EX PARTE HORVATH v. << (2025)

ORDER

Applicant was convicted of capital murder and sentenced to life imprisonment. The Tenth Court of Appeals affirmed his conviction. Horvath v. State, 10-07-163-CR, 2009 WL 471313 (Tex. App.—Waco Feb. 25, 2009). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that new scientific research exists since his trial, and if that research would have been known or presented during his trial, it is more likely than not that he would not have been convicted. Based on the record, the State and trial court agree that Applicant should be granted a new trial.

We disagree. In order to obtain relief under Texas Code of Criminal Procedure art. 11.073, an applicant must show that new scientific evidence is available which contradicts scientific evidence presented at trial and had such new evidence been presented at trial, on the preponderance of the evidence, the applicant would not have been convicted.

Based on this Court's independent review of the entire record, we deny relief.

I agree with the Court that Applicant is not entitled to relief, and I join the Court's order. In this case, Applicant admitted to shaking his baby and causing the baby's death—he fails to show by a preponderance of the evidence that he would not have been convicted. But I write separately to address the notion that science has changed regarding “shaken baby” cases. To the extent that Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024), has been read to suggest that Shaken Baby Syndrome (SBS) is junk science or that shaking alone cannot cause a serious brain injury to a child, that reading should be disavowed.

I. Background

On June 27, 2006, Applicant dialed 9-1-1 to report that his baby son had gone limp and was having trouble breathing. By the time paramedics arrived, the child was pale blue and motionless. Paramedics rushed the child to the hospital, but all resuscitation efforts failed, and the child died.

At the hospital, several employees interacted with Applicant. They, along with the paramedics who transported the child, described Applicant's demeanor as emotionless and unusual. The treating physician said that the emotionless behavior and lack of grief, coupled with swelling around the child's right eye, caused him to suspect abuse. And later, when Applicant was interviewed by a detective about the child's death, he gave several versions of the events. Ultimately, he admitted that he shook his son and caused his son's death.¹ He acknowledged that he knew shaking a baby was dangerous and capable of causing death—but that he did it anyway.

At trial, Applicant testified that, a few days before his baby boy's death, he accidentally caused a changing table to collapse. When that happened, Applicant claimed, his son went sliding through the end of the table and his head struck a filing cabinet. An expert for the State purchased a replica of the changing table, however, and could not duplicate Applicant's version of how the table broke. So, the State theorized that Applicant broke the table himself by hitting it out of frustration. Indeed, Applicant had admitted frustration with the baby's nighttime crying to the point that he would punch pillows or go outside to smoke a cigarette. He also complained that the baby was “bankrupting” him.

After Applicant was found guilty of capital murder and sentenced to life imprisonment for killing his baby boy, his conviction was upheld on appeal. Horvath v. State, No. 10-07-00163-CR, 2009 WL 471313, at *1 (Tex. App.—Waco Feb. 25, 2009) (mem. op., not designated for publication). He now seeks habeas relief, alleging that “[n]ew scientific evidence is available that requires a new trial[.]” The convicting court has entered Findings of Fact and Conclusions of Law, recommending that relief be granted on the basis of this Court's opinion in Ex parte Roark, and it found that new science “contradicts any claim that [Applicant] could have caused the death of the baby by shaking him.” The State agrees.²

II. Ex Parte Roark

In Ex parte Roark, a majority of this Court granted an applicant habeas relief under Article 11.073 of the Texas Code of Criminal Procedure. 707 S.W.3d at 188. The majority decided that, “if the newly evolved scientific evidence were presented at Applicant's trial, it is more likely than not he would not have been convicted.” Id. at 187. Specifically, it suggested that “there would be a marked shift in the testimony ․ concerning the effect of a short-distance fall to a child, the effect of shaking a child, rebleeds in subdural hematomas, lucid intervals, retinal hemorrhaging, and SBS in general as applied to B.D.’s injuries.” Id. at 185.

At trial, the State presented evidence that Roark's shaking of the baby girl victim in that case was the only possible explanation for her injury. Id. at 160–67. Indeed, the State suggested that a short-distance fall could not have caused her injury and that shaking alone would have been sufficient to cause the injuries that occurred. Id. The State's theory was that the baby was perfectly fine on the morning of the injury, so Roark must have shaken/abused the baby during the afternoon because Roark was the only person in contact with the baby between the morning visit and the eventual injury.

Quite different than in the case before us today, the applicant in Roark never admitted to shaking the baby. The State's case was circumstantial. So, given new scientific evidence suggesting that a prior short-distance fall could have caused the injury, this Court concluded that “the jury [would now be] left with criminal and non-criminal alternatives that [were] all consistent with the evidence.” Id. at 187–88 (internal pagination omitted). And, on that basis, the Court granted relief. Id. at 188.

A. Shaking Alone Can Cause Injury

Throughout the Court's opinion in Roark, the majority seemed to suggest that shaking alone might be insufficient to cause serious injury or death to a child. Id. at 185–88. It suggested that, “as early as 2004, the Journal of Neurosurgery published an article stating [that] the terminology of ‘shaking’ should be avoided.” Id. at 185. It cited a 2015 study suggesting that shaking alone, without an associated impact, could not create a subdural hematoma. Id. It mentioned research related to mechanical dolls and animal abuse that “has yet to bridge the gap between theory and reproduceable results which the scientific method demands.” Id. “Essentially,” the majority wrote, “science has evolved to a degree that has removed ‘Shaken’ from ‘Shaken Baby Syndrome.’ ” Id. Why? Because, the Court concluded, there was a “need to vague the terms to ‘Impact Syndrome’ and then to ‘Abusive Head Trauma’ [(AHT)].” Id.

But arguably credible and reliable scientific evidence still exists to suggest that shaking a child can cause serious injury or death.³ The majority in Roark suggested that a shift away from the use of the term “shaking” began in 2004. Id. at 185. But even if there is any truth at all to that claim, the shift is still nowhere near constituting a scientific consensus.

Indeed, in 2016, a study published in the Journal of Pediatrics showed that “shaking with or without impact (in contradistinction to several other alternative theories) is [still] generally accepted to be a dangerous form of child physical abuse and capable of producing [subdural hematoma], [retinal hemorrhages], and coma or death.” Sandeep K. Narang et al., Acceptance of Shaken Baby Syndrome and Abusive Head Trauma as Medical Diagnoses, 177 J. Pediatrics 273, 277 (2016), https://www.jpeds.com/action/showPdf?pii=S0022-3476% 2816% 2930402-4. There, an observational study surveyed 628 multidisciplinary physicians from the ten leading children's hospitals within the specialty departments most involved in suspected AHT cases, as well as from coroners’ offices and medical examiners’ offices. Of those 628, 607 characterized SBS or AHT as a valid diagnosis. The results “demonstrate[d] that physicians, irrespective of specialty, viewed the risks of shaking, with or without impact, to be similar to a high-velocity [motor vehicle collision] and dissimilar to a very short fall.” Id. And this study was published after the 2015 study that the Roark majority cited for the proposition that “shaking alone, without an associated impact, could not create a subdural hematoma.”

Moreover, the biomechanical evidence that the Court discussed in Roark, which had relied on research related to mechanical dolls and animal abuse to assert that shaking alone cannot cause death, is insufficient to show a scientific consensus. As recently as 2020, the American Academy of Pediatrics (AAP) issued a “Policy Statement,” stating that “[a]ll biomechanical models, whether physical or computer generated, have limitations and fall short of a precise representation of the complex pathophysiology of the human infant.”⁴ Sandeep K. Narang et. al., Abusive Head Trauma in Infants and Children, 145 Pediatrics 1, 4 (2020) (Policy Statement of the Am. Acad. of Pediatrics), https://publications.aap.org/pediatrics/article/145/4/e20200203/36936/Abusive-Head-Trauma-in-Infants-and-Children. And as recently as March of 2025, the AAP issued a “Technical Report,” stating: “Findings from biomechanical studies investigating shaking are mixed as to whether shaking alone can cause severe brain injury or fatality in infants.” Sandeep K. Narang et al., Abusive Head Trauma in Infants and Children: Technical Report, 155 Pediatrics 1, 20 (2025) (Technical Report of the Am. Acad. of Pediatrics) (emphasis added), https://publications.aap.org/pediatrics/article/155/3/e2024070457/201049/Abusive-Head-Trauma-in-Infants-and-Children. So, while biomechanical studies may not have “bridge[d] the gap between theory and reproduceable results[,]” Roark, 707 S.W.3d at 185, they certainly have not established a consensus that shaking a child cannot cause serious injury or death.

Perhaps the most flawed argument suggested by the Roark majority, though, was the notion that the change from the term SBS to AHT served as proof that the use of the term “shaking” was no longer scientifically sound. Roark, 707 S.W.3d at 185. At an evidentiary hearing in Michigan, Dr. Cindy Christian—the immediate past chair of the American Academy of Pediatrics Child Abuse and Neglect Committee—explained that the Academy advocated for that change in order to fully capture all forms of abuse, not to remove “shaken” from “Shaken Baby Syndrome[,]” as the Roark majority suggested. People v. Lemons, 514 Mich. 485, 553, ––– N.W.3d ––––, –––– (2024) (Zahra, J., dissenting). As Justice Zahra of the Supreme Court of Michigan aptly noted: “Plainly, this [change] did not mean that violently shaking a baby is not a serious health risk that can potentially cause death and severe injury in small children.” Id. All of this credibly suggests that babies, though often quite resilient, can be abused, and injured, and even killed, in a multitude of ways—including by shaking—and the change from SBS to AHT actually reflects just that.

I conclude that it is far from clear that the scientific evidence relating to SBS or AHT has changed to reflect a consensus that shaking alone cannot cause serious injury or death to a child. To the extent that Ex parte Roark might have suggested as much, I conclude that it erred.⁵ Credible and reliable scientific evidence suggests that shaking a child can indeed cause either serious bodily injury or death.

B. Short-Distance Falls and Other New Science

To be sure, other new science—like evidence suggesting that a short-distance fall could cause a subdural hematoma—was presented in Ex parte Roark. There was even a recantation from one of the State's experts with respect to the unlikelihood of a rebleed from a former injury. Although reputable scientific evidence may suggest the potential for dissimilarities between the results of shaking compared to short falls, some new evidence may also suggest that a short-distance fall might cause an injury and that such an injury may even be followed by a lucid interval.

In Roark, this new science was particularly probative. In fact, it convinced the Court in that case to grant relief. There, again, however, the applicant in that case never admitted to shaking the injured baby girl. As a result, the State's case was circumstantial. So, new science suggesting that a short-distance fall could have caused the injury in that case was at least arguably relevant. All of this is to say that, while I am unconvinced by the suggestion that shaking alone cannot cause serious injury or death to a child, I still remain open to considering scientific evidence that may suggest that short-distance falls can cause serious injury to a child as well.

III. Applicant Is Not Entitled To Relief

An applicant may be entitled to relief pursuant to Article 11.073 of the Texas Code of Criminal Procedure if certain requirements are satisfied. Tex. Code Crim. Proc. art. 11.073. Specifically, there must be a showing that: (1) “relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial;” (2) “the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application;” and (3) “had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.” Tex. Code Crim. Proc. art. 11.073(b)(1)–(2). Here, Applicant relies on Ex parte Roark to suggest that relief is appropriate under 11.073. But Ex parte Roark is distinguishable from Applicant's case.

First, it is far from clear that any scientific evidence suggesting that shaking alone is insufficient to cause death or serious bodily injury is new. Applicant's trial occurred in 2007. But in Ex parte Roark, the majority stated that, “as early as 2004, the Journal of Neurosurgery published an article stating the terminology of ‘shaking’ should be avoided.” 707 S.W.3d at 185. How, then, was this supposedly relevant and reliable science “not ascertainable through the exercise of reasonable diligence” at the time of Applicant's 2007 trial, as required by 11.073(b)(1)(A)? Perhaps the argument would be that a scientific consensus has emerged since 2007, but as discussed above, it also seems far from clear that such a scientific consensus has ever existed.

Moreover, there are important factual distinctions between Roark and Applicant's case. At Applicant's trial, evidence showed that Applicant demonstrated unusual and emotionless behavior at the hospital, including a lack of grief. When later questioned, he also gave differing versions of the events leading up to the baby's death. And ultimately, he admitted to shaking his baby boy and causing his baby boy's death.

So, unlike Roark, where the State's case was entirely circumstantial, the jury here heard substantial evidence that Applicant shook his baby boy. In this case, the jury would not have been left to simply infer that shaking occurred. Applicant admitted to it. The jury heard Applicant admit to engaging in conduct capable of causing the death of the baby. And Applicant offers no compelling reason for a jury to have rejected his own admission made at trial under oath. As a result, Applicant fails to establish in this case that “on the preponderance of the evidence he would not have been convicted.” Tex. Code Crim. Proc. art. 11.073(b)(2).

The other claimed-to-be new evidence, suggesting that a short-distance fall could have caused the death, also does not show by a preponderance of the evidence that the jury would not have convicted Applicant. Applicant's theory is that the baby fell from a changing table and hit his head, resulting in a head injury that ultimately caused the baby's death. To be sure, as explained above, there does seem to be some scientific evidence suggesting that a short-distance fall can be followed by a lucid interval and an eventual rebleed that causes death. But does that possibility make it more likely than not that Applicant would not have been convicted? Not in my view.

Applicant's jury already heard his claim about the changing table accident. And they also heard testimony suggesting that Applicant's story about the changing table incident did not add up. That competing testimony, coupled with Applicant's varying stories about the immediate events leading up to the baby's death, leaves plenty of room for the jury to still find Applicant's alternative theory unconvincing—even with the new scientific evidence.

IV. Conclusion

Considering all of the evidence—both that presented at trial and new—Applicant fails to carry his burden to show by a preponderance of the evidence that a jury would not have convicted him. Applicant admitted that he shook his child and caused the child's death, and credible and reliable scientific evidence still suggests that shaking a child can cause the child to suffer serious injury or death. To the extent that Ex parte Roark suggested otherwise, it erred.

With these supplemental thoughts, I join the Court's order.

DISSENTING OPINION

As the majority notes, “[b]ased on the record, the State and trial court agree that Applicant should be granted a new trial.” Maj. Op. 1. I agree. First, “we will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). My own independent review of the record confirms that the trial court's findings are supported. Second, the State agrees that Applicant is entitled to relief. Under these circumstances, I would grant Applicant relief in form of a new trial. Because the majority chooses to go its own way and chooses to deny relief, I respectfully dissent.

I. Trial Record

The record reflects that during trial, Applicant admitted to shaking the baby, but Applicant's intent was to save his child.

A. He wasn't breathing normally. It wasn't that he had stopped breathing, but he was more like gasping for air.

Q. Okay. Had he ever done that before?

A. No

Q. All right. So what did you do?

A. I picked him up and placed him in my arms, rocked him back and forth at first. And then, as he steadily progressed to get worse, I panicked. I shook him. Placed him down on the bed and shook him. I called his name out. Picked up my phone and dialed 9-1-1.

Q. So you shook him?

A. Yes, I did.

Q. Had you ever done that before?

A. No.

Q. Why did you -- I mean, how did you shake him?

A. Picked him up in my arms and proceeded to shake him, forwards and backwards and side to side.

Q. Did you not know you're not supposed to do that?

A. I guess in the back of my mind, yes, but at the moment, no.

Q. What caused you not to know it at that time?

A. I was scared. I was panicking. Something was wrong and I didn't know what and I was doing what I thought was best to help.

Q. You understand now that that shaking or any shaking is probably what caused his death?

A. Yes.

Q. I mean, that's what the medical examiner said.

A. Yes.

Q. Did you shake him out of anger?

A. No

Q. Were you trying to snap him out of it?

A. Yes.

Q. What were you trying to snap him out of?

A. Whatever was wrong.

Q. How long did the shaking take?

A. Ten, 15 seconds.

Q. Why did you shake him -- why did you shake him so long? That's a long time.

A. The more I shook him, the more he responded, or at least I thought. You know, he opened his eyes more. His breathing increased and then would stop, so I would continue to do it. And then his breathing would start up again and then stop.[1]

It is important to emphasize that Applicant did not admit to intentionally or knowingly causing the baby's death as the concurrence paints. Instead, Applicant stated that based on the medical examiner's testimony, he agrees that the act of shaking could have caused the baby's death.

Q. Did you intentionally or knowingly cause [A.H.]’s death?

A. Never.

Q. You know you cause it? Based upon the medical evidence you know that?

A. Yeah.[2]

There is a significant difference in what Applicant knew at the time he committed the act versus what Applicant knew at trial. He is not a medical expert, so the Court cannot attribute the medical expert's knowledge and testimony onto him. Lay persons, like Applicant, might know that certain acts (such as shooting someone) could cause death, but it is unlikely they would believe shaking a baby could cause death. Indeed, even the jury was not sure as evidenced by a note sent to the court during deliberations.

THE COURT: I received a note from the jury. Question, did you know shaking a baby would kill it? And another question, did you know shaking the, slash, your baby would kill it? Signed presiding juror. The note sent back by the Judge to the jurors was by whom were these questions posed? And is- the jury in dispute regarding the answers to the questions? Signed Judge. The jury has responded with a note answering yes to the question is the jury in dispute regarding the answers to the questions.[3]

Additionally, the medical examiner, Dr. Reade Quinton, testified that there were at least two different episodes of brain trauma, one occurring before the other.⁴ Dr. Quinton testified that the cause of death was blunt force trauma to the head that was severe, inflicted, and intentional.⁵ Applicant also testified that a few days before the death, the baby's changing table partially collapsed while he was changing the diaper and the baby slid down headfirst, causing the baby's head to strike a filing cabinet.⁶

However, Dr. Quinton testified that there were no real external injuries on the baby.⁷ As a result, the baby's injuries were caused by either slamming the baby on a soft surface, like a mattress, or by shaking him side to side.⁸ He testified that a low velocity fall would not have caused the injuries, and that significant force was necessary.⁹ When the prosecutor asked the medical examiner if a fall like the one described by Applicant, regarding the baby falling off the changing table, could have caused the injury to the child, Dr. Quinton responded that it would be so unlikely to be nonexistent.¹⁰ Moreover, Dr. Quinton also testified if the child suffered these injuries to his head, it would have been immediately obvious that there was something wrong with the baby.¹¹ In other words, there would be no lucid interval.

When Dr. Quinton was asked about the possibility of the existing blood collection rebleeding, and causing the child's condition, he said that a rebleed, if it happened, would not cause a lot of trouble.¹² Dr. Quinton also stated that the finding of subdural blood that appeared more than a day old simply shows that a prior injury to the head that bled, but that the bleed was not the cause of death.¹³

The testimony from Dr. Quinton has now been undermined by new science as detailed by this Court's decision in Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024). The State's case against Applicant was based on this medical testimony, which stated that the child could not have been injured in the way Applicant described (by the failure of the changing table). The State also relied on Applicant's admission of shaking the baby as the explanation for the injuries.

“In summary, Dr. Quinton made the following assertions that the Court of Criminal Appeals in the Roark case found to be contradicted by new science:

1. A short distance fall could not cause the injury to the child's head.

2. Shaking could cause the injury the child had.

3. A rebleed of the existing blood collection would not have caused any problem for the child.

4. The child would not have had a lucid interval after whatever occurred that caused his condition.

5. The child's condition was caused by inflicting significant force.

6. The child's condition was caused by an intentional inflicted act.”[14]

II. Habeas

Applicant provides affidavits from two experts, Dr. John Galaznik and Dr. Janice Ophoven, showing that there has been significant new science in the field of “shaken-baby syndrome” since Applicant's trial. The new scientific consensus is that short falls can cause a subdural hematoma and death, which was the cause of this child's death.¹⁵ Dr. Galaznik explains that

[o]ver the last several years, there have been videotaped short distance falls that have resulted in death with subdural bleeding and retinal hemorrhage. Furthermore, the recent biomechanical research, has established that the accelerations and requisite forces which can be generated in a short distance fall are adequate to result in subdural hemorrhage, subarachnoid hemorrhages, retinal hemorrhages, optic nerve hemorrhages, and death. I am familiar with this biomechanical research and it is consistent with my opinion. The current scientific belief is that a short distance fall can cause a subdural hematoma and death, which is what the medical findings in this case were.[16]

Dr. Galaznik clarifies the newness to the science as he explains that “Although there was some medical literature prior to 2007 that supported the conclusion that a short distance fall could cause this type of injury, since 2007, the medical opinions and consensus on this issue has significantly changed.”¹⁷ Recent advances also show that a child could actually have a lucid interval after such an injury, which contradicts the medical examiner's testimony in Applicant's trial.¹⁸

Dr. Galaznik also emphasizes the importance of the medical examiner testifying at trial that there were two different episodes of trauma to the baby's brain.¹⁹ That testimony is crucial because “[t]he medical community now recognizes that having a chronic or pre-existing subdural hematoma/collection increases the likelihood of a rebleed or new bleeding as a result of minimal impact, jostling or even sua sponte.”²⁰ Further, “[t]here are new scientific studies and case reports of videotaped fatal short distance falls that have disproven the claim that there is never a lucid interval following the occurrence of an injuring event that leads to the infant displaying symptoms such as unconsciousness with retinal hemorrhaging and subdural bleeding.”²¹

Additionally, Dr. Galaznik swears in his affidavit that the injury caused to this child could not have been sustained by shaking alone. He explains that:

Current biomechanical research indicates that any attempt to abusively shake a small child would at most produce 1000–1500rad/sec2 of potentially damaging rotational acceleration ․ When one considers that we have real human data where infants and children are self-generating ~1000rad/s2 in a Jumparoo ․ ~1600rad/s2 jumping rope ․ ~1000–2000–7000rad/s2 playing Pee Wee football ․ the assertion that an abusive shaking might be primary injuring event directly producing primary brain injury, primary retinal hemorrhages, and subdural bleeding in a previously normal child is not supported by the current experimental literature.[22]

Further, Dr. Galaznik explains that “it is now acknowledged in current textbooks on Child Abuse that, ‘[u]nfortunately, nobody has yet marshaled a coherent and comprehensive argument in support of shaking as a casual mechanism for abusive head trauma.”²³

Dr. Ophoven adds to this notion as she states that:

Dr. Quinton testified regarding the presence of retinal and optic nerve hemorrhage in [A.H.]’s eyes. In the past physicians were taught that retinal hemorrhages were a strong indicator of abuse especially from shaking. This is no longer a reasonable conclusion. In 2017, the Swedish Karolinska Institute undertook an extensive analysis of the available scientific proof of the key elements used to diagnosis Shaken Baby—retinal hemorrhages, subdural blood encephalopathy [brain swelling] ․ This work and other similar multidisciplinary reviews of the available evidence have repeatedly identified the hazards of interpreting these findings as evidence of trauma let alone trauma from shaking.[24]

Additionally, Dr. Ophoven touches on the subject of the previous fall stating that “The key question in this case is whether a relatively minor fall in a 7-week-old infant with an obvious pre-existing intracranial pathology could result in a fatal complication leading to cardiac arrest. The answer is absolutely yes.”²⁵

Based on new scientific advances, it is not as clear-cut that the victim in this case was intentionally injured by shaking. While this death may have been caused by intentional conduct, the testimony at trial was misleading due to new scientific advances since trial.

In Roark, this Court noted that the habeas trial court found that there is no scientific validation to the claim that shaking alone can cause the type of injury the child had in that case. Roark, 707 S.W.3d at 178–79. The habeas court here found that the authority cited in Roark equally applies to the facts of this case. The habeas court finds, had the scientific evidence been presented at trial, on the preponderance on the evidence, Applicant would not have been convicted. The State and trial court therefore recommend granting a new trial. That recommendation is supported by the record, so I would grant a new trial under art. 11.073.

III. 11.073 Writs

Texas Code of Criminal Procedure Article 11.073 states that “[a] court may grant a convicted person relief on an application for a writ of habeas corpus if ․ the court ․ finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.” Tex. Code Crim. Proc. Art. 11.073 (b)(2) (emphasis added). “Preponderance of the evidence” means the greater weight and degree of credible evidence. Shah v. State, 403 S.W.3d 29, 34 (Tex. App. 2012); see also Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974) (“[A]n order revoking probation must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.”). Here, the statute's low burden has been met by Applicant in this case. There is at least a 51% chance that Applicant would not have been convicted if the jury heard from a medical expert that the baby's fall from the changing table could have caused his death, and that shaking alone would not cause the result in this case.

Moreover, the remedy for successful article 11.073 writs is to provide the applicant with a new trial, not declare the Applicant innocent. The purpose of this statute is to afford defendants with their constitutional right to due process of law. Granting relief does not mean that a defendant is off the hook. It just means that we are trusting the system—that justice will be done when true and correct information is presented at trial. Here, did the defendant truly have a fair trial if both the State and trial court find the evidence to be false? I believe not.

IV. Stare Decisis

The Supreme Court of the United States has stated that “[s]tare decisis ․ is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)). “Adhering to precedent ‘is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.’ ” Payne, 501 U.S. at 827, 111 S.Ct. 2597 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting)). “Although ‘not an inexorable command,’ stare decisis is a foundation stone of the rule of law, necessary to ensure that legal rules develop ‘in a principled and intelligible fashion[.]’ ” Bay Mills Indian Cmty., 572 U.S. at 798, 134 S.Ct. 2024 (first quoting Payne, 501 U.S. at 828, 111 S.Ct. 2597; and then quoting Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598, (1986)). Therefore, the Supreme Court has held that “any departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).

This Court handed down Roark on October 9, 2024, less than nine months ago. Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024). Not only does the concurring opinion ignore the change in science regarding the validity of shaken-baby syndrome cases recognized by Roark, but it ultimately would also overturn Roark. Nonetheless, the concurrence has not suggested a “reason sufficient to warrant our taking the exceptional action of overruling” Roark. Rumsey, 467 U.S. 203 at 212, 104 S.Ct. 2305. We shall not ignore scientific advances, and we shall not ignore our own precedent without special justification lacking in the case at hand. Instead, our job is to fight for justice.

V. Conclusion

Overall, Applicant clearly met the burden of demonstrating to the Court that if the new science was presented at trial, it is more likely than not that he would not have been convicted. At trial, the jury heard evidence that a short distance fall, like the fall Applicant testified to, could not have been the baby's cause of death. The new science proves otherwise. At trial the jury also heard testimony from the medical expert that shaking a baby from side to side can cause this type of injury. Again, recent scientific advances prove otherwise. Applicant is entitled to a new trial with true and correct scientific evidence.

FOOTNOTES

1.   Applicant also made this admission at trial, stating, “I shook him” and “[p]icked him up in my arms and proceeded to shake him, forward and backwards and side to side.” When asked if he knew that he caused his baby's death, Applicant replied: “Yeah.”

2.   I have elsewhere suggested that our adversarial system works better when the parties actually serve as adversaries. See Ex parte Causey, 710 S.W.3d 829, 831 (Tex. Crim. App. 2025) (Yeary, J., dissenting) (“[O]ur adversarial system works best when the parties are adversarial.”); see also id. at 830 (Schenck, P.J., dissenting) (Finley, J., joining) (suggesting the Office of the State Prosecuting Attorney participate in a situation where the State agreed relief was appropriate). This concern is amplified even more in 11.073 habeas proceedings. Why? Because “[i]n sorting the untested or invalid theories from those that are grounded in ‘good’ science, trial judges are called upon to serve as ‘gatekeepers.’ ” Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595–99, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). But the “gatekeeper” function can be skewed when a judge is only presented with one side of a story.As will be seen in the text, post, there is arguably credible and reliable scientific evidence suggesting that SBS or Abusive Head Trauma (AHT) remains a legitimate diagnosis, at least in some cases. But this other arguably credible and reliable scientific evidence does not seem to have been presented at either the habeas proceedings in this case or at those conducted in Roark. Without meaningful adversarial testing, the habeas judges in these cases might have been misled.

3.   This opinion is not intended to serve as a comprehensive review of all of the scientific literature that exists on this topic. Rather, it only seeks to demonstrate that arguably credible and reliable scientific evidence still supports SBS or AHT. But curiously, in these non-adversarial habeas proceedings, this evidence does not seem to have been examined by anyone.

4.   AAP policy statements automatically expire five years after publication unless the statement is reaffirmed, revised, or retired at or before that time. Although it does not appear that the AAP has explicitly reaffirmed the statement, in March of 2025, it issued a “Technical Report,” acknowledging that, with respect to biomechanic studies, “most pediatric brain injury thresholds are derived from adult humans or immature animals and may not account for differences in the infant brain composition or the infant physiological response to trauma.” Sandeep K. Narang et al., Abusive Head Trauma in Infants and Children: Technical Report, 155 Pediatrics 1, 20 (2025) (Technical Report of the Am. Acad. of Pediatrics), https://publications.aap.org/pediatrics/article/155/3/e2024070457/201049/Abusive-Head-Trauma-in-Infants-and-Children.

5.   See South Carolina v. Gathers, 490 U.S. 805, 824, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) (Scalia, J., dissenting) (“The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.”), overruled by Payne v. Tennessee, 501 U.S. 808, 830, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); see also Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 411, 144 S.Ct. 2244, 219 L.Ed.2d 832 (2024) (citations omitted) (“[P]art of ‘judicial humility’ ․ is admitting and in certain cases correcting our own mistakes, especially when those mistakes are serious[.]”).

1.   RR 5:106–07.

2.   RR 5:109.

3.   RR 5;172–03

4.   RR 4:123–24.

5.   RR4:125; RR 4:134.

6.   RR5:97–98.

7.   RR4:117.

8.   RR4:128–29.

9.   RR 4:126.

10.   RR 4:127.

11.   RR 4:127.

12.   RR 4:137.

13.   RR 4:140.

14.   Suppl. HCR 885.

15.   Suppl. HCR 1800.

16.   Id.

17.   Suppl. HCR 1801.

18.   Id.

19.   Id.

20.   Id.

21.   Id.

22.   Suppl. HCR 1802.

23.   Suppl. HRC 1802.

24.   Suppl. HCR 1818.

25.   Id.

Per curiam.

Yeary, J. filed a concurring opinion joined by Parker, J. Walker, J. filed a dissenting opinion. Newell, J. dissented.