On Nov. 10, Travis Co. District Judge Jon Wisser denied Rosa Estela Olvera Jimenez‘s motion for a new trial in the case of a toddler who died after ingesting a wad of paper towels while in Jimenez’s care. Jimenez was convicted of murder and injury to a child in September and sentenced to 99 years in prison in connection with the 2003 death of 21-month-old Bryan Gutierrez. Jimenez was babysitting for Gutierrez on Jan. 30, 2003 – as she did several times each week – when the child turned blue and collapsed. Paramedics later pulled a wad of five paper towels from Gutierrez’s throat, but he remained in a vegetative state for nearly four months before he died. Police and prosecutors said that there was no way Gutierrez could have stuffed the wad of paper towels down his own throat. Jimenez has maintained her innocence, saying that she had inadvertently left a roll of paper towels in the living room and had moved to the kitchen to prepare lunch when Gutierrez, blue and pointing to his throat, staggered into the room.
In a motion filed with the court, Jimenez’s lawyers argued that the evidence against her – the wad of long-since dried out paper towels – was insufficient to support a conviction, that police improperly conducted a five-and-a-half-hour interrogation of Jimenez in a manner that allowed them to bypass reading Jimenez her constitutional rights, and that her lead trial attorney, Leonard Martinez, failed to provide an adequate defense in part by allowing into evidence several police affidavits, which they say not only contained hearsay evidence, but also violated Jimenez’s Sixth Amendment right to cross-examine witnesses against her. “It’s impossible to cross-examine an affidavit,” said Keith Hampton who, with attorney Kristin Etter, is handling Jimenez’s appeal. Wisser ultimately denied the motion; an appeal to the Third Court of Appeals is pending.
This article appears in November 18 • 2005.