Presenting Independent Claims of Actual Innocence Almost Impossible in Texas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


What does “actual innocence” actually mean? It means quite simply that an innocent person has been wrongfully convicted for a crime that he/she did not commit. It is a subject-matter we have devoted significant attention to in recent years, given that 302 persons have been exonerated through DNA evidence since 1989. This past year alone we posted three articles trying to tackle and pin down this issue which stalks our criminal justice system like an Ebola virus. Why the continued interest?


A state prisoner who has been wrongfully convicted, and who has had his wrongful conviction upheld on direct appeal, and who has exhausted all of his state post-conviction remedies, has one last opportunity to establish his/her innocence in a court of law: an application for a writ of habeas corpus in federal court. That is not a friendly venue for state prisoners, even for those wrongfully convicted for a crime they did not commit. All applications for federal habeas relief by state prisoners are governed by the Rules Governing Section 2254 Cases. This means federal courts may consider a state prisoner’s claim of unlawful custody only if his/her conviction was obtained in violation of the Constitution, laws, or treaties of the United States.


State prisoners first face the daunting task of surmounting the federal rule, under 2254(e) (1), that all state court decisions upholding a conviction are presumed to be correct. Then he/she must show, under 2254(d), that any state court decision addressing a federal constitutional claim is either “contrary to” or “an unreasonable application” of a “clearly established” U.S. Supreme Court “precedent.” Now, if these procedural obstacles are not intimidating enough, try to get a grip on this muddy pig: a state prisoner does not enjoy the right to present a “free-standing” claim of actual innocence in federal habeas proceedings; he must support the innocence claim with an “independent” constitutional violation. The Supreme Court, in Herrera v. Collins, qualified this rule somewhat by leaving open the possibility that in a capital case “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional.”


But an innocent state prisoner spending the rest of his/her life in prison is not unconstitutional. Innocence alone is not enough. It must be accompanied by a clear showing of a constitutional violation before a federal habeas court will even consider the issue. Since Herrera was decided in 1993, the Supreme Court has consistently refused to change this position by recognizing a “free-standing” actual innocence claim: Henry v. Skinner (2011), District Attorney’s Office v. Osborne (2009), In re Troy Anthony Davis (2009), House v. Bell (2006), and Schlup v. Delo (1995).


And this brings us to the recent case of Rosa Jimenez in which the Supreme Court once again refused to resolve the “free-standing” actual innocence issue. The refusal is significant because prominent legal scholars from across the country, as well as, Dallas County District Attorney Craig Watkins and the Mexican government urged the Court to do so in the Jimenez case—a case that case has drawn national and international media attention because of her credible claim of “actual innocence.” The Hispanic caregiver was convicted in 2003 in connection with the tragic death of a 21-month-old child in her care. She was given a 75-year sentence for felony murder and a 90-year sentence for the injury to a child. On direct appeal to the Third District Court of Appeals, sitting in Austin, Jimenez raised several constitutional violations but the thrust of her appeal was that the evidence presented by the State had been insufficient to support the guilty verdict—a backdoor route to an “actual innocence” claim. The facts surrounding this issue are extensive—in fact, too extensive to summarize, either from the State or Jimenez’s perspective, to fully appreciate what occurred in the home of Victoria Gutierrez on January 30, 2003. These facts were comprehensively detailed by the appeals court in its September 2007 decision denying Jimenez’s direct appeal.
For purposes of this article, the case presented to the jury revolved around the death of the toddler who choked on a wad of paper towels while in the care of Jimenez, his baby sitter.  The state argued it was the result of intentional child abuse and that the paper towels had been forced down the child’s throat.  The defense argued the death as a terrible accident, the result of the child playing with the paper towels.  Without any direct evidence supporting either version, the jury was forced to rely upon expert witnesses from both sides, testifying about how such an incident might have occurred.

The difficulty in these kinds of cases is that the guilt/innocence of a defendant is decided exclusively by dueling experts. The fact that the toddler choked to death on a wad of paper towels while in the care of Jimenez does not, standing alone, mean she killed the child. Thus, the burden fell on the State to prove beyond a reasonable doubt that Jimenez forced the wad of paper towel down the child’s throat with the intent to kill or do serious bodily injury. Lacking any convincing physical evidence, first hand eyewitness accounts, or a meaningful confession, the State had to depend upon medical experts to show that it would have extremely difficult, if not impossible, for a two-year-old child to swallow, on its own, such a wad of paper towels, and, thus, permitting the jury to draw a reasonable inference that Jimenez had forced the paper towels down the toddler’s throat.


Jimenez’s denials and her character witnesses alone were not sufficient to overcome the State’s inference of guilt. She had to procure the services of her own medical “expert” to testify that it was possible for the child to have accidentally swallowed the paper towels, hoping his testimony would create sufficient “doubt” in the mind of one or more jurors to preclude a unanimous guilty verdict. She was unable to do that, and with the deference the courts of appeal and the Texas Court of Criminal Appeals pay to jury verdicts, it is not surprising that both courts denied Jimenez’s direct appeal.


Having exhausted her direct appeal remedies, Jimenez then sought post-conviction habeas corpus relief under Chapter 11 of the Texas Code of Criminal Procedure. She raised a number of issues but the following two were the primary ones: 1) she was denied due process of law because she had been denied adequate funding to hire experts; and 2) she had been denied effective assistance of counsel because trial counsel had failed to (a) retain qualified experts, (b) make a written request for such experts, and (c) object and request a mistrial and a continuance in response to her own expert’s testimony.

The case was assigned to then-Judge Charlie Baird, who gained national prominence in the Timothy Cole case. Judge Baird conducted an exhaustive evidentiary hearing in December 2010 in the Jimenez case. According to a January 8, 2013 Austin Chronicle report, the hearing featured “a phalanx of top experts” who testified that the Gutierrez child’s choking death “was more likely a tragic accident” than a felony murder. These experts were contrasted by the sole expert who testified for Jimenez at trial and who had a “meltdown on the stand” and who “cursed at prosecutors in the hallway”—behavior used to “discredit him on the stand.” Based on the convincing and compelling testimony given by the experts at the hearing, Judge Baird recommended to the Court of Criminal Appeals that Jimenez was entitled to a new trial. That court, however, rejected Judge Baird’s conclusion, ruling last April that there is no “clear and convincing” evidence to support Jimenez’s claim of innocence.


Jimenez’s attorneys sought certiorari review before the U.S. Supreme Court last summer. And leading legal scholars, like University of Texas law professor Jordan Steiker, saw Jimenez’s case as an excellent opportunity for the Supreme Court to not only recognize but determine what legal standard should be applied in deciding “free-standing” claims of actual innocence. The host of legal scholars and Mexican government notwithstanding, the court once again refused to do so.

But as we pointed out last fall, the Court still has the Floyd Perkins case pending before it in which it could resolve this recurring constitutional dilemma. We’re not optimistic that it will, but at least the opportunity is there—and the Perkins case would be a good one in which to decide the issue.


There is something fundamentally offensive about an innocent state prisoner not being able to present a “free standing” claim of actual innocence. It truly boggles the mind. What is even more offensive is that some prosecutors have argued that a state should have the right to execute an innocent prisoner so long as it can show the prisoner had a procedurally correct trial. How can a trial possibly be considered “fair” or “correct” when there is compelling evidence of innocence?

It has often been said that the law is not perfect. We agree. But there is no excuse for the law being stupid—and by any rational definition, it is stupid to have a federal law that does not recognize “free standing” claims of actual innocence.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal law by the Texas Board of Legal Specialization

The court’s fact chronology in Jimenez can be found here   Jimenez v. State