EX PARTE ROBERSON III v. << (2025)

CONCURRING AND DISSENTING OPINION

One of Applicant's main and persistent claims is that the scientific theory of “shaken baby syndrome” has been discredited. But we need not concern ourselves with the status of that scientific theory here. Applicant's case is not a “shaken baby” case. It is not even a so-called “shaken impact” case, in which shaking is stopped by an impact on a pillow or other soft object, which then purportedly causes the baby's brain to crash into the inside of the skull. This case is a “blunt-force trauma” case. A shaking or “soft” impact cannot explain the “boggy” spot on the two-year-old child's head, the two different kinds of bleeding outside the skull, the bruising on the face and ears, and the bleeding from a tear in the mouth. One of Applicant's other repeated contentions is that the child could have died from a short fall. But when one catalogues the extensive injuries suffered by the child, including two different types of fresh, inside-the-skull, bleeding, the obvious conclusion to draw is that the child was beaten to death.

Nikki, the decedent in this case, was not a “baby.” She was over two years old. She was far less vulnerable to injury than an actual infant, or even the 13-month old child in Ex parte Roark.¹ Nikki had extensive injuries to the face and the back of the head,² which were described as “massive” and “very extensive.” She had a bruise on her chin, bruising along the left side of her jaw and cheek, a bruise on the right side of the forehead, a scrape next to the left eye, and bruising on the back of the head that was severe enough to cause bleeding underneath the scalp, resulting in a swollen, “mushy” or “boggy,” soft spot. The “mushy spot” on the back of the head was a group of bruises, and was the type of injury that was “really only seen in impacts to the head.” The bruising on Nikki's face looked like a hand print. She had a lacerated frenulum (connective tissue in the mouth between the upper gums and the upper lip) and bruising just inside each ear.

Nikki suffered from five different types of bleeding—two inside the skill, two outside the skull, and one in the mouth. Inside the skull was subdural and subarachnoid bleeding. Outside the skull, but underneath the scalp, was subscalpular and subgaleal bleeding, which were sources of the “mushy” spot discussed earlier. And the bleeding from the mouth was likely from the torn frenulum. All of the bleeding was fresh blood, indicating recent injuries.

The emergency room physician testified that there was “extensive bleeding all throughout the head.” Consequently, he concluded that a single head impact from a fall from a bed would be extremely implausible, if not impossible. The pathologist testified that the hemorrhage beneath the scalp (outside the skull) was “very dense” and in “separate” locations. From this observation, she concluded that there were “multiple impacts over the entirety of the head.” She further concluded:

In particular, with this much hemorrhage it's very difficult to elucidate exactly [how] much blows there were. But I'm confident with these separate areas of dense hemorrhage and separate areas on the head that there were multiple blows to different points on the head.

The pathologist said that the injuries to the child's brain would have been “immediate” and that the child would have “immediately suffered what we call a change in the level of consciousness.”

The pathologist also testified that Nikki had a bruise on the back of her right shoulder, a scrape on the left arm, a scrape on the left pinkie toe, a hemorrhage in the muscles of the back, and a very small amount of hemorrhage in the muscles of the neck on the back side at the base of the skull. Unsurprisingly, the manner of death listed in the autopsy was “homicide.”

The presence and severity of external injuries—that is, injuries outside the skull—debunk any notion that the homicide finding in the present case depends on the vitality of the scientific theory of shaken baby syndrome. Producing these external injuries required forceful contact with a hard surface. And the testimony was that there had to have been multiple forceful impacts to the head. The severity of the internal injuries and the multiple types of internal bleeding (inside the skull), when viewed with the external injuries, lend further support to the notion that a great deal of force was exerted against the child's head.

In fact, “shaken baby syndrome” was Applicant's defense. He tried to convince the jury that the death was inadvertent by relying on the idea that the child could have been killed due to shaking alone. Casting doubt on “shaken baby syndrome” actually hurts his case because it would make a jury even less likely to believe that the child's death was unintentional.

Moreover, Applicant's demeanor and statements show more than mere nervousness and display a consciousness of guilt. He called his girlfriend, Teddie Cox, to tell her that he was taking Nikki to the hospital because she was not breathing and would not wake up. But when Teddie called back, Applicant still had not left the house, and she urged him to do so. After the child had been taken to the hospital, Applicant actively prevented a nurse from talking to the child's maternal grandparents. To this same nurse, Applicant admitted to waking the child up every hour, which suggested he was aware of a head injury. He also said to her, “You know, I love my little girl. I would never mean to hurt her”—suggesting that he knew he had hurt her. Applicant told Sergeant Wharton that Nikki had simply fallen off the bed, but he later told his girlfriend Teddie Cox that she hit her head on a brick.

At the jail, Teddie directly asked Applicant if he had killed Nikki. Applicant responded that if he did do it, he did not remember and that he might have “snapped” but didn't remember doing so. And at the punishment phase of trial, Dr. Kelly Goodness, Applicant's expert, testified that Applicant admitted that he “lost it” and shook Nikki. He also admitted to her that he had lied to the authorities.

And Applicant had a previous history of abusive conduct toward the child. Courtney Berryhill, Teddie's eleven-year-old niece, saw Applicant shake Nikki by the arms in an attempt to make her stop crying. Rachel Cox, Teddie's ten-year-old daughter, testified that Applicant had a “bad temper” and that she had seen him shake and spank Nikki when she was crying. Rachel had seen this conduct occur about ten times. She also saw Applicant threaten to kill Nikki. Teddie testified that Applicant once yelled at Nikki, “If you don't shut up, I'm going to beat your ass.” She also saw Applicant hit Nikki with his hand and once with a paddle. Teddie also saw Applicant, while angry with Nikki, pick her up off the bed, shake her for a few seconds, and throw her back on the bed.

To the extent Applicant relies upon our recent decision in Roark, that case is readily distinguishable. It is true that the children in both cases had brain swelling with a mid-line shift. Both children had retinal hemorrhaging that was large enough to be seen by the naked eye. Neither child had a skull fracture. Both children had some injuries that might be indicative of sexual assault but ultimately could not medically be ruled as such. And in both cases, the defendant at the hospital seemed overly nervous and did not display emotions that would be expected of a close caregiver of a child whose life was in danger.³

But the child in Roark had no recent external injuries to the head,⁴ and she suffered from only one type of bleeding—subdural bleeding—which was present only inside the skull.⁵ Moreover, some of the blood inside the child's skull in Roark was from old blood, which suggested the possibility that the fresh blood could be a rebleed.⁶ This contrasts with Nikki suffering multiple external injuries to the head, five different types of bleeding, and all of the bleeding being fresh blood. It is also worth noting that the child in Roark did not die,⁷ but Nikki arrived at the emergency room “lifeless” and died of her injuries. And Applicant's suspicious conduct and incriminating admissions go well beyond the nervousness and possible lack of empathy in Roark.

And to the extent Applicant relies on experts who claim that the child's various bruises and bleeding could be the result of pneumonia or “disseminated intravascular coagulation,” this illness hypothesis is contradicted by the child's clear lungs, clear chest x-rays, and normal labs.

In summary, the evidence that the child died from multiple “hard” impacts to the head was strong. The story about the child falling out of the bed lacked credibility and was inconsistent with the evidence. Any evidence undermining “shaken baby” syndrome would not have helped Applicant, but would have made the jury more confident that Applicant intentionally and knowingly caused the child's death.

“Methinks he (Applicant) doth protest too much.” What can Applicant say about his confession to his own expert witness that he was in a rage? Or his confession to the mother of the child that he lost it and snapped? Or the testimony that Applicant had previously abused the child on a number of occasions? Or his various lies to the police? Or the expert diagnosis that the cause of the child's injuries and subsequent death was blunt force trauma? Or the autopsy finding of homicide?

Applicant has filed seven habeas applications—his seventh filed before we have even disposed of his sixth. And he has filed multiple “suggestions for reconsideration” in applications three through five, with this being his fourth suggestion to reconsider his third application, his third suggestion to reconsider his fourth application, and his second suggestion to reconsider his fifth application. Applicant has engaged in a course of conduct of relitigating past claims, repackaging earlier claims in ways that attempt to convey a change in substance but really don't, and adding new claims he could have raised long ago. I agree with the Court that his sixth and seventh applications do not meet an exception to the bar against subsequent applications,⁸ but I would also hold that all of his suggestions for reconsideration are without merit.⁹

In Ex Parte Torres, this Court observed that the subsequent-writ provisions in Articles 11.07 and 11.071 were meant to generally limit a convicted person to “one bite of the apple.”¹⁰ Applicant has been given numerous bites of the apple for approximately fifteen years on his journey to seek relief from his conviction. He has, in fact, had an entire apple pie.

The law does not afford him the relief he is seeking for the capital murder of his own daughter, whom he killed when he was in a rage because she was crying. Applicant's own trial attorney characterized Applicant's conduct as “the act of an angry, out of control parent” and essentially conceded that Applicant's short-fall story was a lie. From the grave, Nikki's voice calls out for justice.

I concur in the Court's order dismissing Applicant's sixth and seventh applications, but I dissent to the Court's decision to remand on his fifth application.

FOOTNOTES

1.   See 707 S.W.3d 157, 159 (Tex. Crim. App. 2024) (age of the child).

2.   This observation and others about the child's injuries have been taken from the testimony of various experts, including Kelly Gurganus and Andrea Sims (emergency-room nurses who observed Nikki), Dr. Thomas Konjoyan (the emergency-room physician), Dr. Jill Urban (the physician who conducted the autopsy), and Dr. Janet Squires (a pediatric expert who testified for the State at trial).

3.   See id. at 160-62 for the statements in this paragraph as to Roark's case. In Applicant's case, Dr. Squires said that sometimes a special scope was needed to see retinal hemorrhages but that, for Nikki, the retinal hemorrhages were “very obvious” and “[e]verybody could see them.” Dr. Urban testified that it was not unusual for a child with a serious head injury to not have a skull fracture because children “are very malleable.”Nurse Sims, testified that there were fresh tears to Nikki's anal area that were an indicator of sexual assault. But Dr. Squires called it a tiny laceration that was “nonspecific” and that she “did not feel there were any findings” of sexual assault. Dr. Urban testified that she did not see any injuries to the anus. Sims also testified that the anal opening dilated quickly, which was also an indication of sexual assault, but Dr. Squires discounted that fact because laxity in the anal opening meant very little in a comatose child. Sims further testified the child had a torn frenulum, which could also be a sign of sexual assault by forcing something in the mouth, but Dr. Urban testified it could have been caused by a blow to the mouth. Dr. Urban also testified that the semen test of the sexual assault kit was negative and that she and her colleague made no affirmative finding of sexual assault.

4.   Id. at 164.

5.   Id. at 161.

6.   Id. at 161, 180.

7.   Id. at 159.

8.   See Tex. Code Crim. Proc. art. 11.071, § 5.

9.   Many of the observations I make were also made in Judge Yeary's concurring opinion to the denial of Applicant's previous requests for reconsideration of his third and fourth habeas applications. See Ex parte Roberson, Nos. WR-63,081-03, WR-63,081-04, slip op. (Tex. Crim. App. Oct. 10, 2024) (not designated for publication). I agree with his opinion.

10.   943 S.W.2d 469, 474 (Tex. Crim. App 1997).

Parker. J., filed a concurring and dissenting opinion.