Alexis Avila in court (KQRE screenshot) and on surveillance footage tossing her newborn son in a dumpster (KOAT)
A 19-year-old woman in New Mexico who was convicted of intentional child abuse resulting in great bodily harm for trying to kill her newborn son by stuffing the child in a trash bag and tossing him in a dumpster last year will be getting out of prison as she awaits the result of her appeal.
New Mexico Court of Appeals Judges Jane B. Yohalem and Kristina Bogardus on Wednesday issued an order granting Alexis Avila’s “motion for release pending appeal,” which will allow her to be released from incarceration under the same conditions she was under prior to her conviction, court records reviewed by Law&Crime show.
Avila was also convicted of attempted first-degree murder but those charges were merged into the child abuse conviction. She was sentenced to 18 years in prison with two years suspended and credited with 475 days for the time she spent on house arrest.
The appeals court reversed a district court ruling issued less than a month ago in which Lovington District Court Judge Efren A. Cortez rejected Avila’s request to be released while her case played out in the higher courts, Albuquerque, New Mexico, NBC affiliate KOB reported. Cortez denied Avila’s motion on Sept. 27, records show.
The appeal was based on six issues, including whether the evidence presented to the trial court was sufficient to find that the offense and subsequent harm could be designated as a “serious violent offense” and whether there was sufficient evidence for a jury to find Avila guilty of child abuse resulting in great bodily harm. Other issues on appeal include the trial court’s jury instructions, expert witnesses, and venue.
According to a copy of the ruling obtained by Albuquerque CBS and Fox affiliate KRQE, the appeals court reasoned that Avila is not a flight risk and can safely be released to house arrest, which she was on for more than a year after posting bond following her initial arrest.
The appellate judges also said that, based on state law, they are optimistic about Avila’s chances of being successful in her appeal, KRQE reported. The decision reportedly states that her appeal “raises a substantial question of law likely to result in a reversal or an order for a new trial.”
The state supreme court has not announced a date to hear Avila’s appeal.
As previously reported by Law&Crime, officers with the Hobbs Police Department and Emergency Medical Services personnel on Jan. 7, 2022, responded to a 911 call about a baby being found in a dumpster in the 1400 block of North Thorp behind a Rig Outfitters and Home Store near the state’s eastern border with Texas.
Upon arriving at the scene at about 8 p.m., first responders found two males standing near the dumpster and a female sitting inside a vehicle holding the baby, Hobbs’ interim Police Chief August Fons said during a news conference after the discovery.
Authorities said the baby was wrapped in a bath towel that was dirty and wet and had dried blood on him, and the umbilical cord was still attached. EMS rendered aid before rushing the child to a local hospital for treatment. Shortly after arriving at the facility, the newborn was flown to Lubbock Hospital in Texas for more specialized pediatric treatment.
The three people who found the baby told investigators they were looking for “anything of value” that may have been thrown away when they heard crying from a black garbage bag. Thinking it was a dog or a cat, they removed the bag only to discover the newborn. The female then took the baby into the car and held him to keep him warm while one of the men called for help.
Investigators then obtained surveillance camera footage from the owner of Rig Outfitters, which showed a white four-door Volkswagen Jetta pulling into the nearly empty parking lot and stopping in front of a line of three large green dumpsters at approximately 2 p.m.
A woman exits the driver’s side door and opens the back passenger door. She then grabs a black bag from the backseat and throws it into the open dumpster farthest to the right before getting back in the vehicle and driving off. The incident took less than 30 seconds, but based on the footage, Fons said the baby was in the dumpster for approximately six hours.
The Lea County District Attorney’s Office did not immediately respond to a message from Law&Crime regarding the appeals court’s ruling.
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