ACounty Judge has ordered a new trial for a babysitter who was convicted of killing a 21-month-old child.
In 2003, Jimenez was babysitting 21-month-old Brian Gutierrez at her apartment in northwest Austin when she found the boy choking.
He was rushed to the hospital where they discovered a wad of paper towels lodged in his throat. The towels were pulled out and the boy resuscitated. However, he died three months later.
Jimenez’s court appointed attorney contended it was an accident.
On Friday Judge Baird found the jury should have heard more evidence to support that defense theory.
Throughout the trial, prosecutors claimed Jimenez stuffed the towels down the child’s throat.
Rosa Jimenez was convicted of killing Bryan Gutierrez in 2005.
The state presented a number of experts who said it would have been impossible for Gutierrez to do this himself.
Jimenez filed an appeal last October.
Judge Charles Baird said there is evidence that the choking could have been accidental and not murder.
Bryce Benjet, one of Jimenez's attorneys, also says there is no evidence to indicate the paper towel was forced down the child's throat.
"We've gone out and we've found some of the most prominent experts in the country on choking, on removal of obstructions from the airway and on child death, and each of them has come to the conclusion that there is really no evidence that this was child abuse, but that instead this was likely an accidental choking.'
The Travis County District Attorney's office say they stand by the original ruling.