Ken Paxton

Friday, April 5, 2013

Media Advisory: Rigoberto Avila, Jr. scheduled for execution

AUSTIN Pursuant to a court order by 41st District Court of El Paso County, Rigoberto Avila, Jr., is scheduled for execution after 6 p.m. on April 10, 2013.

On May 7, 2001, Avila was sentenced to die for the stomping-death of nineteenth month old Nicholas Macias.


At trial, the evidence established that sometime between 6:00 and 6:15 p.m., on February 29, 2000, Marcelina Macias left her home to attend a class, leaving her 19-month-old son, Nicholas Macias, and his four-year-old brother, Dylan Salinas, in Avila’s care. At 7:02 p.m., Avila called 911 and told the operator that the infant boy he was babysitting had stopped breathing. When the paramedics arrived, they administered emergency treatment to the child before transporting him to the hospital. While treating the boy, paramedics found a bruise on Nicholas’s abdomen in the shape of a foot print. When they asked Avila about the bruise, he denied any knowledge of the marking. At the hospital, surgical at-tempts to save Nicholas’s life by repairing the injury to Nicholas’s intestines and other abdominal injuries were un-successful, and Nicholas died.

An autopsy revealed that major organs in Nicholas’s body had been split in two by considerable blunt-force trauma consistent with being stomped by an adult. Specifically, the medical examiner reported that Nicholas died of internal bleeding due to massive abdominal trauma resulting from blunt for[ce] injury. The surgeon’s testimony likened Nicholas’s injuries to those caused by such events as exiting an automobile traveling at sixty miles per hour or being dropped twenty feet.

Officer Jose Lopez testified that on February 29, 2000, he was dispatched to the home of a child who had stopped breathing. Avila told Lopez that he had been watching the television when Dylan came into the room and told him that Nicholas was not breathing. Dylan told Avila that he had held [Nicholas’s] mouth and then Nicholas stopped breathing. Lopez then allowed Avila to drive to the hospital.

Detective Tony Tabullo arrived at the hospital to assess the situation. Because Avila was the last adult known to be with Nicholas, Tabullo asked him if he would be willing to discuss the incident with him at the Crimes Against Persons offices. Avila initially gave a statement in which he denied injuring Nicholas. Subsequently, Tabullo received from other detectives Polaroid photographs which appeared to show an adult-sized footprint on Nicholas's stomach. Tabullo confronted Avila with the photographs, after which Avila orally admitted to stomping Nicholas. Tabullo typed the confession, which Avila signed. The confession was admitted at trial. During the guilt-innocence phase of trial, Avila testified that he did not injure Nicholas.


[Nicholas’s] five-year-old brother Dylan Salinas testified, on the evening of [Nicholas’s] injury, [Avila] directed Dylan to step on [Nicholas] before [Avila] did so and denied ever saying he had put his hand over [Nicholas’s] mouth.

The jury heard the audiotape recording of [Avila’s] 911 call on the evening of [Nicholas’s] murder, which had been received at 7:02 p.m.

A family friend testified (1) since [Nicholas’s] death, his siblings had exhibited sleeplessness, fear, crying spells, and clinging to their mother and (2) when she was informed of [Nicholas’s] death, Marcelina Macias wept and fainted.

[Nicholas’s] mother testified (1) when she left their home on the evening of Nicholas’s murder, [Nicholas] and Dylan were chasing each other around the apartment as she kissed them goodbye, (2) [Avila] paged her around 6:50 p.m. that evening, (3) when she arrived back at her home, she observed EMS personnel working on [Nicholas] and she became hysterical, (4) when Dylan and [Avila] arrived at the hospital, Dylan was scared and clingy toward her, (5) prior to the evening in question, [Avila] had never struck or even disciplined any of her children, (6) she had been dating [Avila] for about four months before [Nicholas’s] death, (7) [Avila] first began babysitting her children at the beginning of February, 2000, about a month before [Nicholas’s] death, (8) she never saw [Avila] get angry with her children, but (9) she was aware [Avila] was jealous of her seeing other men.

The defense presented a number of friends and relatives who all described [Avila] as a kind, caring, soft-spoken, non-violent person and a loving, supportive, father to his own son.


March 16, 2000 An El Paso County grand jury indicts Avila for the capital murder of an individual younger than six.

May 3, 2001 After a trial in the 41st District Court of El Paso County, the jurors find Avila guilty of capital murder.

May 7, 2001 After a punishment hearing, the court sentences Avila to death.

May 19, 2003 Avila applies for state habeas corpus relief.

July 2, 2003 The Court of Criminal Appeals affirms the conviction and the sentence. Avila v. State, No. 74,142, 2003 Tex. Crim. App. LEXIS 142.

Sept. 10, 2003 In connection with Avila=s appeal, the Court of Criminal Appeals denies rehearing. In re Avila, No. 74,142, 2003 Tex. Crim. App. LEXIS 321.

March 22, 2004 On appeal from the Court of Criminal Appeals, the U.S. Supreme Court denies certiorari review. Avila v. Texas, 541 U.S. 935.

Sept. 29, 2004 The Court of Criminal Appeals denies habeas corpus relief. Ex parte Avila, No. 59,662-01.

Sept. 19, 2005 Avila seeks federal habeas corpus relief.

July 13, 2007 The federal district court grants Avila a new punishment hearing, denies a new trial on guilt-innocence, and allows him to appeal certain issues. Avila v. Thaler, 499 F. Supp. 2d 713 (W.D. Tex.).

Feb. 17, 2009 The Fifth Circuit panel reverses the district court’s grant of a new punishment hearing and affirms its denial of a new guilt-innocence trial. Avila v. Thaler, 560 F.3d 299.

Nov. 2, 2009 The U.S. Supreme Court denies certiorari review of the 5th Circuit decision. Avila v. Thaler, 558 U.S. 993.


For additional information and statistics, please go to the Texas Department of Criminal Justice website,