Travis County DA’s office recommends new trial for babysitter in toddler’s death

AUSTIN (KXAN) — The Travis County District Attorney’s office has agreed to a new trial for a woman originally convicted in the 2003 death of a 21-month-old.

D.A. Margaret Moore said attorneys from Travis County Trial Division, Special Victims Unit and Conviction Integrity Unit have been reviewing Rosa Jimenez’s case, as well as the new evidence brought forth by her defense lawyers.

In a letter sent to Jimenez’s defense team on Monday, Moore said the reviewing attorneys have recommended a new trial for Jimenez.

But Moore told KXAN the decision about whether a re-trial would happen was not in their control.

“Whether or not Ms. Jimenez will get a new trial is completely in the hands of the Attorney General and the federal courts,” Moore said.

The Texas Attorney General’s office is still considering Jimenez’s appeal following a federal judge’s 2019 decision to overturn her conviction.

In 2005, Jimenez was tried and convicted of murder and injury to a child, in the death of 21-month-old Bryan Gutierrez.

Jimenez was babysitting the boy when he choked on a wad of paper towels in 2003.

Jimenez is represented by the Innocence Project, who said they have presented new evidence to the D.A.’s office: one expert witness who has testified in an appeal of Jimenez’s case, and three new expert witnesses.

Vanessa Potkin, Director of Post-Conviction Litigation for the Innocence Project, told KXAN the witnesses are some of the top pediatric airway experts in the nation, ready to testify that what Jimenez was convicted of was a “tragic accident.” She explained that this new evidence was presented to Moore’s team of reviewing attorneys in late March.

“It was a consensus among my attorneys that the newly developed potential testimony could be credible to a jury,” Moore stated in the letter. “In their view, justice would be served by agreeing to a retrial of the case.”

After receiving the letter from Moore, Jimenez lawyers filed a response in court, stating, “If the Office of the Attorney General does not move to dismiss its appeal it will now be fighting to uphold a conviction in a case where the prosecuting agency, the Travis County District Attorney’s Office, has said, based on new expert evidence of innocence, that the defendant did not receive a fair trial.”

In the letter, Moore clarifies that her attorneys “saw no ground for a finding of actual innocence.”

In 2019, a federal magistrate judge overturned her conviction. Judge Yeakel called for a retrial of her case orher release, on the basis that she was “deprived of her Sixth Amendment right to a fair trial,” referencing the inadequate testimony of her defense expert.

The courts issued a deadline for that decision: Feb. 25, 2020.

However, less than a month before that deadline, the 5th Circuit Court of Appeals granted a motion by the attorney general’s office to suspend Yeakel’s order while it considered the appeal.

In an exclusive interview with KXAN’s Avery Travis, Jimenez discussed her life from prison while the fate of a new trial was pending in courts.

“My body is here, but my mind shouldn’t be here,” Jimenez told KXAN at the time. “I’m free, you know?”