MELVIN OMAR MORALES GOMEZ v. THE STATE OF TEXAS (2026)

CONCURRING OPINION

In Ex parte Roark, this Court concluded that “scientific knowledge has evolved regarding [shaken baby syndrome].” 707 S.W.3d 157, 185 (Tex. Crim. App. 2024). In three petitions for discretionary review refused today, each appellant challenges the sufficiency of the evidence to support his or her conviction in light of Roark. See Matthews v. State, No. PD-0001-26; Morales-Gomez v. State, No. PD-0171-26; Franklin v. State, No. PD-0269-26. I agree with the Court's decision to refuse review in each case on each appellant's sufficiency challenge. I write separately to highlight why the Court is correct to refuse review and also to discuss how, in my view, the bench and bar should address “shaken baby syndrome” moving forward.

I. Factual Background

a. Trial

Appellant lived with his three-year-old nephew, K.L., and several family members. Appellant was K.L.’s primary caregiver. On the morning of the offense, Appellant's wife saw K.L. crying but otherwise apparently well before Appellant drove her to work. Three hours later, Appellant reported that K.L. was sick and brought the unresponsive, abnormally breathing child to his wife's workplace before seeking emergency care. K.L. died three days later.

K.L. suffered an acute subdural hematoma requiring emergency surgery, bilateral retinal hemorrhages, but no skull fracture. His external injuries included bruises and abrasions of varying ages, multiple broken teeth, apparent bite marks, and healing jaw and clavicle fractures. Medical examiner Dr. Darshan Phatak determined that K.L died from blunt-force head trauma and classified his death as a homicide.

The State charged Appellant with felony murder predicated on injury to a child. See Tex. Penal Code § 19.02(b)(3). The indictment alleged that he caused K.L.’s fatal injuries by striking him with or against a blunt object, throwing him against a blunt object, shaking him, or inflicting violent acceleration-and-deceleration forces.

At trial, pediatric ophthalmologist Dr. Layla Ghergherehchi described K.L.’s extensive multilayer retinal hemorrhages as highly suspicious for abusive head trauma (AHT) and rarely associated with accidental trauma, although she could not determine whether they were accidental or inflicted. Child-abuse pediatrician Dr. Van Michelle Ruda concluded that K.L.’s brain injuries, retinal hemorrhages, and bite marks provided substantial evidence of physical abuse. She testified that acceleration-and-deceleration forces, including shaking, can cause subdural and retinal hemorrhages without corresponding external trauma and distinguished K.L.’s retinal bleeding from short falls and other accidental causes. Dr. Phatak testified that multiple impact and shaking mechanisms could have operated together, although shaking would not cause the contusions. He ruled out a short fall or medical condition and opined that K.L. would have become symptomatic immediately.

Appellant's younger brother testified that Appellant had hit K.L. “super hard” and disciplined both children with a belt. School officials testified that Appellant admitted hitting K.L.’s brother and observed marks consistent with physical discipline. Investigators found blood in Appellant's apartment and on clothing containing K.L.’s DNA alone or mixed with Appellant's.

Appellant presented no competing medical expert and did not argue at trial that the propositions associated with shaken baby syndrome or AHT were scientifically discredited. Through household witnesses and cross-examination, he elicited evidence that K.L. had experienced seizure-like episodes and recently struck his head in accidental incidents. He also emphasized that the experts lacked K.L.’s full medical history, could not identify precisely how the fatal injury occurred, and could not attribute all external injuries to abuse. The jury found Appellant guilty of felony murder. He was sentenced to fifty-five years’ imprisonment.

b. Appeal

The court of appeals affirmed. Morales-Gomez v. State, No. 14-24-00543-CR, 2025 WL 3672142, at *7 (Tex. App.—Houston [14th Dist.] Dec. 18, 2025) (mem. op., not designated for publication). The court of appeals distinguished Roark for “four key differences,” id. at *2, and concluded that “[t]he evidence show[ed] a pattern of abuse by Appellant towards [K.L.] that culminated with [K.L.] arriving at the hospital unresponsive with a subdural hematoma, bilateral retinal hemorrhages, and bruises and abrasions over his entire body. Medical interventions were unsuccessful, and [K.L.] died of his injuries.” Id. at *4. Consequently, “this evidence [wa]s legally sufficient to support Appellant's conviction for felony murder with the underlying felony of injury to a child.” Id. (citing Tex. Penal Code §§ 19.02(b)(3), 22.04).

II. Applicable Law

When assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts consider the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found that the State has proven the essential elements of the crime beyond a reasonable doubt. Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When drawing inferences, the trier of fact may use common sense, common knowledge, personal experiences, and observations from life. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). When the record supports conflicting reasonable inferences, we presume that the trier of fact resolved those conflicts in favor of the conviction, and we defer to those resolutions. Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App. 2023).

This standard applies whether the case was proven by direct or circumstantial evidence. Laster v. State, 275 S.W.3d 512, 520–21 (Tex. Crim. App. 2009). This standard gives full responsibility to the trier of fact to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Id. at 522. A factfinder may believe all, some, or none of a witness's testimony. Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). As the reviewing court, we do not sit as the metaphorical “thirteenth juror.” See McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023). We cannot substitute our judgment for that of the trier of fact by reevaluating the weight and credibility of the evidence. Id. We must affirm the conviction if the inferences necessary to establish guilt are reasonable based upon the “cumulative force” of all the evidence when viewed in the light most favorable to the conviction. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

III. Sufficiency Discussion

To start, the State's theories at trial were not limited to “shaking.” The State also alleged that Appellant struck K.L. with a blunt object or threw K.L. against one. Furthermore, the State's medical examiner excluded shaking as the sole cause for the injuries and testified that K.L.’s contusions were consistent with other sources of abuse. For example, the State's medical examiner attributed contusions to K.L.’s forehead and scalp to blunt-force head trauma. Additionally, K.L. had bruises and abrasions of varying ages, bite marks, broken teeth, and healing fractures. And the State further presented evidence that Appellant was K.L.’s primary caregiver, had previously hit him, was caring for him when he became unresponsive, and was connected to bloodstains containing K.L.’s DNA.

Under the applicable Jackson standard, K.L.’s widespread external injuries and the medical evidence of blunt-force head trauma supported the alternative impact-based manner and means, while the other witnesses’ testimony and circumstantial evidence identified Appellant as the perpetrator. The entire record showed a pattern of physical abuse culminating in K.L.’s fatal injuries, which was sufficient to support Appellant's conviction for felony murder.

IV. Shaken Baby Syndrome Moving Forward

a. Recent developments in the law

Roark is by no means a “stand-alone” case when it comes to judicial recognition of scientific changes in the understanding of shaken baby syndrome.

i. In re Moore, — Cal. Rptr. 3d —, No. D086215, 2026 WL 2640657 (Cal. Ct. App. Sept. 8, 2026).

Jason Harley Moore was charged with one count of assault by means of force likely to produce great bodily injury on a child resulting in death pursuant to California Penal Code section 273ab after his infant daughter, Charlotte, sustained fatal head injuries while in his care. Id. at *1. He was convicted and sentenced to twenty-five years to life in prison. Id.

At trial, Dr. Mark Massi, the forensic pediatrician that examined Charlotte, testified Charlotte's injuries were “[a]bsolutely” inconsistent with a short fall from a bed and such a fall “would not account for her condition.” Id. at *7. The appellate court further restated Dr. Massi's testimony:

[Charlotte's] injuries were “more consistent with the forces to which an infant would be subjected in a car crash or a fall from multiple stories.” He stated the level of force required to cause Charlotte's injuries was such that “if there were an observer in the room [when Charlotte was injured], the observer would have been distressed by the violence with which these injuries were inflicted.” He further explained Charlotte's retinal hemorrhaging was different from hemorrhaging seen outside of the child abuse context and Charlotte's hemorrhaging was “not characteristic of any other process” besides abuse. Given the nature of Charlotte's injuries, he testified “something much more traumatic [than a fall from the bed] had happened to her.” He twice stated, “This was a major traumatic event.”

Id. Two other state's experts testified that a short fall could not have caused the injuries, stating that “there's no convincing evidence to me that a child could sustain a fracture from ․ a fall of that height” and that Charlotte's injuries were not “consistent with a three-month-old who allegedly sustained a short fall of 26 inches or so onto a carpeted surface.” Id.

Moore filed a writ of habeas corpus, claiming (1) “the prosecution's expert trial testimony has been undermined by scientific developments since trial and, thus, the testimony constitutes false evidence,” (2) “the scientific developments have created a significant dispute in the medical community in Moore's favor,” and (3) “the scientific developments constitute new evidence of Moore's innocence.” Id. at *1. Upon a review of the trial evidence and the developments in shaken baby syndrome science, the appellate court concluded that “experts now agree scientific developments have established a short fall can cause the types of injuries Charlotte suffered, even if rare.” Id. at *8. Consequently, the appellate court concluded that the trial testimony of the medical experts, “which was essential to their opinions that Moore abused Charlotte, was false.” Id.

ii. Georgia v. Smith, Case No. 02-B-2388-6 (Ga. Super. Ct. July 21, 2026)

Danyel Smith was convicted of felony murder and aggravated battery in connection with the death of his two-month-old son, Chandler, based on a diagnosis of shaken baby syndrome. The trial evidence showed that on April 29, 2002, Chandler became unresponsive and “was not breathing.” Smith v. State, 657 S.E.2d 523, 524–25 (Ga. 2008). When Chandler was taken to the hospital, a CT scan of his brain “revealed a skull fracture, a hematoma, and swelling of the brain.” Id. at 525. “Based on the CT scan as well as Chandler's broken wrists, retinal hemorrhages, and the quick onset of his symptoms, Chandler was diagnosed as a ‘shaken baby,’ who had been subjected to vigorous shaking that was probably coupled with impact.” Id.

The state's theory at trial was one of abuse. The prosecutor argued that “there's no other explanation that the doctors might look for that would explain these symptoms, other than non-accidental trauma; that is, child abuse.” The consulting pediatric neurosurgeon, Dr. William Boydston, who saw Chandler at the hospital, testified about his diagnosis: “Unless somebody could tell me something else was going on with this child, guys, I don't — You know, I think he was a shaken baby. I'll be happy if somebody can tell me something else.” Smith was convicted and sentenced to twenty years’ confinement on each count.

Smith then filed an extraordinary motion for new trial based on newly discovered evidence, arguing that the science surrounding the diagnosis of brain injuries in infants has dramatically evolved since his trial and pointing to a new expert affidavit ruling out shaken baby syndrome as the cause of Chandler's death. Smith v. State, 922 S.E.2d 6, 11 (Ga. 2025). In July of 2026, the Superior Court of Gwinnett County granted Smith's extraordinary motion for a new trial. See Order at 14, available at https://tinyurl.com/3my9btwy (last visited Oct. 7, 2026). The trial court recognized a “fundamental shift in the diagnostic approach to brain findings in infants,” from “the prevailing approach” in 2003 that “treated [shaken baby syndrome] as a presumptive diagnosis” to the “current medical and scientific standards [which] require a comprehensive differential diagnosis that considers alternative, non-abusive causes before concluding abuse.” Id. at 8. On the issue of materiality, the trial court held that because Smith “presented a coherent, comprehensive, and medically and scientifically supported alternative explanation for Chandler's death, corroborated by five medical specialists,” which would have supported Smith's non-abuse theory at trial. Id. at 13. Consequently, because “a reasonable juror could find [Smith's] newly discovered expert testimony plausible and persuasive,” Smith met the materiality requirement for a new trial. Id.

iii. State v. Nieves, 345 A.3d 1127 (N.J. 2025)

In Nieves, the Supreme Court of New Jersey was “asked to determine whether expert testimony regarding [shaken baby syndrome] is sufficiently reliable to go before a jury in two separate cases.” Id. at 1132–33. In both cases,

the young children exhibited symptoms that have come to be associated with [shaken baby syndrome] and referred to as the “triad of symptoms” — subdural hematoma, retinal hemorrhages, and encephalopathy. In both cases, after the children were examined by various medical specialists and a series of tests were run, the same doctor determined that the children were victims of child abuse, specifically [shaken baby syndrome]. Because the children were in the care of their fathers when they began to exhibit the above-mentioned symptoms, both men were charged with criminal offenses, including aggravated assault and child endangerment.

Id. at 1133. The trial court in each case excluded the state's proposed shaken baby syndrome testimony and expert. See id.

Applying the Frye ¹ standard for the admissibility of expert testimony, the New Jersey Supreme Court concluded that the state had failed to meet its burden for admissibility because the state had failed to show “general acceptance within the biomechanical community regarding whether shaking without impact can produce the ‘triad’ of symptoms associated with [shaken baby syndrome]: subdural hematomas, multilayered retinal hemorrhages, and encephalopathy.” Id. at 1167. The New Jersey Supreme Court concluded that an expert's testimony that the “only explanation” for the “triad” of symptoms “is child abuse” is “unreliable” and “inadmissible” at trial. Id. at 1172.

iv. Other cases

People v. Lemons, 22 N.W.3d 42, 63 (Mich. 2024): Reversing conviction, finding that the trial court abused its discretion in not admitting the defendant's proposed expert testimony in shaken baby syndrome prosecution.

State v. Butts, 2023-Ohio-2670, ¶ 102 (Ohio Ct. App. Aug. 1, 2023): Vacating convictions in shaken baby syndrome prosecutions, concluding that the medical community's understanding of shaken baby syndrome has “clearly changed” since 2003 and the state's original retinal-hemorrhage testimony “was incorrect and can no longer be supported by science.”

People v. Ackley, 870 N.W.2d 858, 867 (Mich. 2015): Reversing conviction for ineffective assistance of counsel when counsel failed to investigate adequately and to attempt to secure appropriate expert assistance in the preparation and presentation of the defendant's defense in a shaken baby syndrome prosecution.

b. What could and should be done

The major theme that comes through the instant petitions for discretionary review and the other shaken baby syndrome cases listed above is that, in many cases, trial counsel failed to meaningfully challenge the State's shaken baby syndrome evidence at trial. This creates two readily apparent problems. First, regardless of Roark, subsequent sufficiency challenges on appeal will always fail so long as there is some evidence that permits a rational juror, when viewing that evidence in the light most favorable to the verdict, to find all the necessary elements of the offense. See Jackson, 443 U.S. at 319. Second, at least for these three appellants—and others similarly-situated post-Roark—a Code of Criminal Procedure Article 11.073 habeas claim is almost certainly precluded because Roark and the advances in shaken baby syndrome are not new science for purposes of Article 11.073. After all, Roark cannot be “new” if one is prosecuted after Roark was decided. Of course, these appellants may have recourse in an ineffective-assistance-of-counsel claim, but that is by no means guaranteed.

Defense attorneys should be wary of letting shaken baby syndrome evidence go unchallenged at trial. For example, to date, no case that has reached this Court post-Roark has challenged the admissibility of expert testimony at trial under Rule 702. Compare Nieves, supra at 11. All attorneys have an obligation to stay abreast of changes in the law, particularly in an evolving area of jurisprudence post-Roark. Defense attorneys should consider all possible methods of combatting and rebutting this evidence at trial. Casting a wide net in defense strategies to give reviewing courts ample opportunity to consider a case on appeal is a much-preferred approach in shaken baby syndrome cases than simply adopting a “we'll win on appeal” gamble. Proper pre-trial investigation and development of defense expert testimony is paramount to effective representation of clients in shaken baby syndrome prosecutions. Without these safeguards, defendants face nearly certain affirmance on sufficiency review and defense attorneys face potential ineffective-assistance-of-counsel claims in habeas.

V. Conclusion

With these thoughts, I join the Court's decision to refuse review.

FOOTNOTES

1.   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Finley, J., filed a concurring opinion.