CCA: No New Trial For Jimenez

Rosa Jimenez (Photo by Jana Birchum)

The Court of Criminal Appeals today denied the appeal of Rosa Jimenez, overturning lower court ruling that granted her a new trial in Travis County's infamous paper towel choking case.

Jimenez was convicted and sentenced to 99 years in prison for the death of toddler Bryan Gutierrez, whom she was babysitting in Jan­uary 2003 when prosecutors say she shoved a wad of five paper towels down his throat, choking him. Gutierrez died in April 2003.

At trial, local doctors and medical professionals who treated Gutierrez insisted that the only way to explain the paper in the toddler's throat was that it was deliberately placed there. But at a hearing in December 2010, a host of medical experts brought in by Jimenez's appeal attorney Bryce Benjet disagreed, saying the injury looked similar to other toddler chokings they'd seen and that the incident was likely a tragic accident.

Former Judge Charlie Baird agreed, issuing an opinion on his last day on the bench that Jimenez's conviction should be thrown out and she should be given a new trial. Baird found that Benjet proffered additional, credible, expert testimony to counter the expert evidence offered by the state at trial. Had Jimenez's jury heard any alternate theory of the crime, it is unlikely that the verdict would have been the same, Baird opined, concluding that Jimenez had been denied due process and that her attorney, veteran defender Leonard Martinez, had rendered ineffective assistance to his client.

The CCA, however, has disagreed – on all points. Martinez did not render ineffective assistance, they ruled, and there were no due process violations to be found (of those it did consider) in the appeal. Indeed, a defendant does not have a right to a contingent of experts (paid for by taxpayers) akin to those that the state has at its disposal (also paid for by taxpayers), the court ruled. "In an ideal world, it might well be wise to have an equal number of experts on each side of a lawsuit, each one matching the skill and experience of his opposing expert," the court wrote. "[Jimenez] makes a compelling argument that she was outclassed and outmatched by the State's numerous experts. But the issue before us is whether the constitution requires that an indigent defendant be provided with an absolute (or even rough) equivalency of experts when the primary contested issue at trial involves the cause of death," the court continues. "Instead, we must conclude that applicant does not have a constitutional right to a 'team of experts' paid for by the taxpayers, and applicant's counsel is not ineffective in failing to request such a team." And, the court ruled, Jimenez has not been able to show that the outcome of her original trial actually would have been different if she had access to additional experts.

You can read the entire opinion here.

Read more on Jimenez's case in our Feb. 4, 2011 story, "A Parliament of Experts."