Jimenez v. State

Decision Date31 August 2007
Docket NumberNo. 03-05-00633-CR.,03-05-00633-CR.
Citation240 S.W.3d 384
PartiesRosa Estella JIMENEZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Leonard Martinez, Karyl Anderson Krug, The Law Office of Karyl Krug, P.C., Austin, for Appellant.

Ronald Earle, Dist. Atty., Holly E. Taylor, Asst. Dist. Atty., Austin, for The State of Texas.




The jury convicted Rosa Estella Jimenez of the offenses of felony murder and injury to a child. See Tex. Penal Code Ann. § 19.02(b)(3) (West 2003), § 22.04(a)(1) (West Supp.2006). Punishment was assessed at 75 years' imprisonment for felony murder and 99 years' imprisonment for injury to a child. In five points of error, Jimenez challenges the legal and factual sufficiency of the evidence supporting her convictions, complains of prosecutorial misconduct, alleges ineffective assistance of counsel, and asserts a double jeopardy violation. We affirm the judgment.


The jury heard evidence that on January 30, 2003, Jimenez, a 20-year-old woman, was babysitting B.G., the 21-month-old child of Victoria Gutierrez. Gutierrez testified that Jimenez babysat B.G. two or three times a week, at Jimenez's apartment, during the day while Gutierrez worked. Gutierrez testified that B.G. liked to play with objects in her kitchen and "take everything out." Gutierrez recounted how B.G. liked to "drop" the objects from the kitchen into the toilet. Gutierrez also explained that B.G. liked to play with paper and that he once placed an entire roll of toilet paper into the toilet. Gutierrez emphasized, however, that B.G. never put paper towels in his mouth.

Irene Vera was Jimenez's neighbor. Vera testified that on the day of the incident, Jimenez came to her door crying, asking for help, and holding B.G., who looked "limp and purple." Vera asked Jimenez to tell her what had happened. Jimenez responded that she thought B.G. had swallowed something. Vera took B.G. from Jimenez, placed him on the floor, and attempted to check the inside of his mouth. However, she could not get her finger very far into B.G.'s mouth because he kept biting down on it. Vera noticed "a little bit of blood" in B.G.'s saliva "coming out the sides of his mouth." The blood appeared to be fresh.

Vera tried to ascertain more details from Jimenez about what had happened to B.G. Jimenez, according to Vera, explained that B.G. had been walking toward Jimenez when she saw that B.G. was choking. B.G. then fell to the floor. Jimenez picked him up and "started slapping him on the back" to try to dislodge whatever was choking him. Jimenez also put her fingers in B.G.'s mouth and looked inside but could not find anything. According to Vera, Jimenez thought that B.G. might be choking on a toy. Jimenez told Vera that she immediately brought B.G. over to Vera's apartment.

While Vera was trying to help B.G., another neighbor, Paula Salinas, called 911. The conversation between Salinas and the 911 dispatcher was transcribed and admitted into evidence. Salinas first told the dispatcher that it looked like B.G. was not breathing, that he was bleeding from the mouth, and that he was already dead. The dispatcher instructed Salinas to get closer to B.G., and once she did, Salinas reported that B.G. was still breathing and that it looked like he was trying to throw up. When a police officer arrived at the scene, the dispatcher heard the officer state, "No pulse, not breathing, CPR in progress." The dispatcher testified that sometimes lay people mistake "agonal" respirations for breathing, and that this could explain the discrepancy between Salinas's statement that the child was breathing and the officer's statement that the child was not breathing. The dispatcher testified that the time between when a person stops breathing and the time a person can no longer move is four to six minutes. The dispatcher remained on the phone throughout the incident. The dispatcher recorded the following times during the call:

                  13:28  911 call comes in
                  13:31  Police officer arrives
                  13:32  EMS arrives
                  14:20  EMS closes out the call (which is
                         when, according to the dispatcher
                         EMS transports the patient to the

The Austin Police Department officer who responded to the 911 call was William Torres. Officer Torres also testified at trial. When Officer Torres arrived at the apartment, he noticed B.G. lying on the floor on his back with Vera kneeling on his right side, checking his breathing. Torres immediately knelt down on B.G.'s left side, lifted and held B.G.'s head and neck, listened for a breath, and checked for signs of life. Torres could not feel a pulse. He explained:

He had a little bit of blood on his cheek, but there was no movement at all. . . . His eyes were wide open. They wouldn't even move. His lips were blue and starting to get puffy. His mouth was open but not all the way. . . . Because I remember when I put — I tried to put my finger in there, it would only go about half way.

Torres then performed CPR on B.G. B.G. did not respond, and this indicated to Torres that "the airway [was] not going through to his chest" and that there was something stuck in B.G.'s throat.

Shortly after EMS arrived and began treating the child, Torres went outside the apartment to check on Jimenez, whom Torres initially had assumed was B.G.'s mother. Torres testified that Jimenez was crying and screaming, "How is he? How is he? Is he okay? Is he okay?" Torres replied that he did not know. One of the EMS technicians came outside and asked if B.G. had swallowed anything. According to Torres, Jimenez responded that B.G. had been playing with toys, but that she did not know what he had swallowed.

Torres began asking Jimenez questions to obtain additional information about B.G. Torres soon discovered that B.G. was not Jimenez's child. He asked Jimenez if she knew how to contact B.G.'s mother. Jimenez responded that she had written the mother's telephone number on a magazine in her apartment. Torres then accompanied Jimenez to her apartment to search for the magazine. Torres testified that while they were looking for the magazine, Jimenez explained repeatedly that B.G. and Jimenez's one-year-old daughter had been playing with toys while Jimenez was cooking, and that while she was cooking, she called out for B.G. to bring her a roll of paper towels. When B.G. did not respond, Jimenez went to look for him and found him lying on the floor and not breathing.

Jordan Rojo, one of the EMS paramedics, testified that when she and fellow paramedic Rob Curr arrived at the scene, they observed that B.G. was not breathing and had no pulse. His lips had already turned blue from lack of oxygen. Rojo opened B.G.'s mouth with her hand, looked down his mouth, and found no obstruction. Rojo attempted unsuccessfully to force air into B.G.'s lungs. Curr then attempted to intubate B.G.1 With the aid of a laryngoscope, Curr noticed an obstruction "entirely covering the trachea." Using forceps, Curr attempted to remove the object. Curr immediately noticed that the obstruction was "falling apart," and initially he was only able to dislodge two "dime-sized" pieces of it. Rojo, who believed that B.G. was choking on food, asked Curr if the object was brisket because "it was red and kind of looked fleshy like meat." Curr told her that it was paper. On the third attempt to remove the obstruction, Curr pulled out the remainder of the object. Curr testified that when the object finally dislodged, "it made a very sickly sucking sound." Because of the object's size, Curr had difficulty extracting it past B.G.'s teeth. Rojo described the object as a "large mass" of "blood soaked"2 paper towels, "the size of a large egg."3

Rojo explained that she was shocked at the size of the mass, how far into B.G.'s airway it had been lodged, and the amount of blood on it. She testified that at this point, she no longer believed that B.G. had accidentally choked. Curr testified that he was also surprised, as he was expecting to find "a food product or a toy" because "[t]hat's typically what children choke on." He was not expecting to find "a wad of paper towels."

The paramedics then transported B.G. to the hospital. Board-certified pediatric emergency physician John Boulet treated him in the emergency room. Dr. Boulet testified that B.G. was "completely comatose" by the time the child arrived in the ER. One of the paramedics showed Boulet the wad of paper towels that had been recovered from B.G.'s throat. Boulet recounted that the wad appeared to be close to the size of his fist. Boulet testified that in his opinion, an object of such a size would not go down a child's airway accidentally, that "it would have to be put down there." Boulet was also asked his opinion regarding whether a 21-month-old child would be capable of putting an object of that size "down that far into his airway." Boulet stated that a 21-month-old child would not be capable of such an act because the child's gag reflex would prevent the child from pushing such an object that far down his throat.

Dr. Patricia Oehring, a pediatric intensivist who specializes in the critical care of children, treated B.G. following his transfer from the emergency room to the intensive care unit. Dr. Oehring testified that B.G. had suffered a "hypoxic brain injury" due to lack of oxygen caused by the obstruction in his airway. Oehring also explained that B.G.'s brain had been deprived of adequate oxygen for "probably 30 or 40 minutes" and that this was "absolutely not" consistent with Jimenez's claim that she "immediately" rushed B.G. over to Vera's apartment once she discovered B.G. choking. Oehring further testified that it takes as long as 45 minutes to an hour for a heart to stop beating after being completely deprived of oxygen.

A few hours after B.G. had been admitted to the...

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