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Court Seeks More Info in Choking Case

Attorneys asking court to throw out Jimenez conviction

By Jordan Smith, Fri., Nov. 11, 2011

Rosa Jimenez
Rosa Jimenez
Photo by Jana Birchum

The Court of Criminal Appeals has asked lawyers for Rosa Jimenez and the Travis County District Attorney's Office for additional information regarding whether she was denied due process and provided with ineffective assistance of counsel in connection with her 2005 murder trial. 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 appeals 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. That ruling went to the CCA in January, and on Nov. 2, the court issued a two-page order, essentially telling the attorneys that it would like additional information about the case before deciding. Specifically, the court would like to know if it may consider for the first time on appeal whether Jimenez's rights were violated by a trial court decision that denied the defense money to hire experts to counter the state's case. Further, the court wants to know whether Jimenez's trial attorney was ineffective by hiring as its only "expert" a volatile out-of-state medical examiner and by failing to request a mistrial when the doctor had a meltdown on the stand and made threatening remarks to prosecutors. (For more on the case, see "A Parliament of Experts," Feb. 4.)

Briefs to the court are due in early February.

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