EX PARTE ROBERT LESLIE ROBERSON III v. << (2025)

Like Judge Parker, I concur in the Court's order insofar as it appropriately dismisses Applicant's last two subsequent writ applications (-06 and -07) and refuses to entertain suggestions to reconsider two of his previous subsequent writ applications (-03 and - 04). I dissent, however, to the Court's order to the extent that it reopens Applicant's subsequent writ application in Cause Number WR-63,081-05 and grants his motion for stay of execution.

To reopen a subsequent writ application that has already been disposed of—if it is ever appropriate—may be justified only under the most extraordinary of circumstances. Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 2008). That a reasonable, good faith argument can be made that our prior decision to dismiss the -05 subsequent writ application was, in hindsight, “incorrect” does not count as an appropriate basis to entertain a suggest for reconsideration. Id. In any event, the Court offers no such argument today. Once again, the Court is essentially ruling by fiat. See Ex parte Wood, No. WR-45,746-04, ___ S.W.3d ___, 2025 WL 2148862, at *21 (Tex. Crim. App. July 30, 2025) (Yeary, J., dissenting) (complaining of the Court “exercising its brute ability (if not authority) to order a remand [in a subsequent capital writ application] notwithstanding the strictures of Section 5 [of Article 11.071, Texas Code of Criminal Procedure]”).

I also take this occasion to reiterate my view that, for the reasons I gave recently in Ex parte Horvath, 2025 WL 1699335 (Tex. Crim. App. June 18, 2025) (not designated for publication), 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 necessarily junk science or that shaking alone cannot cause a serious brain injury to a child, it should be disavowed.

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. 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. 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 to 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.” 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/A busive-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/e2024070457/20104 9/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—a 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, 22 N.W.3d 42, 81 (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.

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 Roark might have suggested as much, I conclude that it erred. Credible and reliable scientific evidence suggests that shaking a child can indeed cause either serious bodily injury or death.

Moreover, this case has never been one in which the State relied for Applicant's conviction, exclusively or even principally, on the scientific theory underlying SBS. Instead, the State's predominant theory was that Applicant's young daughter was killed by the infliction of blunt force trauma. It was the defense who injected SBS as a theory of what happened in this case. So, the claim that Applicant's conviction turns on the scientific validity of SBS is manifestly false.¹

With these additional observations, I dissent to the Court's order insofar as it reopens Applicant's -05 writ application and stays his execution.

FOOTNOTES

1.   To illustrate my point, consider the following arguments of counsel for both the State and the Defense made just before the jury retired to deliberate Applicant's guilt or innocence:Arguments by the State in the opening part of its closing argument:“I anticipated ․ that we were going to have a battle with defense counsel as to what exactly happened, as to whether or not, as Mr. Roberson said in his confession, [the child victim] fell off the bed.” RR Vol. 46, p. 15.“Well, the defense counsel, they conceded that point in their opening statement. You heard defense counsel, you heard [Defense Counsel] say that this is a shaken baby case.” RR Vol. 46, p. 15.“Beating that child, for you to find him not guilty of capital murder, you would have to believe that in his beating that 28-pound child, at his size he wasn't aware that that might cause her death. That's what you'd have to find. He wasn't aware that that would cause her death, the beating of [the child victim].” RR Vol. 46, p. 18.“And he came up with this story that we've heard. And there are different variations of it, but it's essentially the same. ‘Everything was fine. We were watching movies. She fell asleep gently in my arms. I was awakened at five a.m., and, low and behold, the baby is crying on the floor, blood on her face, from this 22-inch fall.’ * * * Not only was she blue, but her face was battered. You heard the evidence that those marks began to appear even more throughout the treatment. She was bloodied, facial bruising, bruising of the shoulders. You heard the testimony that the back of her head was mush. That was the description. Mush.” RR Vol. 46, p. 20.“You heard ․ testimony that injuries ․ injuries to the severity that [the child victim] received are normally seen in car wrecks, when small children are brought in, car wrecks. That's the type of force that Mr. Roberson put [the child victim], his 2-year-old daughter, through.” RR Vol. 46, p. 21“You heard from Dr. Squires ․ And you heard her testimony that these were inflicted injuries consistent with not just shaken baby syndrome, this is not a child that was just shaken out of frustration, but shaken impact syndrome. This is a child that was not only shaken, but was beaten about the head. Child abuse, she ruled. You heard from Dr. Urban, the Medical Examiner. Not just shaken, but blunt force injuries to [the child victim], received multiple blows to the head. Multiple blows to the head. Not just, ‘I lost it’, you know, ‘Please be quiet.’ Sits her gently on the bed. But we're talking shaking and beating is what [the child victim] sustained.” RR Vol. 46, p. 25.Arguments by the Defense in their closing argument:“Yes, this is a shaken baby case, but no, this is not a murder case.” RR Vol. 46, p. 34“․ this case is being presented to you with an acceptance of responsibility, not dodging it, and an acceptance of appropriate responsibility.” RR Vol. 46, p. 41“Dr. Squires was asked by the State and by us whether this case was a classic shaken baby case. And it is.” RR Vol. 46, p. 42“Your act is bad. Yes; we do not deny that. But you have not formed a specific intent to murder.” RR Vol. 46, p. 43“The State has alluded that there's been an ongoing and escalating series of abuse administered to this child. The evidence isn't there to support that, not credible.” RR Vol. 46, p. 45“Shaken baby syndrome is what applies. It's got a new name of sudden impact, but it's still the same thing as noted by both the expert witnesses. And the one thing I will agree with what [the Prosecutor] said, ‘Listen to the expert witnesses. Evaluate their testimony.’ And if you do, it's clear that this was not an act of murder.” RR Vol. 46, p. 51Arguments by the State in the final part of its closing argument:“Knowingly is essentially he's beating his child that weighs 28 pounds and he wants you to believe that this man didn't reasonably know that that could cause that child's death. He did know. * * * ‘I'm reasonably certain this will kill my 2-year-old daughter, slam, slam.’ ” RR Vol. 46, p. 54“But how violent would a struggle be between a 230 pound man and a 28 pound baby? What would you expect? A lot of fight back from [the child victim]? He wants you to believe it's a pillow fight. Talked about all the things that could have caused these injuries. Well, could have been impact on a mattress. Could have been a pillow. This wasn't a pillow fight. Are we going to believe that Mr. Roberson in his fit of rage, ‘I'm really going to shake you like this, but I'm going to make sure that your head hits the pillow or the mattress. I don't want to cause too much damage. I want to fit into that category of criminally negligent homicide.’ ” RR Vol. 46, p. 57“But are we talking about an either or? Are we talking about he just shook her? You know, an out of control parent is frustrated because their child is sick and they pick them up and they shake them, shake them. Is that an out of control parent? No. He did this and then he starts punching them he slams her down and he throws her on the ground. And that's not intentionally or knowingly? Talked about her battered face. Did he just shake her? No. Frenulum is busted, ripped, torn, blood coming out. Multiple impacts to the head. You saw bruising to the shoulder. Take a look at her face on the photographs. This is not just, ‘I shook her and then I realized, well, maybe I shouldn't be doing that because they may file some sort of criminally negligent homicide, so I stopped.’ * * * Dr. Urban; multiple impacts to the head.” RR Vol. 46, p. 61“You've seen the autopsy report. The experts agree. There's seven doctors that wrote off on it as homicide. Intentionally inflicted injuries is what they characterize it as. Shaken impact syndrome. Multiple blows to the head. Not as ‘I'm out of control.’ It's an intentionally and knowingly produced injury.” RR Vol. 46, p. 63“Fact of the matter is, simply put, he just beat her to death. * * * He beat this child to death just like he said he was going to.” RR Vol. 46, p. 64“And the more she cries the madder he gets. And he picks her up and if you look at the bruising on her face, I think he just absolutely punched her in the face, slapped down on her face with his hand, busted her frenulum. And you look where the bruises are on her face. And he grabbed her face and he said ‘Shut the hell up.’ And pounded her head on whatever. And she kept crying. And did he stop then? No, he sure didn't. He picked her up then and he violently shook her like has been described. On and on and on and nobody's there to break it up. That's what he did. And then he threw her down on the floor where he says he found her. * * * And the last thing that she saw before he killed her was the hate in her dad's eye when he was shaking her to death is what she saw.” RR Vol. 46, p. 66“․ but we can sure hold people like Mr. Roberson accountable for what he did to his own little daughter in beating her to death.” RR Vol. 46, p. 68.

Yeary, J., filed an opinion concurring in part and dissenting in part, in which Parker, J., joined.