Rigoberto Avila Jr. has been on death row since 2001 for a crime he maintains he did not commit: the murder of his girlfriend’s 19-month-old son. Last month, District Attorney Jaime Esparza asked the 41st District Court of El Paso County to set an execution date of Sept. 2 for Avila.
Just weeks earlier, it seemed Avila was on the precipice of exoneration. In 2018, after years of litigation and extensive media coverage detailing his case for innocence, 41st District Court Judge Annabell Perez recommended a new trial based on Texas’s so-called junk science statute, which took effect in 2013. The law allows people to challenge their convictions based on newly available scientific evidence that contradicts expert testimony proffered at trial. False or misleading forensic science has contributed to more than 160 known wrongful convictions in Texas, according to the National Registry of Exonerations.
But before Avila could receive a new trial, his case had to go to the Texas Court of Criminal Appeals. On March 11, the appellate court denied Avila a new trial in an opinion that primarily reiterated the State’s trial evidence.
And now, the El Paso DA is asking the same judge who ruled Avila should receive a new trial to set his execution date. “The court of criminal appeals has again affirmed Avila’s conviction and sentence of death,” Esparza said in a statement emailed to The Appeal.
Rob Owen, one of Avila’s attorneys, told The Appeal they will continue to pursue litigation to prove Avila’s innocence. The El Paso DA, he explained, has “wide-ranging authority” to determine how they proceed in Avila’s case. The DA can join a motion, with Avila, to the appellate court, requesting a reconsideration of their decision, and can support Perez’s recommendation for a new trial. At minimum, Owen said, the DA should wait for Avila’s appeals to be exhausted before pursuing an execution date.
“The state should look more carefully at the evidence that has been developed to date and take seriously the very grave risk that this is a wrongful conviction,” said Owen.
More than 350 people have been exonerated in Texas, according to the National Registry of Exonerations. Eleven were sentenced to death.
“It’s much, much easier in our system to convict a completely innocent person than it is to exonerate a completely innocent person,” said Mike Ware, executive director of the Innocence Project of Texas.
In 2001, at his trial, Avila told the court he was babysitting his girlfriend’s children, Nicholas and his 4-year-old brother, when the older child came into the living room and said his brother had stopped breathing, according to Avila’s writ of habeas corpus. Avila called 911. No one else was in the home.
“They were playing, and when they were playing her 4-year-old came out and said ‘what’s wrong with Nicky?’” Avila said to the 911 operator. “I said ‘what do you mean?’ and he said ‘well I was playing with him and he’s not breathing no more.’”
The state’s medical experts—the medical examiner who performed Nicholas’s autopsy and the surgeon who treated him—testified that it was nearly impossible for the 4-year-old to have accidentally inflicted the injuries.
The prosecution also presented testimony from the older child, age 5 at the time of trial, who said Avila had stepped on Nicholas. But on the night that Nicholas was injured, he told police in a videotaped interview that he had been wrestling with his brother and he put his hand over Nicholas’s mouth, according to Avila’s writ.
Five days later, he allegedly implicated Avila in an interview with police that was not video or audio taped, according to the writ. At the sentencing hearing after Avila’s conviction, the child testified that Avila told him to step on Nicholas.
Avila had confessed to police, prosecutors told the jury. However, in his first statement to police he maintained his innocence. He told them—as he had said on the 911 call, to paramedics, and to hospital staff—that the older child came in and said Nicholas was not breathing, according to the writ. In the second statement, Avila said he stomped on the toddler, but he testified that he made no such admission and had repeatedly asserted his innocence. In Texas, 14 people have been exonerated who allegedly confessed, according to the National Registry of Exonerations.
Relying on the medical experts’ testimony, prosecutors argued that only Avila could have injured Nicholas.
“All the doctors say a little 4-year-old with his weight is incapable of doing it unless he’s jumping off a 20 foot height onto the stomach of the child. So we know [Nicholas’s older brother] can’t do it. That leaves him,” the prosecutor told the jury. “There’s no other way the kid could have died.”
But Avila’s attorneys say this is simply not true. Biomechanical science is now commonly used to ascertain how much force is necessary to cause an injury, but this type of analysis was rarely used at the time of Avila’s trial, his attorneys explained in court filings and at a 2017 hearing before Judge Perez. They presented testimony from forensic pathologists and a biomechanical engineer who found that the older child, who frequently wrestled with his siblings, could have caused the injuries by jumping onto the toddler from a bed.
“The evidence at the March 2017 writ hearing established that the central premise of the State’s case—that Mr. Avila was the only person who could have caused [Nicholas’s] injuries—could scientifically be refuted with present-day biomechanical science,” Perez wrote in her opinion, recommending a new trial.
If this evidence had been available in 2001, she continued, “it is more likely than not that the jury would have harbored reasonable doubt about Mr. Avila’s guilt, resulting in his acquittal.”
Perez’s recommendation marked a milestone for the junk science statute—Avila was the first person on death row to receive such a recommendation based on the law. But the effect of the law, Avila’s attorney Owen told The Appeal, is “significantly curtailed” by the appellate court’s ruling.
“I think that’s a big setback for this new legislation,” Owen said. “Its promise is not going to be fulfilled if courts don’t assume the responsibility to take a close look at a case like this one.”
The Court of Criminal Appeals has “very much leaned to the very conservative side which, in short, is code for ‘very much leans in favor of the state,’” according to Ware of the Innocence Project of Texas.
Last year, the U.S. Supreme Court overruled the appeals court’s ruling in the case of Bobby Moore, another controversial death penalty case. Moore has an IQ of about 70. The Supreme Court banned executing people with intellectual disabilities in 2002, but the Texas Court of Criminal Appeals twice ruled that his sentence could stand.
On both occasions, the Court intervened and directed the lower court to follow its rulings. The local DA, Kim Ogg of Harris County, also opposed Moore’s execution.
The first time the Supreme Court took up Moore’s case, it ruled, in 2017, that the Court of Criminal Appeals was using “wholly nonclinical” factors to determine intellectual disability in capital cases and sent the case back to the lower court. But, again, the appellate court determined that Moore’s execution could proceed because he was not intellectually disabled. His case then went back to the Supreme Court, which ruled last February that Moore is intellectually disabled, which makes him ineligible for execution.
“We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion,” reads the majority opinion. The lower court’s ruling, the justices wrote, includes “sentences here and there suggesting reliance upon what we earlier called ‘lay stereotypes of the intellectually disabled.’”
Last November, the Court of Criminal Appeals sentenced Moore to life in prison.
“There’s a disturbing and discouraging pattern there of not aggressively enforcing defendants’ rights,” Owen said of the Texas court. “I hope that the court will do better in the future, but unfortunately Mr. Avila’s case is not a hopeful indication in that regard.”