimony, along with significant physical evidence. Clarisa had told the forensic interviewer, Heydi McKinney, that Gonzalez used penis rings and that he kept a supply of hand towels in a nightstand to wipe his semen off of her. Investigators testified to finding these items exactly how Clarisa described them and exactly where she said they would be. The jury also heard about Clarisa’s DNA being found on one of the penis rings.
To show that Clarisa was a real person and not just a collection of statements, the trial team prepared an enlarged photograph of her to provide a touchstone for the jurors. Playing Clarisa’s forensic interview was one of the harder moments during the trial, as the jury got to hear her voice, see her face and her shy mannerisms, and hear her laugh.
The defense case was essentially that Clarisa had fabricated the whole thing. Gonzalez took the stand and testified that his stepdaughter had hated him from the time he started dating her mother. He denied the abuse and claimed to have no idea why Clarisa would say such things about him. Asked why Clarisa’s DNA would be found on his penis rings, Gonzales didn’t know: “I’m not a forensic,” he said. Defense counsel also tried to introduce testimony relating to the Gio Michell incident, but the judge sustained our relevance objections.
The jury returned guilty verdicts and assessed maximum punishments of life and 20 years on the two counts of continuous sexual abuse of a child and indecency with a child by contact. Judge Strother stacked the punishments. Afterward, our prosecutors spoke with the jurors. Sydney Tuggle recalled: “Not a single person made it through without crying. Jurors were moved by Clarisa’s life and death, and I still keep in touch with many of them today. One juror is the manager of a local restaurant and paid for the entire jury to come eat or drink on him. I still see him from time to time with my family on holidays, and after every initial hug, there’s a moment of silence while we remember Clarisa. I still see her smile and hear her laugh, talking about her dreams.”
The appeal
On appeal, the major issue was (of course) forfeiture by wrongdoing and whether it was properly applied in a case where the defendant’s actions were attenuated by an act of suicide. Gonzalez relied on Brown v. State,[2] where the Court of Criminal Appeals agreed with the appellant that the State had failed to prove by a preponderance of the evidence that he procured the victim’s unavailability at his trial for family violence assault. The Court noted that there was no evidence that Brown did anything to influence the victim not to appear at trial and that any connection between his acts and the victim’s failure to appear at trial was “pure speculation.”
To counter this argument, we emphasized the specifics of the evidence we had presented at the hearing. It was undisputed that Clarisa took her life one day after being subpoenaed to testify. The testimony revealed that Gonzalez had sexually, physically, mentally, and psychologically abused the child victim on a daily basis for four years. The abuse was not limited to reprehensible sexual acts; it included beating, cutting, and threats. These threats were specific that he would hurt or kill Clarisa, her mother, and her brother if she ever told anyone about the abuse. And the threats were credible; Clarisa had personally experienced the cuttings and the beatings, and she knew that her stepfather kept guns.
Clarisa related the abuse and threats to her mother, counselor, doctor, and forensic interviewer. The veracity of her revelations was apparent not only in her literal words, but also in their effect on her mental state. She was depressed and anxious, and she had trouble sleeping. Her fear of Gonzalez was such that the local police made it a routine to flash their headlights through her window when they drove by to let her know they were keeping her safe.
Dr. Carter’s testimony showed the strong link between sexual abuse and suicide and depression in children. He also testified to the many purposes of Gonzalez’s abuse and threats: One was to keep the sexual abuse a secret so it could continue; another was control over his victim to facilitate the ongoing abuse. Obviously and definitionally, Gonzalez used these means to ensure that the abuse was never revealed. He was so effective that Clarisa opted to take her own life rather than tell her story in court.
The Tenth Court of Appeals in Waco agreed that our case was different from Brown and that the connection between Gonzalez’s acts and Clarisa’s failure to appear at trial was more than “pure speculation.”[3] The evidence was sufficient to show by a preponderance of the evidence that Gonzalez wrongfully procured Clarisa’s unavailability to testify and that he intended to and did procure her unavailability as a witness; the State was not required to prove that that was the sole intent behind his actions; and the trial court did not abuse its discretion when it admitted Clarisa’s out-of-court statements.
Conclusion
The Tenth Court found no abuse of discretion by the trial court in applying the forfeiture by wrongdoing doctrine, following established precedent under Giles and CCP Article 38.49. And though not binding as precedent, the Tenth Court’s opinion provides a template for applying the doctrine to a situation where a victim has been driven to suicide by a perpetrator’s actions. I pray that no one should ever have to deal with a such a situation, but prosecutors now have this opinion in their toolbox if needed.
The members of the trial team were kind enough to share their reflections on this case. Will Hix considered that “of all the prosecutorial efforts I have been a part of, this one was the most impactful on me. This result that we were able to achieve is the kind that can sustain you through a job that never seems to get any easier.“ Sydney Tuggle regards Clarisa as “more than a victim. She changed so many lives with her life. And for her, I and so many others will be forever grateful and forever changed.” Although she is no longer with our office, Hilary LaBorde shared her hope that “Will and Sydney—and everyone involved in prosecuting Clarisa’s abuser without her—are and remain so proud of themselves for fighting for her and always remember this victory.”
Endnotes
[1] 554 U.S. 353 (2008).
[2] 618 S.W.3d 352 (Tex. Crim. App. 2021).
[3] Gonzalez v. State, No. 10-19-00293-CR, 2022 WL 118342 (Tex. App.—Waco Jan. 12, 2022, pet. ref’d) (not for publication).