Editor’s Note: Baby Saul, as he is known by people in the community, is happy and healthy today living with his father. He celebrated his first birthday in January. His story prompted NM Senator David Gallegos to re-introduce legislation to get baby boxes in all 33 counties in the state, in hopes of giving mothers a safe option to surrender their babies. One such box has already been installed in Hobbs since Saul’s birth.

LEA COUNTY, New Mexico (KMID/KPEJ)- Attorneys for Alexis Avila, a Hobbs mom convicted of tossing her newborn baby in a dumpster in 2022, have filed an appeal seeking to overturn her conviction. 

Avila, then 18, was arrested after she was caught on camera throwing her newborn son away in a dumpster on January 7, 2022. Officers with the Hobbs Police Department were called to an alley way in the Broadmoor Shopping Center after three people who had been digging through a dumpster found the hours old boy in a trash bag, alive, and with his umbilical cord still attached but crudely cut.

Avila admitted she’d given birth at home and tossed her son because she was worried that she was too young to care for a child. During a trial earlier this year, medical staff testified that the newborn suffered from hypothermia, severe anemia, and kidney problem, among other issues after being abandoned and left in 40-degree temperatures for more than six hours.

On April 14, Avila was found guilty on one count of Abuse of a Child Resulting in Great Bodily Harm as well as the alternative charge of Attempt to Commit a Felony: First Degree Murder. On May 1, 2023, both charges merged into solely the Abuse of a Child Resulting in Great Bodily Harm and Avila was sentenced to 18 years in prison with two years unconditionally suspended; she was also given credit for 475 days of presentence confinement.  She was also ordered to complete mental health services, school, and take parenting classes while in prison.

At sentencing, Judge William Shoobridge said, “It’s a miracle that your child survived…you had time to think about and correct what you did, but you did not.”  

He said this would have been a murder case were it not for the three people who found the baby and saved his life. “He could be in the landfill, dead,” he added.

On July 27, Avila’s defense team filed a motion with the court of criminal appeals and cited several reasons for overturning the case:

Issue 1: whether the trial court abused its discretion in denying Avila’s request for a change of venue. 

The defense argued that media coverage of the case created a jury pool of people who had already pre-judged the defendant. At the time, the defense team argued that the trial should be moved to Lincoln County, where there was little to no media coverage of the case. However, in denying that motion, Shoobridge said that no news story cited in the motion was “factually inaccurate, emotional or opinionated” and that the coverage did not go “beyond recitation of established facts”. 

Issue 2: whether the trial court erred in allowing witnesses to testify as experts who were not previously designated as such on a witness list in order to put defense on sufficient notice. 

Defense attorneys said that expert medical witnesses, those involved in the care of the infant after he was admitted to the hospital, were not designated as experts prior to the trial.

Issue 3: whether the trial court erred in denying Avila’s motion for directed verdict based on the sufficiency of the evidence for the charge of Child Abuse Resulting in Great Bodily Harm. 

Issue 4: whether there was sufficient evidence presented for the jury to find Avila guilty of Child Abuse Resulting in Great Bodily Harm.

Issue 5: whether the trial court had sufficient evidence to make a finding that the nature of the offense and the resulting harm allowed it to be designated as a serious violent offense.

That charge is defined as an injury with a high probability of death; defense attorneys argued that the expert medical witnesses said the boy was not injured and began recovering once his body temperature began to stabilize.

Issue 6: whether the trial court erred in denying Avila request that the court give the jury Uniform Jury Instructions prior to deliberating.

It is now up to the appellate court to decide if it will take up the case or not. We will continue to follow this story as it develops.