Father of drowned baby goes to court

Kim Smith

Monday, July 31, 2000 | 11:08 a.m.

The mother of an 11-month-old baby who drowned in a bathtub in May testified Friday against the baby's father, who has been charged with second-degree murder in the death.

Friday was the first day in the preliminary hearing of Johnny Avila, who also faces a felony child-neglect charge in the May 28 death of Katie Cortes.

Prosecutors allege that Avila put the girl in a baby shower seat, set her in a running tub and fell asleep while high on cocaine.

A tearful Denise Martinez told Justice of the Peace Jennifer Togliatti that on May 28 she was forced to get a ride home from her job at a local fast-food restaurant because Avila didn't answer repeated phone calls to their apartment.

When she got home and opened the door, she saw the bathroom light on and heard the bathtub running. She found Avila asleep in the master bedroom.

"I think he realized that he had left the baby in the bathroom and he got up and started yelling and screaming," Martinez said.

Avila got the baby out of the tub, Martinez said, and she began CPR, telling him to call 911.

Martinez said Avila was so upset that he was unable to talk to police dispatchers.

Martinez said she and Avila had never before filled the tub while bathing the baby.

She also told Chief Deputy District Attorney Doug Herndon she didn't know that Avila used drugs, but admitted that her apartment manager once had to enter their apartment because Avila couldn't be awakened and the baby was seen from a window screaming.

Under cross-examination from defense attorney Marty Hastings, Martinez said the baby had been suffering from a fever earlier that day and her mother had suggested bathing her in cold water.

As Avila sat at the defense table crying, Martinez testified she believes the baby died as a result of an accident.

Forensic pathologist Lary Simms testified Friday that he ruled the baby's death a homicide only after reading a legal precedent given to him by a prosecutor. He said, however, he often reads legal documents before making rulings on manners of death.

The baby showed no signs of an infection, Simms said.

The preliminary hearing is expected to continue on Aug. 28, when a doctor hired by the defense will be available to testify.