Josiah Fernandez of Winters was convicted on 2 counts of sexual assault of a child on October 31st. There were two victims in two separate cases.
According to district attorney John Best, Fernandez waived a jury trial and pled guilty. There was no plea bargain in place. District Court Judge Ben Woodward heard the testimony of the two victims and of the witnesses and decided the punishment.
The first victim was 16-years old. She testified that last year she was at a Quinceanera celebration at the community center in Winters when a friend of hers asked her to go with her because she had gotten a ride with Fernandez and didn’t want to be alone with him. The victim said that once Fernandez dropped her friend off, he drove her out to a county road and forced himself on her. Fernandez admitted to the crime in a video. Fernandez said, in the video, that after driving to the secluded country road, “I kissed her (victim) on the cheek and it just went downhill from there. She told me to stop but I didn’t. We’d both been drinking at a dance.” In the video Fernandez also said that he regretted what happened. He also said in the video, “Both of us were drunk and she told me that she didn’t want to (have sex) but it just went down hill from there.” The video was provided by Winters’ Police Officer Garrett from his body cam footage. According to testimony, Fernandez had been advised of his rights and waived them.
The victim testified that she was not drunk and had only consumed 2 beers over a 3-hour period at the dance. She said that Fernandez drove her around once they dropped her friend off, “When we dropped her (friend) off at her house, he drove around and took me on some back roads. He stopped the truck and came to my side of the truck and opened the door. He told me that he wanted to [have sex] and I said, ‘No.’ He started forcing himself on me and I told him to stop, but he didn’t.” The victim testified that Fernandez then took her shorts off and forced himself on her. The victim testified that after the assault she was upset, “When he finished, he got up and I just laid there and cried. I got up and put my shorts on. I told him to take me to my friend’s house. He took me there and I was crying.” The victim was visibly upset and cried at times while giving her testimony.
Once they arrived at a friend’s house, the victim told her friend what had happened and the friend, “went out and made Fernandez leave.” The victim stayed at the house that night. The following morning she told her mother what had happened and her mother called the police, “We went to Ballinger Memorial Hospital to do a rape kit but they didn’t have everything that they needed so we went to a hospital in San Angelo and had the rape kit done.” She said that after the rape exam she went to Hope House where the police interviewed her.
Another victim came forward after news of the sexual assault spread. She had been raped as well. This victim was 15-years old at the time of the sexual assault. This occurred several months before the sexual assault on the first victim. The second victim said that she found the courage to come forward after she heard about the other victim. Fernandez was 19 at the time of this sexual assault. Fernandez said that the sex was consensual. The second victim said that Fernandez drove her around and went out to a county road and stopped the truck. She said that he started trying to kiss her and that she kept telling him, “No,” and to stop. “He asked me why and I told him, ‘because I said ‘No.’ I kept pushing him off. He took my pants off and pulled his pants down. Then he forced himself on me. I kept telling him to stop but he kept going until he finished.” She said that Fernandez used a condom and threw it out of the window when he was finished. She said that afterward Fernandez asked her if she was, “okay.” She testified that she just stared out of the window and wiped tears off of her face as he drove her home. She said that when she got home that she went in and immediately took a shower.
After all of the testimony in the case, the victims and their families sat together in the courtroom when Judge Woodward came out and passed sentence. Woodward explained how he came to his decision on the punishment, “These are not easy cases. I’ve studied this very hard and thought about it very hard. I had to go back look at the objectives of the penal code.” Woodward said that the objectives of the penal code included ensuring the public safety through deterrent penalties and informed Fernandez, “This is a 2nd degree felony. I could sentence you to 20 years in prison.”
Woodward said that the penal code objectives also included ensuring the public safety through rehabilitation and that, “punishment should be likely to prevent a recurrence of the criminal behavior.” Woodward addressed Fernandez and said that the penalty should be proportionate to the crime, “What you did to those two girls is extremely serious.”
Woodward reiterated that the crime was a, “very serious offense,” and said that he took into account that Fernandez had no prior record and that he had not seen any evidence to suggest that Fernandez had even been in trouble when he was a student in Winters. Woodward said that Fernandez has, “good family support,” and that he had a good job with an employer that said that he was a good employee. Woodward then passed sentence, “Recognizing that in you (not being in trouble), the evidence substantiates your guilt.” Woodward then sentenced Fernandez to deferred adjudication and 5 years probation. He said that Fernandez will have to undergo sex offender counseling and register as a sex offender. Woodward informed Fernandez that if he violated the terms of his probation, “I can sentence you to up to 20 years in prison.” Woodward also detailed other conditions of Fernandez’s probation; He is not to use the internet while on probation; He is not to associate with anyone under the age of 17 unless they’re a family member; He is not to have any contact with the victims; Once Fernandez finds a home, it can’t be within 500’ of a school; He will have a curfew between 9 p.m. and 6 a.m. and can only be out during those hours if he’s working, or going to or from work. Woodward also informed Fernandez that he will have to take polygraph tests from time to time. Woodward asked Fernandez if he wished to appeal the ruling and Fernandez said that he did not want to appeal.
The sentence was met with tears from the victims and their family members. Fernandez apologized to the victims but did not face them. Woodward asked Fernandez if he was ever going to do anything like that again and Fernandez responded with, “No, sir. I won’t.”
There was visible disappointment from some in the courtroom at the arguably light sentence handed down to Fernandez. The girls were 15 and 16, respectively, when their sexual assaults occurred and it was obvious that many in the courtroom hoped for a more significant sentence. Fernandez’s lack of criminal history, pleading guilty prior to trial without a plea bargain and apparent remorse played in his favor.