On Friday, 15 March 2019, a story about a past child sex assault conviction surfaced about Houston drag queen Tatiana Mala-Niña. About Magazine and guest contributors dug into the details of the case to provide unreported information about the trial, the allegations, and an affidavit signed by the accuser asking for all charges to be dropped.
In the interest of maintaining journalistic integrity, I have made a conscious effort — along with contributors Jonny Lessard, Scott Lupton, and Wendy Taylor — to delve deeper into the happenings of the case recently brought back to light regarding Tatiana Mala-Nina, who was convicted of Aggravated Sexual Assault of a Child in 2009. The story was presented following the already controversial coverage of local Drag Queen Story Time, which took place at the Freed-Montrose Library once a month in Houston’s Montrose neighborhood. Reviewing the stories published by fellow online and print publications, as well as numerous television news stations, it felt necessary to provide more facts about the case than what had been laid out before. This is not an opinion piece. This is not a defense of either party involved in the trial. This article is designed simply to lay out the facts that have and have not been reported, as well as to pose questions that may have not yet been heard.
It is also important to note here that most news outlets have been using the pronouns he/him/his when referring to Mala-Nina. Tatiana Mala-Nina is a transgender woman and should be referred to using the she/her/hers pronouns. The only context in which we will be using her dead name (a name by which a trans person is called pre-transition) is when quoting documentation from the court file.
(HOUSTON) — Just over one week ago, in the early evening of Friday, 15 March, Houston news station KHOU published a story in which it was revealed that popular Houston drag queen Tatiana Mala-Nina (who had been reading to children at the popular Drag Queen Story Time event at the Freed-Montrose Library) was a convicted sex offender. Initial reports were relatively vague, with journalists using their very limited information to break a story around a subject that has been at the center of heated discussion over the past few months. Since Drag Queen Story Time first began in Houston — previously put together once a month by Trent Lira and Devin Will, until their recent resignation as directors of the program — it has been met with its share of acclaim, but has also been subjected to backlash and criticism. On the inside, local drag queens put on their made-up faces and don their most fantastical dresses while reading an age-appropriate book to the children who are there not only to learn a lesson in literacy, but in acceptance.
But outside of the library’s walls, matters aren’t quite as calm. Anti-LGBTQIA protesters would gather along the sidewalk thrusting signs quoting biblical verse, hate speech, and condemnation. One group in particular was hoping to do away with Drag Queen Story Time; and they go by the name of MassResistance, a conservative values group based out of Massachusetts that is known for taking a stand against LGBTQIA-positive issues in the name of “traditional values”. It was MassResistance that brought Tatiana Mala-Nina’s criminal history under the press light; and spreading this news was only just the beginning of a much larger fallout.
The offense in question is a matter of public record: Mala-Nina was registered as a sex offender after being convicted of aggravated sexual assault on a minor under the age of 14 in June of 2008. Further details revealed that the accuser was the child of a family friend, and that Mala-Nina had been sentenced to five years of probation and community service, which ended in June of 2016 without incident. Within hours of the article stating her sex offender status hitting the internet and the story playing across the five o’clock news, it seemed as though everything in Houston’s queer community had changed. Community members assumed sides, some calling Mala-Nina guilty and disavowing her, others swearing their allegiance and believing that she could not be capable of such an atrocity, and many reserving commentary until more evidence surfaced. Only, it seemed there wasn’t time for that; over the weekend ahead, the news would go on to get picked up by national news stations, and later would become international news. Conservative and liberal-leaning news outlets alike took the story and ran with it — many of the articles referring to Tatiana Mala-Nina by her deadname (and the wrong one, at that) and just as many misgendering her. You see, Tatiana Mala-Nina is more than just a drag queen; she is also a trans woman. While she may have identified as male at the time her conviction took place, her pronouns today remain to be she/her/hers. The fallout got worse, however. People all throughout Houston’s queer community — especially performers, drag and non-drag alike — grew fearful of what might happen at their forthcoming shows, and Tatiana Mala-Nina effectively lost every booking she had around the city.
By Sunday, just when the community thought the worst was over, it became quickly evident that it had only really just begun. As news continued to circulate around the globe, the ins-and-outs of the news report began to get messier. The largest example of this could be when fellow Houston drag icon, Blackberri, became a target after conservative news site Breitbart wrongly used her image rather than Mala-Nina’s when reporting on the story on 16 March. While Blackberri had also read at the library’s story time, her likeness to that of Mala-Nina is considerably small. More importantly, it put Blackberri in a position of danger, as well, once her face had been plastered against the headline, “Nolte: Houston Library Allowed Sex Offender to Read to Kids During Drag Queen Storytime”. Still, after the weekend had passed, many had taken note that Tatiana’s social media pages had been removed from the internet, and most outside of her nearest friends and family had not heard from her, until that Sunday afternoon, when Mala-Nina released the following statement through a friend’s social media:
“By now, many of you have seen the news that is circulating from KHOU. I would like to make a statement, and then am asking you all to respect my need for privacy at this time. I am safe, and with my family, but please don’t contact me for now, I will need some time…
Many years ago, I had a family friend. I had been babysitting her son for many years, and was considered a member of their own family. I made the difficult decision to come out as gay, and my life changed forever.
The boys mother was scared that gay = predator. She concocted a story, and went to the police. Her son attempted to tell the same story, but his changed many times during multiple interviews. There was no physical evidence or witnesses to what she claimed, but as a gay person of color, my side didn’t matter.
They did not have witnesses or evidence. They did not have a case, just a made up story. In the end, it didn’t matter. I plead not guilty. The jury did not all say I was guilty, but the judge defied the jury and chose to convict me.
Did you know that there are over 60 thousand people registered in Texas as sex offenders? Many of these people are in situations like mine. I wish that we could catch anyone who would ever hurt a child, and throw them in the deepest pit we could find. I would never. The catholic church has more sex offenders than any other organization. I would never do anything to hurt anyone, let alone one of our most innocent and vulnerable.
You all know me. I am sorry that this happened. I am sorry that I made a decision that could hurt people. I wasn’t thinking, because I’ve done all I can to put this horrible thing behind me. I am sorry that these horrible people are doing anything they can to attack us. But, I cannot be sorry for something I did not do. I have broken no laws, and although I regret the hurt this is causing, I wanted you all to know what really happened.” (sic).
That status update was shared 57 times from the original post and reached masses all across the queer community of Houston. Still, Mala-Nina was not being seen in a positive light by people in the community. Many questioned what made her accept the volunteer gig to read to children knowing she was a registered sex offender, regardless of whether or not she was innocent. Others stood up to say that, in cases of sexual assault, one should always believe the accuser. But for some, there was something about Mala-Nina’s story that set them to forge a path to find the truth, to look for something that hadn’t been seen that might exonerate Mala-Nina and prove her innocence. After all, this was an 11-year-old case that had been closed since Mala-Nina completed her probation terms in the summer of 2016; and finding details that could help prove her innocence was not going to be easy. That being said, it didn’t stop a few of Mala-Nina’s friends from Houston’s LGBTQIA community.
One of the most instrumental in this research was Jonny Lessard, who stated in an interview that he’s known Tatiana Mala-Nina for upward of seven years. Upon seeing the controversy spark and watching Mala-Nina lose everything, he stated that he felt like he had to do something. “I think there was this part of me — like I’m sure there was for everyone — that just didn’t want to believe it was someone I knew.” That feeling didn’t come singularly to Lessard. Across social media, friends and fans shared similar sentiments, some expressing doubt in the accusations, others hoped that they were not true, and some disappointment. Lessard and his boyfriend, Scott Lupton — a stage performer and former paralegal — had taken the time this past week after the news broke to travel down to Harris County Constable Precinct 6 to review the file related to Mala-Nina’s 2008 case. While unsure of exactly what they might find, both Lessard and Lupton took to the documents hoping something there might be indicative of Mala-Nina’s innocence. “We looked at those documents for about an hour and a half,” Lessard said in our interview. “If I’d had more time, I might have been able to get more information; but with limited time, we were just there looking for facts.”
Facts, believe it or not, are exactly what they found. Reviewing the documents — which included witness statements, court appeals, and more details about the case and are available to the general public — Lessard and Lupton found (again) that the claimant was a child under the age of 14 who had been the child of a family friend. The child alleged that he had requested access to Mala-Nina’s bedroom to play a video game, and that Mala-Nina had obliged under the condition that the child remove his clothing. The child then claimed that the Mala-Nina performed oral sex on the child for a few seconds before requesting that he do the same to her. The child alleges that he did so, but stopped after an additional few seconds, feeling uncomfortable, and left the room. According to trial documents, “The Complainant did not tell anyone what had transpired because the Appellant [Mala-Nina] told him not to, and because he was afraid of the Appellant. However, he did not remember telling the police that the Appellant had never told him not to say anything […]” (sic). Documents go on to say that the child, “[…] stated he was “pretty sure” that the above incident happened to more times when he was around the same age, the only difference being that he was not asked to touch the Appellant.”
The latter detail — regarding the two other instances — came up at an awkward time during the trial. Mala-Nina and counsel were not informed of this until just before the trial, and when the Defense requested time to review these claims. A separate document filed 7 December 2010 outlines an appeal requested by the Appellant and speaks more to this. “The outcry was made in February 2008. From then until trial, the complainant only revealed to police a single incident of assault. The complainant testified that he felt safe talking with the prosecutor though, and mentioned that appellant had also assaulted him on two other occasions. The complainant testified that these occasions occurred in the same place and at some time before the event described during the summer of 2006. The only apparent variation on these occasions was that the complainant was not asked to perform oral sex on appellant.” (NO. 14-09-00828-CR, pg. 3).
Moreover, another point to be considered is that Mala-Nina maintained and continues to maintain her innocence with no explicit admission of guilt to the allegations brought about by the accuser. However, in court documents entitled “Motion In Limine”, it would appear as though (although this is not confirmed) that the court attempted to use a sworn statement by the Defendant (Mala-Nina) of a separate occasion in order to imply guilt. In United States law, a Motion of Limine takes place when an attempt to exclude a testimony is made away from the jury. In the case of Mala-Nina, it would appear as though the testimony in question came from an interview in which Mala-Nina made a statement that reads as such in the Motion In Limine:
“[…] Defendant (currently 21 years of age) and Complainant (currently 10 years of age) were in a public pool when Complainant was younger, Defendant noticed that the Complainant (NOT THE DEFENDANT) had an erection while playing in the pool. As described by Defendant, it was the Complainant who inadvertently came into contact with the Defendant in the pool while Complainant had an erection.” (“Motion In Limine, 3). The court document goes on to state (in paraphrase) that the State of Texas tried to use this as an admission of touching the child inappropriately, but argues, “[…] which is a complete misrepresentation of what Defendant said.]” The same document (and on the same page) goes on to state another instance in which the Mala-Nina was present in the bathroom while the child was showering, but that nothing of any sexual nature took place and that this information was not an admission of guilt. It goes forth to say, “Most importantly, Complainant has affirmatively stated to the Children’s Protective Services interviewers (two separate interviews were recorded with Complainant), and has always stated, to the knowledge and belief of undersigned Counsel based on what has been provided to Counsel through discovery, that Defendant had not engaged in any other alleged sexual molestation.”
As per Mala-Nina’s official statement following the reemergence of this story on Friday last, Mala-Nina was a babysitter of the child in question. If the child was aged 6, 7, or 8 as alleged by said child at the time of these allegations, it may not seem unreasonable that either of the aforementioned incidents happened without sexual foundations, and calls into question why the State would elect to have this testimony be considered — especially so if it were to be used as an admission of guilt. Of all of these facts however, there is one document that raises more questions than all the others, which can be found in a document in the file examined by Lessard and Lupton.
The document is titled “AFFIDAVIT OF NON-PROSECUTION” and is dated to have been filed on 14 September 2009. In the document, which has been transcribed below (a photo of this document has also been included), the child who accused Mala-Nina of the alleged sexual assault claims that he would like all charges against the Defendant dropped and that no further prosecution take place. Unfortunately, in a case such as this where the State is now in opposition of the Defendant, the law does not require that the State drop charges at the request of the Plaintiff (the child). The document reads as transcribed:
“BEFORE ME, the undersigned authority, appeared [accuser’s name redacted] who being duly sworn, stated:
I am a witness in criminal Case Number No. 1169980 in the State of Texas vs. ALBERT ALFONZO GARZA [Mala-Nina], wherein the defendant is charged with the offense of Aggravated Sexual Assault of a Child Under 14.
It is my personal desire that the defendant not be further prosecuted for the offense and that the case presently pending against the defendant be dismissed. I do not wish to testify against the defendant as a witness, although I am aware that I can be compelled to do so if subpoenaed by the State.
I have not been compelled, threatened, or coerced to sign this affidavit in any manner. Nor have I been offered any bribe or improper inducement as a benefit or reward for signing this affidavit. My action in signing this affidavit is knowingly, voluntarily, and freely undertaken on my part.”
The affidavit in which the accuser requests charges be dropped against Mala-Nina. The accuser’s name has been redacted for privacy.
The above affidavit is not to be confused with a retraction of the original testimony of the Plaintiff. It does however, beg the question, “Why?” After the trial had gone on as long as it had, and before the jury had reached a decision on 18 September 2009, why would the child suddenly have a change of heart about the proceedings of the case? It may not be a blatant admission of Mala-Nina’s innocence, but certainly it is worth the consideration that the case — or rather, the handlings of the case — were not properly aligned with the events that took place.
Other details should be considered when reporting on this trial, as well. The first of which being that during an interview, Mala-Nina (who then identified as a gay man) was questioned about the nature of her sexual orientation, at which time she stated that she was a homosexual man. It is stated in page six of the Motion In Limine that, “The interviewer then elicited a great deal of details from the Defendant about the origins, history, and development of his sexual preference.” It was the belief of the Defense then (and remains to be so now) that after discovering Mala-Nina’s sexual identification, the State may have taken prejudice upon the Defendant and the case as a whole, which is why this issue is brought up in the Motion In Limine. The Defense — in order to leave no room for prejudices based on sexuality — wanted this testimony thrown out. In a case like Mala-Nina’s, which was presided over by Judge Mary Lou Keel — a registered Republican and member of the GOP — this Motion In Limine is especially important, as Republicans have a less than positive history with LGBTQIA issues and stand for “traditional family values”.
Another noteworthy piece of information goes back to the jury itself. While reviewing a document titled “General Orders of the Court” dated 18 September 2009, it is found that the jury was, “[…] deadlocked.” It further went on to state, “State requested an Allen Charge and the Defense objected. Court grants the State’s request.” In layman’s terms, an Allen Charge is an order set forth when a jury is deadlocked and cannot reach a verdict. The typical use of this is to have the minority of the jury reconsider their stance on the pending verdict as to prevent a hung jury. It is also worth noting that Allen Charges have been rejected and prohibited in twenty-two states across the U.S., Texas not being one of them (see the case of Early v. Packer, 537 US 3 that describes California’s rejection of Allen Charges). When the jury did return later, however, they had come to a unanimous decision that the Mala-Nina was guilty, although they suggested that a ten-year sentence be probated rather than served in prison. This final detail may be indicative that, although the decision finally became unanimous, there was still room for doubt as to whether or not Mala-Nina was truly guilty.
With all these facts in mind — albeit, possibly too many to absorb all at once — questions still loom as to the truth about what — if anything — happened between Mala-Nina and the accuser. While the Court found Mala-Nina guilty, she has since been meeting with an attorney to further evaluate her options and maintains her innocence in the case. We cannot predict what will come of these efforts, but we can state that the details outlined in the above article are a matter of public record and are able to be obtained and reviewed by any citizen and encourage anyone with more questions to do so. As it stands now (and as mentioned at the beginning of the article) former Drag Queen Story Time directors Trent Lira and Devin Will released a public statement in Houstonia Magazine where they announced that they would be stepping away from the program, and explained their decision to do so. This morning, the Houston Chronicle reported that in spite of this, the City of Houston had initiated plans to resume the program in the future, possibly as early as the summer of this year. The story of Tatiana Mala-Nina and of Drag Queen Story Time is ongoing. About Magazine will continue to provide all of the details as they come to light and unfold.
Both KHOU Channel 11 Houston and MassResistance were reached out to for comment. Neither responded to About Magazine’s outreach.