.jpg) Asterio Maldonado-Nunez
Police were called by the mother of 11-year-old R.S., who said that she had gone to the home of a neighbor known as the “candy man” because he sold snacks from his apartment and on the street. R.S. said that six-year-old J.L was already there when she arrived.
R.S. told the police that the candy man’s son, 45-year-old Asterio Maldonado-Nunez, picked up J.L. and “was swinging her around in circles and he started kissing her on the cheeks and then he set her between his legs.”
After midnight, police went to J.L.’s house and woke her. During an interview with the officer, J.L. said that earlier that day, Maldonado-Nunez held her tight, reached inside of her panties, touched her buttocks and anus, and then inserted his index and middle finger in her vagina. J.L. said her “middle part” still hurt.
J.L., R.S., and J.L.’s 10-year-old sister, J.S., were interviewed by a nurse who conducted a physical examination of J.L. No evidence of sexual abuse was found.
On July 16, 2012, Maldonado-Nunez was arrested on a charge of indecency with a child. He went to trial in Harris County Criminal District Court in April 2013.
J.L. gave varying accounts that included a claim that Maldonado-Nunez had fondled her genitals in a bedroom at the apartment. At one point, she said that the bedroom had no furniture and at another point, that there were two beds in the bedroom. She said that Maldonado-Nunez had photos of naked women on the bedroom wall and that he had tattoos on his body.
J.L. said that she had denied being touched in the initial police interview at her home, despite what the police said. She told the jury that he never put her between his legs or on his lap, and didn’t touch her in any way. However, she also testified that Maldonado-Nunez did touch her anus, but it was at the front of the apartment, not in the bedroom. She later said that Maldonado-Nunez touched her on a different day, but that she did go to his apartment on May 28, 2012. At different times, she said Maldonado-Nunez was a white man and a black man.
R.S. testified that she went to the apartment to buy candy and chips and that J.L. was already there. She said that Maldonado-Nunez picked J.L. up and was “swinging her around in circles and he started kissing her on the cheeks and then he set her between his legs.” R.S. said that Maldonado-Nunez told them not to tell, and gave them each a bag of chips and a soda before they left.
J.L.’s sister, J.S., testified that on one occasion—weeks before May 28, 2012—she looked through a window at the candy man’s apartment and saw J.L. in the back room. She said Maldonado-Nunez was on top of J.L. and he was “playing with her and everything.” She said that she had to “pull (J.L.) out of the back room.”
Alma Diaz, a sexual assault nurse, testified that she examined J.L. and found no evidence of sexual abuse. Diaz testified that J.L.’s mother told her that J.L. reported Maldonado-Nunez made her go to the back room and sit on his lap while he touched her vagina.
Diaz also testified that J.L. denied that the “candy man” or anyone else had touched her vagina or anus, or touched her in any way that made her feel uncomfortable.
Maldonado-Nunez did not testify and his defense attorney presented no evidence. On April 25, 2013, the jury convicted Maldonado-Nunez of indecency with a child. He was sentenced to 10 years in prison.
In 2016, a new defense attorney, Janet Celeste Blackburn, filed a state law petition for a writ of habeas corpus. The petition said that Maldonado-Nunez’s trial defense attorney had provided an inadequate legal defense by failing to do any investigation on behalf of Maldonado-Nunez.
The petition said that R.S., who said she saw J.L. on the bed with Maldonado-Nunez, could not have seen anything because window blinds and furniture made it physically impossible to see into the bedroom. The defense attorney also failed to present evidence that there were no photos of naked women in the bedroom and that Maldonado-Nunez has no tattoos on his body.
In addition, the defense attorney failed to obtain J.L.’s school records, which indicated she had a history of being argumentative and engaging in acts of violence.
The defense attorney also failed to call witnesses or produce work records, which would have shown that Maldonado-Nunez worked the day the assault was said to have occurred.
After an evidentiary hearing, the trial court judge said that Maldonado-Nunez’s trial defense attorney had failed to make use of “fantastical” claims made by J.L. during an interview with Victoria Medrano, a social worker at The Children’s Assessment Center, which handles victim and witness interviews in child sex abuse cases in Harris County.
Medrano was not called as a witness at the trial by the prosecution or by Maldonado-Nunez’s attorney. According to a video of the interview, which also was not presented at the trial, but which Maldonado-Nunez’s attorney said he watched prior to trial, J.L. said that Maldonado-Nunez “humped” her with his “thing,” namely his “wee wee, on her middle part.” The judge noted that during the interview, J.L. claimed Maldonado-Nunez fought her, grabbed her by the arm and shook her, and that her mother came and got her when she screamed. At one point, she said there were as many as six beds in his bedroom. The judge also noted that she said her grandmother went to the apartment later to kill Maldonado-Nunez, although in fact her grandmother was quite weak and frail.
The judge concluded that Maldonado-Nunez’s trial defense attorney was “deficient” for failing to call witnesses who could have contradicted the testimony of J.L., R.S., and J.S. The judge said that as a result, Maldonado-Nunez’s trial was constitutionally unfair. In March 2017, the Texas Court of Criminal Appeals granted the writ and vacated Maldonado-Nunez’s conviction.
On August 10, 2017, the Harris County District Attorney’s office dismissed the charge.
– Maurice Possley
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