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Paper-Towel Ruling Goes to CCA

Ruling in writ hearing could lead to a retrial

By Jordan Smith, Fri., Jan. 7, 2011

Now-retired Travis County District Judge Charlie Baird ruled on Dec. 31 (his last day on the bench) that the conviction of Rosa Estela Olvera Jimenez should be tossed out and she be granted a new trial. Jimenez is serving 99 years in prison in connection with the death of toddler Bryan Gutierrez. Jimenez was babysitting Gutierrez in January 2003 when prosecutors say she shoved a wad of five paper towels down his throat, choking him; he died in April 2003.

At trial, local doctors and medical professionals who treated Gutierrez resolutely opined that intentional choking was the only way to explain the paper in the child's throat. But at a four-day writ hearing in December, medical experts brought in by Jimenez's appeal attorney, Bryce Benjet, strongly disagreed with the previous opinions, saying their familiarity with similar choking incidents led them to believe the incident was likely a tragic accident. Benjet argued several claims in his writ – including that Jimenez should be declared innocent, that prosecutorial misconduct marred the original trial, and that Jimenez was denied due process because she was not given access to funds to hire her own experts to testify at her 2005 trial, where she had ineffective legal representation.

Baird disagreed that Jimenez should be granted relief based on actual innocence or on prosecutorial misconduct claims but agreed she should be given relief based on her due process and ineffective assistance claims. Regarding the one expert Jimenez could afford – a man with no experience in pediatrics – Baird was firm: His presence was worse than if she'd had no expert at all. "In my 30 years as a licensed attorney, 20 years in the judiciary, this Court has never seen such unprofessional and biased conduct from any witness, much less from a purported expert," he wrote. Baird's ruling now goes to the Court of Criminal Appeals, which will decide whether to affirm his ruling and grant Jimenez relief.

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