Our bookstore is temporarily closed. Please check back soon.
Criminal Law
November-December 2007

Putting Nicholas to rest

Jamissa Jarmon

Assistant Criminal District Attorney in Bexar County

Lori Valenzuela

Assistant Criminal District Attorney in Bexar County

Bexar County prosecutors try a man for causing the death of a child—with no body.

When children move in with their mother’s boyfriend, life for them changes drastically. In the case of Nicholas Plaza, such a move ended his life. He died at age 5, and to date his body has never been recovered. But this past July, Ruben Zavala, Jr., “the boyfriend,” was tried and held responsible for hurting Nicholas.

Trying this case without Nicholas’ body was a daunting task. Aside from the lack of physical evidence, Ruben Zavala never confessed to hurting or killing the boy. We were faced with proving the case with circumstantial evidence, testimony from unsympathetic people who lived with Nicholas at the time of his death, and various statements from the defendant that varied in consistency. In the end, a Bexar County jury did the right thing by convicting Zavala and sending him to prison.

Background

Nicholas’ tragic story began when his mother, Priscilla Plaza, started dating Zavala in the summer of 2001. Up to that point, Nicholas had led a normal life. He lived with Priscilla, his grandmother Virginia Elizondo, his aunt Leticia Plaza, and his cousin Christopher. Born prematurely, he had overcome illnesses and difficulties that accompany an early birth. His family had consistently taken him to his pediatrician, and when he moved in with Zavala, he was up to date on his vaccinations and wellness checks. There were no indications that he was suffering from any physical ailments or illnesses.

Nicholas and his extended family functioned as most nuclear families do. The adults worked and organized their schedules so that the children could be cared for at all times. When that was not possible, Nicholas and Christopher went to childcare and later attended school. In 2000, Nicholas was enrolled in pre-kindergarten and had an impeccable attendance record. All of that changed a few weeks before he was to begin kindergarten.

That’s when Priscilla and Zavala started spending a significant amount of time together. Priscilla began staying out late and spending the night at the Zavala home. A few days before Nicholas started school, Priscilla’s mother, Virginia Elizondo, told Priscilla that she was concerned for Nicholas because of the hours she was keeping. In protest, Priscilla decided to move in with Zavala, who lived with his parents, Celia Ramos and Ruben Zavala, Sr. In the three-bedroom Zavala home, Zavala, Priscilla, and Nicholas all shared one room.

Nicholas did, in fact, start school. Less than a week later, Priscilla and Zavala stopped taking him to school. Zavala wanted to avoid an active warrant for a kidnapping charge (more on that later), so the three of them began the routine of leaving early, remaining away from the home for the day, and coming back late at night.

While all of this was going on in the Zavala home, Nicholas’ grandmother, Virginia, was desperately trying to track down her grandson. Over the following two months, she contacted police, Child Protective Services (CPS), the Federal Bureau of Investigations (FBI), the Bexar County probation department, and the district attorney’s office. Each time, all doors were closed to her because Nicholas was with his mother and there was no proof that he was in danger. Eventually, CPS opened an investigation and sent a worker to the Zavala home. On one occasion, the CPS worker encountered Zavala who lied and said he was his brother, Jacob Ramos. CPS never made contact with Nicholas or Priscilla.

Nicholas started having health problems around this time. His hair started falling out, and he developed blisters in his mouth and spots on his face. Later he sustained two serious injuries, one to his penis and the other to his leg. These injuries coincided with Priscilla and Zavala’s frequent trips out of town. While gone, they sometimes would not eat and often slept on the streets.

Zavala would often take his anger toward Priscilla out on Nicholas. Zavala would force-feed the boy and sometimes make him throw up. It was Zavala who pointed out Nicholas’ injuries to others and Zavala who admitted that he rolled over onto the boy, injuring his leg. Zavala gave Nicholas repeated baths and would often close the bathroom door so that the two of them were alone. Later, Priscilla said that Nicholas had told her that Zavala was sexually abusing him.

On October 23, 2001, the last day anyone saw Nicholas alive, his health had deteriorated significantly. In statements given to the police, Priscilla, Celia and Zavala all agreed that Nicholas had not walked in three weeks. His leg injury was so severe that he crawled or was carried when he needed to go someplace. These adults agreed that Nicholas’ hair was falling out in clumps, he urinated in his bed, and his mouth was bleeding from blisters. He was pale; according to Zavala (who did not testify but whose statements were admitted), Zavala compared Nicholas to Casper the Ghost. Additionally, Priscilla and Celia testified that the cut on his penis was so deep that his penis looked like “it was going to fall off” and “probably needed stitches.”

Up to that point, only Zavala and Priscilla had been caring for Nicholas. However, Zavala’s mother, Celia, decided things were bad enough to warrant a trip to the hospital. She thought that Nicholas looked like he was going to die. Celia threatened Priscilla and Zavala that if they did not take Nicholas to the doctor, she was going to take him herself. Zavala replied that his mother could watch the boy while he and Priscilla were job hunting, but when Celia looked for Nicholas, she found only pillows under the boy’s bedcovers arranged to appear as though the child were sleeping under them. Zavala claimed that he had taken Nicholas to a neighbor’s house and that the neighbor was going to take him to a doctor.

Later that day, Zavala called Celia and told her to come pick him and Priscilla up. He instructed Celia to lie to Priscilla and tell her that Nicholas had been removed from the home by CPS. Celia complied, and no one ever saw Nicholas again. Although Priscilla never called CPS or her mother to confirm the story, she assumed that Nicholas was with her mother, Virginia. Priscilla remained in the Zavala home until November 21, 2001, when Zavala was arrested on the active warrant. The time lapse was one of many hurdles that hindered the investigation.

The investigation

After Zavala was arrested, he was interviewed by police, and he claimed that Nicholas had died when the child and Priscilla were alone in their bedroom. “In order to help Priscilla,” Zavala had placed Nicholas’ dead body in a Dumpster. Zavala was later sent to prison for a probation violation. Priscilla was also interviewed and swore that she did not know where her son was or what had happened to him. She confirmed that Celia had told her that CPS took Nicholas away.

After the 2001 investigation, the case was not filed with our office. It went dormant, save for Zavala’s random letter or request from prison claiming he wanted to provide information on Nicholas’ case. He gave some statements, but they remained essentially consistent with his previous statements. He continued to claim that he had disposed of Nicholas’ body in a Dumpster.

In 2005, George Saidler, a detective with the San Antonio Police Department, was assigned to the case after Zavala initiated another contact with law enforcement about Nicholas’ disappearance. Detective Saidler reviewed the file and insightfully took the evidence to Dr. Nancy Kellogg, a child abuse expert. Dr. Kellogg reviewed the file and interviewed Priscilla, and she determined that Nicholas had sustained serious bodily injury to his leg and penis. Additionally, enough time had lapsed at that point to believe that Nicholas’s body would never be found despite repeated searches and involvement by local agencies, including the Heidi Search Center.

Ultimately, the defendant was charged with murder and injury to a child (SBI). When the State struck a deal with Priscilla for her testimony, it became apparent that the better offense to charge was injury to a child. The biggest issue for us was that Nicholas’ body has never been found. To date, there had only been two “no body” cases tried in Texas: Fisher v. State1 and McDuff v. State,2 but in each of those cases there had been some evidence of a deceased person.3 Not so in our case.

Aside from not having a victim or even a body, we had to prove our case with witnesses who were not sympathetic to the jury. The first was Priscilla, who was an accomplice as a matter of law and who had been indicted and had pled to a cap of 20 years in exchange for her testimony.4 The other was the defendant’s mother, Celia, who didn’t have a legal duty to help Nicholas but certainly had a moral duty—which she shirked. By the time trial rolled around (late summer 2007), two State’s witnesses, Ruben Zavala, Sr., and Jacob Ramos, had died. Additionally, Nicholas’ injuries had never been seen by medical personnel, so we were left having lay witnesses describe them to prove serious bodily injury.

The trial

We started our case with Virginia Elizondo, Nicholas’ grandmother, who gave an overview of her grandson’s life before he and his mother moved into the Zavala home. It was important for the jury to understand that before Zavala came into the picture, Nicholas was a happy, healthy little boy. We knew that the contrast between “before Zavala” and “after Zavala” would affect the jury.

To describe the injuries, we called Celia and Priscilla. Both women described the leg injury, including Nicholas’ inability to walk for three weeks, and the cut on his penis. Both admitted that they thought that Nicholas might die if he did not get medical treatment. They testified that Zavala fed, bathed, and cared for Nicholas the majority of the time, which helped support our charge of omission. Then we called numerous law enforcement officers, including detectives who had taken the defendant’s statements from the initial investigation in 2001, then followed up with information gleaned from the more recent investigation, calling Dr. Kellogg and Erica Graham, a forensic serologist.

Ms. Graham had performed testing on a pair of boy’s underwear recovered at the Zavala home. Ms. Graham testified that the biological substance found on the underwear was blood that came from a male biological relative of Priscilla. Graham also stated that there was a significant amount of blood on the underwear. Dr. Kellogg confirmed that the amount of blood on the underwear substantiated a cut in the genital area and supported the lay-witness testimony that the penis injury was serious. We concluded our case with a witness from the landfill where we believe Nicholas’ body was dumped. He testified to the size of the landfill and the impossibility of finding a body.

During trial we relied on the fact that the witnesses had seen Nicholas’ injuries and that the defendant said he disposed of Nicholas’ body. The time lapse since his disappearance corroborated that Nicholas was in fact dead. The defense did not put on a case, but through questioning the State’s witnesses, Zavala’s defense appeared to be two-fold. Its first aspect was that the responsibility to care for Nicholas and to seek medical attention fell solely on Priscilla. Defense counsel blamed Priscilla and her general lack of parenting skills as the cause of Nicholas’ death. Secondly, the defense asserted that Priscilla, not Zavala, was with Nicholas when he died. In two of Zavala’s statements, he claimed that he was in a different room when Nicholas died. Zavala contended that he only tried to help the woman he loved, and when he could not resuscitate the boy, he decided to dispose of Nicholas’ body. The defense never directly accused Priscilla of killing Nicholas, but rather implied that because she was Nicholas’ mother, she had a duty to get Nicholas medical treatment.

At the close of the case, the jury charge included offenses ranging from first-degree injury to a child to a state jail felony injury to a child. The jury came back with a guilty verdict on the first-degree felony.

Punishment

For punishment we presented evidence of Zavala’s previous kidnapping charge, which was the reason Zavala had been running from the law when he and Priscilla were together. The evidence in that case was eerily similar to Nicholas’ situation: Zavala was dating a woman who had an infant. She, too, had moved into Zavala’s parents’ home, and Zavala began caring for her son. Like Priscilla, she had quit her job upon Zavala’s request. They traveled to other cities and lived on the streets. After they broke up, Zavala asked to meet her so that they could discuss some issues, and she agreed. While at a local restaurant, Zavala asked to take her then-18-month-old son to the bathroom, and Zavala disappeared with the child. Later, Zavala left her a voicemail saying that he had her son, and he wanted her to move back into his mother’s house or he would “pop a cap in his (own) ass and take his son with him.” There was a gasp from some of the jurors when this tape was played. It was evident that after that woman’s testimony, Zavala was a predator—the facts of Nicholas’ case were so alarmingly similar.

During punishment, the defense only called one witness, Celia. She testified that she was in bad health and that she had no one but her son to take care of and bury her. We asked for 99 years in prison and in the end, the jury assessed 67. Our discussions with the jury later revealed that the jury compromised on the sentence, and we surmised that Celia’s testimony was sympathetic to some jurors.

Lessons learned

What we learned is that these cases are extremely difficult, but not impossible, to prove. In most scenarios, time is the State’s enemy, but in this case, time was on our side. The lapse in years confirmed what was known from the beginning, that Nicholas was dead. After five years, there had been no fruitful leads in the investigation, and we knew that Nicholas (or his body) was never going to be found.

The most notable figure in seeking justice for Nicholas was Detective Saidler. In charge of the cold case unit, he was able to think outside the box to look for ways to prove the offense. Detective Saidler reinterviewed witnesses, found information on leg injuries, and followed any leads from the defendant. Specifically, Detective Saidler’s consultation with Dr. Kellogg about the SBI issue ultimately led to the charge against Zavala. That was creative investigating. Without a body, we needed a way to prove that Nicholas suffered serious bodily injury, and Dr. Kellogg was able to put Priscilla’s, Celia’s, and Zavala’s descriptions of Nicholas’ injuries in perspective. Additionally, Dr. Kellogg’s testimony corroborated their description of the penis cut because she was able to take their description and match it with the bloody underwear.

It was easy to be intimidated by the fact that our best evidence against Zavala was Nicholas himself, and he was gone. Going forward without a body or medical records to show injury and relying on an unpredictable witness, such as Celia, was all part of taking a chance and hoping that your evidence will be enough to prove your case and get the jury to do the right thing. In this case, they did.

Endnotes

1 851 S.W.2d 298 (Tex. Crim. App. 1993).


2 939 S.W.2d 607 (Tex. Crim. App. 1997).


3 In Fisher, the victim’s bone fragments and blood were found, and in McDuff, a witness had seen the victim in the trunk of the defendant’s car where blood and hair were subsequently discovered.


4 One last note about the case: As of press time, Priscilla had not been sentenced.