EDITOR’S NOTE: This story contains graphic descriptions of child sexual abuse.
An Ector County jury took an hour Wednesday to convict a 24-year-old Odessa man accused of having a toddler perform oral sex on him.
Fabian Andres Ortega was indicted on one count of aggravated sexual assault of a child in December 2020, a few months after a Del Rio transgender woman contacted authorities to tell them Ortega had shared with her a photo of a young girl he said was a 1-year-old relative with his semen in her mouth.
Fern Garcia testified Monday that she’d met Ortega in March 2020 through the dating app Tinder, joined him at a Del Rio Motel 6 and had a sexual encounter. In the months following, Garcia said the two of them continued to text and video chat on Snapchat, which deletes conversations within 24 hours. Garcia told jurors that when Ortega began talking about using a young girl sexually, sharing the child with other men and having her teach the girl how to please him, she began to take photos of their conversations with her tablet. Not knowing if Ortega was merely fantasizing, Garcia said she asked if he had photos and he sent her the photo at the center of the state’s case against him.
Garcia testified that when she was unsuccessful reporting Ortega to the Odessa or Midland police departments, she reached out to the Del Rio Police Department, who referred her to the FBI. Eventually, the case ended up with the Ector County Sheriff’s Office.
During her closing argument Wednesday afternoon, defense attorney Violet White reminded jurors that Ortega’s father, Andres, and sister, Vanessa Ontiveros, testified Ortega was never alone with the child. Ontiveros also testified the child in the photo had a different skin tone than her relative and lacks not only the pierced ears that her relative has, but the forked tongue as well.
White urged the jurors to look closely at the photo in question and photos provided by the Ortega family. She suggested the girl in the photo wasn’t the victim and the substance in the girl’s mouth wasn’t semen, either.
The girl’s own mother and grandmother testified they were only 80 and 90% sure the girl in the photo was their daughter/granddaughter, White said.
“Are you willing to convict Fabian based on someone being 80% sure? Are you willing to convict based on 90% sure?” White said. “I submit to you that’s not beyond a reasonable doubt.”
White also attacked the investigation done by ECSO Investigator Heidi Zavala, who testified she didn’t follow up on a subpoena to try to get Ortega’s cell phone, didn’t seek a subpoena from Snapchat and didn’t explore whether someone could’ve assumed Ortega’s identity on Snapchat. The defense attorney also reminded jurors that when Zavala sought a search warrant for Ortega’s bedroom and his arrest warrant, she told the judge the young girl said she’d been sexually abused, although she wasn’t capable of forming complete sentences yet.
Assistant Ector County District Attorney Melissa Rayne told jurors that mistakes were made by all of the law enforcement agencies involved and by a sexual assault nurse examiner, but there was still more than enough evidence to convict Ortega.
Garcia had nothing to gain by reporting Ortega and came forward despite having to reveal embarrassing details about her sex life, Rayne said.
“She’s never been a law enforcement officer, but she probably did the best investigation of all,” Rayne said.
Garcia asked open-ended questions of Ortega and managed to get photographic evidence of the act, Rayne said.
“What we do know with 100% certainty is that the defendant said that was his (relative) and that the defendant told Fern what the photo portrayed,” Rayne said.
The prosecutor argued Ortega took several actions that showed consciousness of guilt. He didn’t immediately tell an FBI agent he had a Snapchat account and then lied about deactivating it, Rayne said. He also gave a Child Protective Services caseworker the wrong number for the girl’s mother and evaded her attempts to interview him.
Because the FBI screwed up and tipped him off to the investigation, Ortega disappeared with his phone for several days around the time the ECSO came to search his bedroom at his parents’ home in September 2020, Rayne said.
Rayne reminded jurors that although he later denied it, the defendant’s father told investigators he’d deleted sexually explicit photos from his son’s phone. Moreover, Ortega himself told an FBI agent there were sexually explicit conversations on his phone, she said.
Despite insisting they were a really tight-knit family, both Ortega’s father and sister said they had no idea where Ortega was in September 2020, saying only that he was “away.”
“I want to know where Away, Texas is,” Assistant Ector County District Attorney William Prasher said during his portion of closing arguments.
“You can think Heidi Zavala is a horrible person. You can think she’s a horrible investigator, but that doesn’t change anything,” Prasher said. “The defendant supplied all of the evidence you need.”
Prasher told jurors there’s no question it was Ortega who sent the photo to Garcia, they’d been video chatting.
“She saw his face. She saw his whole body. There’s no doubt who she was chatting with,” Prasher said.
Rayne told jurors that if they look closely enough at the photo turned over to authorities by Garcia they actually will see a forked tongue and she said the difference in skin tones could be explained away by flash photography.
The punishment portion of Ortega’s trial is expected to begin at 9:30 a.m. Thursday.
Judge John Shrode of the 358th District Court is presiding over the trial.
