Rosa Olvera Jimenez has maintained her innocence since she was arrested in 2003 and a jury convicted her of murder for the death of a boy who choked on paper towels while she was babysitting him.
(CN) — A Texas woman convicted of murder for the choking death of a toddler was released on bond Wednesday after 17 years behind bars thanks to an investigation by four medical experts.
Rosa Olvera Jimenez was babysitting 21-month-old Bryan Gutierrez in her Austin apartment on Jan. 30, 2003, when he swallowed a wad of paper towels.
Jimenez, then 20, found him choking. She did not have a phone so she carried him to a neighbor’s apartment and asked them to call 911.
Paramedics pulled the paper from the boy’s throat with forceps and rushed him to the hospital. Doctors could do nothing as he had suffered brain damage from lack of oxygen. He remained unresponsive and died three months later when his mother took him off life support.
After Child Protective Services removed her 1-year-old daughter from her custody, Jimenez was arrested, convicted of murder and injury to a child, and sentenced to 99 years in prison.
Following her release from prison Wednesday, Jimenez, an undocumented immigrant from Mexico, was transferred to the custody of U.S. Immigration and Customs Enforcement agents, who took her to a field office in San Antonio before releasing her.
She and her attorney Vanessa Potkin of the Innocence Project were met by TV reporters outside the ICE office.
Potkin said ICE had intended to deport Jimenez by driving her to Mexico on Wednesday, but the Mexican Consulate in San Antonio intervened and convinced ICE to release her.
“I want to go to church. That’s the first thing I want to do before I do anything else,” Jimenez told the media.
Her daughter is set to get married this weekend.
“I’m going to be there. … I’m so excited after all this time. I’m going to make it. The most important time of her life I’m going to be there. That’s exciting,” Jimenez said.
Jimenez, 38, has maintained her innocence in numerous appeals. Her latest habeas petition convinced Travis County District Judge Karen Sage, who ordered her released on bond during a hearing Tuesday.
The Travis County District Attorney’s Office agreed with Sage that Jimenez should be released on bond based on a consensus statement four pediatric ear, nose and throat doctors wrote last March, concluding Gutierrez’s death was likely the result of an accident.
“Inserting a string or wad of paper towels would be exceedingly difficult even with additional adults restraining the child,” the pediatricians wrote. “A single individual attempting this on a 21-month-old boy would find this task nearly impossible.”
Refuting the testimony of medical professionals who testified against Jimenez in her 2003 trial and said Gutierrez’s gag reflex would have prevented the paper towels from getting stuck in his throat, the pediatricians wrote that doctors find it “almost impossible” to use a tongue depressor to view an uncooperative child’s tonsils.
“Viewing an uncooperative child’s tonsils is considerably easier than forcing a foreign object into a child’s throat,” they wrote.
Sage granted Jimenez a bond after a hearing Tuesday in which three of the pediatricians testified and another doctor, who had originally testified against Jimenez, filed an affidavit stating, based on the pediatricians’ expert opinions, she now believes it’s possible Gutierrez’s death was accidental.
Sage found Jimenez’s due process rights were violated because prosecutors presented false and misleading testimony during her trial, in findings of fact and conclusions of law she issued Wednesday, which were agreed upon by the Travis County District Attorney’s Office and Jimenez’s lawyers.
“The court determines that applicant’s trial was infected with constitutional error and that applicant is likely innocent of the crimes for which she was convicted,” Sage wrote.
Those findings will now be sent to the Texas Court of Criminal Appeals, which will decide whether to vacate Jimenez’s convictions and grant her a new trial or declare her innocent.
Jimenez also found success in federal court in October 2019 when U.S. District Judge Lee Yeakel granted her habeas petition and ordered the state to give her a new trial or release her within four months.
But Texas Attorney General Ken Paxton appealed and convinced a Fifth Circuit panel to stay Yeakel’s order in January 2020, pending resolution of the appeal.
Jimenez, who suffers from advanced kidney disease, will remain in Travis County while the Texas Court of Criminal Appeals reviews Judge Sage’s findings, the Travis County DA’s Office said in a statement Wednesday.
She is also represented by Sara Ann Brown with the Dallas office of Foley & Lardner and Matthew Rowen with the Washington office of Kirkland & Ellis.