In 2018, an El Paso judge ruled that death row inmate Rigoberto Avila Jr. should get a new trial because new scientific evidence could have led a jury to acquit him. On Wednesday — almost a year and a half later — the Texas Court of Criminal Appeals rejected the judge’s recommendation and upheld Avila’s conviction.
Avila’s was the first Texas death penalty case that received a judicial recommendation for a new trial under a 2013 state “junk science” law, the first of its kind in the nation. The legislation allowed reconsideration of convictions that were based on false or outdated science. It followed wrongful convictions based on questionable science, like bite mark evidence or shaken baby syndrome diagnoses. Since the law passed, a murder conviction has been tossed and several death penalty cases have been sent back to courts for further review.
Now 47, Avila was sentenced to death in May 2001 for the death of his girlfriend’s 19-month-old son, Nicolas Macias. He was watching Nicolas and his girlfriend’s other son, age 4, in February 2000 when he called 911 to say the toddler was not breathing.
According to court records, medical officials' testimony bolstered El Paso County prosecutors' assertions at trial that Avila stomped on Nicolas' stomach, leading to the boy's fatal blunt-force injuries. Avila’s lawyers argued the injuries could have been caused by the older child, but the state and doctors dismissed the idea, saying only Avila could have killed Nicolas.
“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,” prosecutors said during closing arguments. “... There's no other way the kid could have died.”
In 2013, Avila’s lawyers brought to the courts new developments in impact biomechanics, the study of how the human body responds to forceful impact. The Texas Court of Criminal Appeals sent the case to El Paso for review based on the new junk science law. Under the law, the courts can toss a conviction if they decide that newly available scientific evidence would likely have led to a non-conviction if it had been presented at trial.
After a multiday hearing with new expert testimony, Judge Annabell Perez said in her 2018 ruling that scientific evidence now suggests the older child may have been able to inflict the fatal blow from jumping off the bed.
“Had the new scientific evidence that [the 4-year-old] could have physically been capable of causing [Nicolas’] fatal injuries been admitted at trial, it is more likely than not that the jury would have harbored reasonable doubt about Mr. Avila’s guilt, resulting in his acquittal,” Perez wrote.
In an unsigned order Wednesday, Texas’ high criminal court disagreed, upholding Avila’s capital murder conviction.
In his first statement to police, Avila said he was in the other room when the older child came in and told Avila he and Nicolas were wrestling, and he had put his hand over Nicolas’ mouth when he stopped breathing, according to court documents. But in a second statement, Avila told police he stomped on the toddler.
In denying Avila a new trial, the Court of Criminal Appeals pointed to the confession, which Avila later denied, as well as the unchanged opinions of Nicolas’ emergency surgeon and the original medical examiner. Both said at the latest hearing that they did not believe Nicolas’ injuries were accidental.
Avila’s lawyers said Wednesday they were “deeply dismayed” by the “shocking” refusal of a new trial. In a statement, Cathryn Crawford and Rob Owen said the ruling is a setback for the new law and goes against the intention set by lawmakers.
“It should deeply trouble every Texan that, at least for the time being, Mr. Avila remains under a death sentence even though extensive and powerful scientific evidence raises grave doubts about his guilt,” they said. “The quality of [the court’s] opinion fails to respect either Judge Perez’s work in reviewing this case or the Legislature’s efforts to limit the destructive impact of ‘junk science’ in criminal cases.”