AUSTIN (KXAN) — A woman who has maintained her innocence for nearly two decades after being convicted for a child’s murder, could be released on bond.

After four pediatric airway experts testified in hearing on Tuesday, District Judge Karen Sage said she believed Rosa Jimenez, convicted of murder in 2005, deserves a new trial — and may be innocent. The judge also announced plans to recommend Jimenez’ release on bond in her official findings by Wednesday.

“I do not believe that Ms. Jimenez should spend another night in jail if it could be prevented,” Judge Sage said at the conclusion of the hearing.

21-month-old Bryan Guttierez was in Jimenez’ care in 2003, when he choked on a wad of paper towels and died. At the time, Jimenez claimed his death was an accident, but experts brought by the prosecution testified it would have been impossible for the child to swallow the paper towels on his own.

Over the last 15 years, several judges have questioned her guilt and recommended the case be re-tried. In the latest hearing, several national surgeons and ears, nose, and throat specialists disagreed with the original expert witnesses’ claims.

“We find it extremely unlikely that Rosa Jimenez would have been able to have done this to an uncooperative child without their being other physical evidence of a battle between the two of them,” said Dr. Michael Rutter from Cincinnati Children’s hospital system.

The new experts agreed that the original witnesses likely did not have pediatric experience or were not as familiar with serious airway obstructions as these specialists — and according to Texas pediatric otolaryngologist Dr. Ron Mitchell, “defaulted into a conclusion that was just simply wrong.”

They each noted how difficult it was for a physician or surgeon to get access to an uncooperative child’s airway, even with a simple tongue depressor.

“Usually this involves both having the parent holding the child’s arms with one arm and their head with another arm. Often, they will clamp their teeth shut,” Rutter explained. “That’s a good way of losing a finger.”

The experts also debunked prior claims that the boy’s gag reflex would have prevented himself from stuffing the paper towels into the part of his throat where they were found. They explained that the body’s natural defense against choking — attempts to swallow — could have compacted the program.

Rutter said, “The only explanation we can see is that, sadly, Bryan introduced the foreign body himself.”

“These are the experts the jury should have heard from,” said Sara Ann Brown, one of Jimenez’ attorneys, of the original trial.

The Travis County DA’s office did not bring any opposing witnesses forward. They told KXAN they have been in contact with the baby’s mother “from the moment they received the filing from the defense” and met with her again this week.

José Garza said in a statement,” This case has been a tragedy for all involved and our heart breaks for Ms. Gutierrez for the loss of her son and the suffering she and her family have experienced through this process. We have a responsibility to aggressively seek out and pursue innocence and will continue to do just that.”

Judge Sage plans to present her findings officially on Wednesday, and give her recommendations to the 5th U.S. Circuit Court of Appeals, where her case is ongoing.

The appeal

In 2019, a federal judge gave prosecutors a deadline of Feb. 25, 2020 to give Jimenez a new trial or release her from prison.

Texas Attorney General Ken Paxton appealed this decision, vowing to keep Jimenez in jail while the case was up on appeal.

“A new trial can only commence at the direction of the higher courts already reviewing this horrific murder case,” he said.

The appeals court will ultimately decide whether or not to grant relief to Ms. Jimenez. However, due to an agreement with the District Attorney’s office, the Judge’s decision on Wednesday could determine whether Jimenez is eligible to be released from prison on bond. Brown and Jimenez’ other lawyers with the Innocence Project said that could happen in just a few days.

She’s been serving her 99-year sentence in the Mountain View Unit in Gatesville, Texas.

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

When asked how hard it has been fighting to clear her name, Jimenez responded, “To me, a name is just a name. I just want to go home — that’s all I want to do.”

  • Watch the exclusive interview here.

What’s next?

The Innocence Project is working with U.S. Immigration and Customs Enforcement officials to get them to release their hold on Jimenez, while they await a decision about a new trial. Jimenez was not a U.S. citizen at the time of her arrest. They are also in touch with the Mexican consulate.

If the judge rules in favor of her release on bond, the Innocence Project also has social workers who will be ready to step in.

“She’s been in prison for most of her life at this point, so this is going to be a big transition for her,” Brown said.

Jimenez has received news that her daughter, who was a baby when Jimenez was arrested, has plans to be married this weekend. Brown said their hope is to be able to the reunite mother and daughter before that day.