Rosa Jimenez

The Crime

On Jan. 30, 2003, 20-year-old Rosa Jimenez was seven months pregnant and babysitting for Bryan, the son of Victoria Gutierrez, while Ms. Gutierrez was at work. In the early afternoon, Ms. Jimenez came to the door of a neighbor, Irene Vera. Ms. Jimenez, who was crying, was holding Bryan, and asking for help. She said she thought Bryan had swallowed something. Ms. Vera put the child on the floor and put her finger into his mouth. In response, the boy bit down on her finger. 

Paramedics were summoned. One of them eventually used forceps to remove a wad of paper towels from the boy’s throat, later estimated by one physician to be as large as an adult fist.

Bryan was taken to the hospital. Physicians who saw the boy and the wad of paper towels immediately concluded that it was too big for him to have accidentally swallowed it — that it must have been forcibly pushed down his throat. The boy was hospitalized. He had no cognitive functions.

The Investigation

Ms. Jimenez was taken to the police station where Detective Eric De Los Santos interviewed her. The interview was conducted in Spanish and recorded on videotape. 

During the interview, Ms. Jimenez told Detective De Los Santos that Bryan and Ms. Jimenez’s one-year-old daughter were both suffering from colds that day and that at one point she had used a paper towel to blow Bryan’s nose. She said she left a roll of paper towels on the sofa and then went to the kitchen to cook. 

She said she then noticed that Bryan and her daughter were playing with the paper towels. She told Bryan to stop. However, she said, he continued to tear sheets from the roll and throw them. Ms. Jimenez said she saw Bryan go to the bedroom, leaving the roll of paper towels on the sofa. She said she told Bryan to “come over here where I can see you” because she did not want him to go into the bathroom and put his hands into the toilet bowl — something he was prone to do. 

Ms. Jimenez said she then saw Bryan coming toward her, “walking very slowly,” with his hand on his throat. She saw that he was very red and asked him what was wrong. When he did not answer her, she became concerned that he was choking.

Ms. Jimenez said she took Bryan into the bathroom, squeezed his cheeks together, put her fingers in his mouth to try to look inside, and hit him on the back to try to dislodge what was in his throat. When this was not successful, she took Bryan to Ms. Vera’s apartment, arriving only about a minute from when she first realized the boy was choking. 

During the interview, Ms. Jimenez denied putting the paper towels in Bryan’s mouth. However, under repeated questioning from Detective De Los Santos, Ms. Jimenez said she could not remember if she did or not. As the interview continued, Ms. Jimenez expressed concern for her daughter, who had been taken into protective custody by Child Protective Services (CPS). 

Late in the interview, Ms. Jimenez asked Mr. Detective De Los Santos if she could speak with him “as a friend.” Detective De Los Santos agreed and accompanied her outside. Unbeknownst to Ms. Jimenez, Detective De Los Santos was secretly recording their conversation with a digital audio recorder in his pocket. During the conversation, Ms. Jimenez asked, “If I were to tell you that I did it, what would happen?” Detective De Los Santos said he would present that information to the prosecutors and that there was a possibility that she would go to prison. He tried to ask more questions, but Ms. Jimenez declined to talk further until she saw her daughter.

Back in the interview room, Detective De Los Santos made arrangements with CPS to allow Ms. Jimenez to visit with her daughter at the station. But even after she saw her daughter, Ms. Jimenez refused to answer any more of Detective De Los Santos’ questions. 

Several hours after she returned home, on Jan. 31, 2003, Ms. Jimenez was arrested on a charge of injury to a child.

Nearly three months later, on April 27, 2003, Bryan died. He had never regained any cognitive functions, although he had been able to breathe on his own. Felony murder was subsequently added to Ms. Jimenez’s charges.

The Trial

In August 2005, Ms. Jimenez went to trial in Travis County Criminal District Court. The prosecutors, Allison Wetzel and Gary Cobb, relied upon medical testimony as well as testimony from police and paramedics.

Bryan’s mother, Victoria Gutierrez, testified for the prosecution that Bryan liked to take everything out of the kitchen cabinets and drop them into the toilet. She said he liked to play with paper and once dropped an entire roll of toilet paper into the toilet. She said, however, that she did not know him to put paper towels into his mouth.

Austin Police Officer William Torres testified that he was the first officer to respond to the 911 call. He could not feel the boy’s pulse. He said Bryan did not respond to CPR because something was stuck in his throat. Officer Torres said that when the paramedics arrived, he went outside and talked to Ms. Jimenez. She was crying and demanding, “How is he? Is he okay?” 

Officer Torres said she did not know what Bryan had swallowed. When Officer Torres and Ms. Jimenez went to retrieve the phone number for Victoria Gutierrez, Ms. Jimenez said that she was cooking when she called out to Bryan to bring her the roll of paper towels. Officer Torres said she told him that when Bryan did not reply, she went to look for him and found him lying on the floor and not breathing.

Jordan Rojo, one of the paramedics, testified that when she and fellow paramedic Rob Curr arrived, Bryan was not breathing, had no pulse, and his lips were blue. Ms. Rojo said she tried to force air into the boy’s lungs, but could not. Mr. Curr then tried to intubate the boy and noticed an obstruction covering the trachea. Mr. Curr tried to remove it with forceps and noticed it was falling apart. After they retrieved two dime-sized pieces, Ms. Rojo believed the boy was choking on food. Mr. Curr told her it was paper. On the third attempt, Mr. Curr pulled out what Ms. Rojo said was a “large mass” of paper towels.

Ms. Rojo testified that she was stunned at the size of it, how far it was lodged in Bryan’s airway, and the amount of blood on it. She said that at that point, she no longer believed the boy had accidentally choked.

Mr. Curr testified that he was surprised as well and expected to find “a food product or a toy” because that’s “typically what children choke on.”

Dr. John Boulet, a pediatric emergency physician, testified that Bryan was comatose upon arrival. Dr. Boulet testified that the wad of paper towels appeared to be close to the size of his fist. He testified that an object of such size would not go down a child’s airway accidentally — “It would have to be put down there.” Dr. Boulet said a 21-month-old child was not capable of doing it to himself because the child’s gag reflex would prevent the child from pushing such an object that far down his throat. According to one estimate, the wad consisted of five sheets of paper towel.

Dr. Patricia Oehring, a pediatrician, testified that she treated the boy following his transfer to the intensive care unit. She said the boy had suffered a “hypoxic brain injury” due to lack of oxygen. She said his brain had been deprived of oxygen for “probably 30 or 40 minutes.” Dr. Oehring said this was “absolutely not” consistent with Ms. Jimenez’s claim that she took the boy to the neighbor about a minute after she discovered him choking. Dr. Oehring testified that she had seen a photograph of the wad of paper. She said that “it looked like an organ that had been removed from a body, actually. It was not identifiable as paper towels.” 

Dr. Oehring agreed that the boy’s gag reflex would have prevented him from forcing a large object down his mouth. She also said an adult had to have put the towels in the boy’s mouth. Dr. Oehring added that the child would not have the dexterity or strength to wad the paper towels together, and not enough saliva to wet the paper towels so they could fit in his mouth. She speculated that the wad must have been soaked in water before being put in the boy’s mouth.

Dr. Elizabeth Peacock, Travis County deputy medical examiner, testified that the cause of death was damage to the brain due to lack of oxygen. Dr. Peacock did not perform the autopsy, but after reviewing the autopsy report, she agreed the death was a homicide. 

The defense called Wilson Young, a DNA/serology analyst with the Texas Department of Public Safety who had analyzed objects seized from Ms. Jimenez’s apartment as well as the paper towels from the boy’s throat. He said Bryan’s DNA was found on a faucet handle in the bathroom. He said that Ms. Jimenez’s DNA was not present on the towels. 

During cross-examination, Mr. Young said that did not mean Ms. Jimenez had not touched them. In addition, he said that because the towels had been removed from the mouth of the boy, “that would create a situation such that the cells from within that person’s mouth would be the predominant cell structure, cell type that would be on that item.”

Dr. Ira Kanfer, a forensic pathologist and medical examiner, testified for the defense that if five paper towels had been forced down a child’s throat, there would have been some evidence of trauma “around the cheeks, the lips, the teeth, [or[] a cut gum” because the child is “going to fight like hell.” He said that in his opinion, the blood on the paper towels was consistent with pulmonary edema, a reaction that occurs when someone is choking — although Dr. Oehring and Dr. Boulet had testified earlier that the blood was not from pulmonary edema. Dr. Kanfer said that various attempts to resuscitate the boy may have driven the wad further into the esophagus and further obstructed the child’s airway. 

The defense also called Dr. Randall Alexander, a pediatrician who the prosecution intended to call as a rebuttal witness. Dr. Alexander, who was treated as a hostile witness, was called to testify before the prosecution cross-examined Dr. Kanfer. The defense sought to bolster Dr. Kanfer’s testimony. Dr. Alexander testified that if a child’s airway was completely blocked, the heart would not continue to beat for an hour. Dr. Alexander also testified that pulmonary edema might or might not occur when the airway is blocked. 

The prosecution then was allowed to question Dr. Alexander, and he supported the prosecution’s case, essentially concurring with the prosecution’s other medical experts. He agreed that it would have been impossible for a child of Bryan’s age to force five paper towels down his own throat, let alone wad them tightly enough to fit into his mouth.

When Dr. Alexander finished testifying, Dr. Kanfer returned for cross-examination. His testimony was problematic. He admitted that he had stopped keeping his licenses up to date because the money required for registration was better off in his own pocket, and he admitted he had authored a paper called “How to turn a homicide into an accident.” 

During a break in his testimony, Dr. Kanfer made what an appeals court would later describe as a “rather contemptuous comment about the prosecutors.” Prosecutor Wetzel brought it to the jury’s attention during the cross-examination. 

Fidel Juarez, Ms. Jimenez’s husband, testified that in the past, he had seen Bryan playing with paper and putting it in his mouth. When asked about paper towels, Mr. Juarez said, “Yes, when I was eating, he was always tempted to grab that roll of paper towels.” Mr. Juarez also said he had seen the boy put a single sheet of paper towel in his mouth, but he had taken it away from him.

The defense called several witnesses who testified that Ms. Jimenez was a peaceful person, not quick to anger, and a good mother who loved and took good care of children.

The defense also called Dr. Vladimir Parungao, the pathologist who had performed the autopsy on Bryan, in an attempt to discredit his finding that the death was homicide. The defense suggested that Dr. Parungao had been influenced by the police, but Dr. Parungao stood by his finding.

During the initial closing argument, Prosecutor Mr. Cobb relied on the medical experts and also pointed to a mark on Ms. Jimenez’s hand as part of its claim that she had shoved the wad down his throat. Mr. Cobb called it a “bite mark” based on a photograph of Ms. Jimenez’s hand taken during her interrogation, and her statement to Detective De Los Santos that Bryan had bit her.

Ms. Jimenez’s defense attorney, Leonard Martinez, countered by noting that although the prosecution had consulted with a forensic odontologist to examine the mark on Ms. Jimenez’s hand, the expert had not been called to testify. He accused the prosecution of being lazy and failing to find the truth. 

On Aug. 31, 2005, the jury convicted Ms. Jimenez of injury to a child and felony murder. She was sentenced to 99 years in prison on the injury to a child conviction and 75 years in prison on the felony murder conviction.

A motion for a new trial was filed in September 2005. The motion claimed, in part, that the prosecution had improperly argued that the mark on Ms. Jimenez’s hand was a bite mark, even though the state “knew those marks were not bite marks but hyper-pigmentation from an old burn. That was the reason [the prosecution’s] dental expert was not called and no medical expert was asked to identify these marks.”

Ms. Jimenez was granted a hearing on the motion, but the motion was withdrawn. An amended motion was filed on Oct. 28, 2005. The state objected because it was filed after the 30-day window for such motions. The judge sustained the objection, but allowed the defense to introduce evidence of the claims in the amended motion. The judge then denied the motion.

In 2007, the Texas Third Court of Appeals affirmed the conviction and sentence. 

The Exoneration

A documentary, Mi Vida Dentro (My Life Inside), that was filmed during the trial, finally aired two years after the trial. It prompted a wave of outrage. Letters poured in to the Mexican government, which hired a lawyer, Yuriria Marvan, to find an attorney to represent Ms. Jimenez. Ms. Marvan settled on Bryce Benjet, an Austin attorney working on death penalty cases. Mr. Benjet would become an attorney with the Innocence Project, which is affiliated with the Cardozo School of Law, and in 2020, he became the head of the Conviction Integrity Unit at the Queens County, New York District Attorney’s office.

Mr. Benjet filed a state petition for a writ of habeas corpus and ultimately, Travis County Criminal District Judge Charlie Baird held a hearing to hear testimony from experts assembled on Ms. Jimenez’s behalf. 

Dr. Karen Zur, a pediatric otolaryngologist, and Dr. John McCloskey, a pediatric anesthesiologist and critical care specialist, testified, while Dr. Janice Ophoven, a pediatric forensic pathologist submitted an affidavit. All three questioned the reliability of the conclusions offered by the prosecution’s experts at trial and all testified that Bryan’s injury was likely due to an accidental choking.

The prosecution recalled its experts from the trial and all of them reaffirmed their trial testimony. In addition, the prosecution presented Dr. James Eskew, an otolaryngologist, who testified that he did not believe the death was accidental. He did not believe that a child could wad up paper towels of that size and put it down his throat.

In December 2011, Judge Baird granted the writ and ordered Ms. Jimenez’s convictions vacated. 

The judge ruled that Mr. Martinez had provided an inadequate legal defense for Ms. Jimenez by hiring Dr. Kanfer and not seeking additional funds for a better expert. 

Judge Baird’s ruling was a recommendation to the Texas Court of Criminal Appeals (TCCA). In April 2012, the TCCA declined to sustain Judge Baird’s recommendation and ordered Ms. Jimenez’s convictions to stand.

Later that year, Judge Jon Wisser, who had presided over Ms. Jimenez’s trial, wrote a letter to Rosemary Lehmberg, then the Travis County district attorney. In the letter, Judge Wisser expressed concern that Ms. Jimenez had been wrongfully convicted. 

Meanwhile, Mr. Benjet filed a petition seeking leave to appeal the TCCA decision to the U.S. Supreme Court. The petition was denied.

In 2012, Mr. Benjet and attorney Sara Ann Brown filed a federal petition for a writ of habeas corpus. That case stretched out for months, then years. In 2018, U.S. Magistrate Andrew Austin recommended that the writ be granted on the grounds that Ms. Jimenez had not received an adequate defense.

In February 2020, U.S. District Judge Lee Yeakel agreed and ordered that the writ be granted, that Ms. Jimenez’s convictions be vacated, and that the state either dismiss the case or retry it.

At the same time, however, the Travis County Conviction Integrity Unit (CIU) began a review of the case. The CIU reviewed a “Consensus Statement” presented by the defense. The statement, from four leading pediatric otolaryngologists, concluded that Bryan’s death was an accident. Among the conclusions by this team of experts: the gag reflex, which the prosecution’s trial experts claimed would have prevented Bryan from ingesting the wad of papers, would in fact pull the wad further into the child’s throat.

Nonetheless, the prosecution said it would retry the case.

In January 2021, the defense team, which now included several attorneys, including Innocence Project Attorney Vanessa Potkin, filed another petition for habeas corpus in Travis County Criminal District Court. This petition included the Consensus Statement as well as an affidavit from Dr. Peacock saying that she now believed “it is possible that [Bryan’s] death was accidental.” 

On Jan. 27, 2021, following an evidentiary hearing, Travis County Criminal District Judge Karen Sage granted the writ and recommended that Ms. Jimenez’s convictions be vacated. Ms. Jimenez was released on bond that day. By that time, Ms. Jimenez had been diagnosed with end-stage kidney failure and was on dialysis. She moved to New York City in the hope of obtaining a kidney transplant. 

On May 31, 2023, the Court of Criminal Appeals granted the writ and ordered Ms. Jimenez’s convictions vacated. 

On Aug. 7, 2023, the prosecution dismissed the charges.