FRANKLIN v. STATE (2026)

CONCURRING & DISSENTING 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. But I separately dissent from the Court's refusal of Appellant's first ground for review, related to the construction of the felony murder statute.

I. Factual Background

a. Trial

Appellant was babysitting fourteen-month-old J.C. when J.C. suffered a fatal head injury. The State charged Appellant with felony murder predicated on injury to a child and with intentionally or knowingly causing serious bodily injury to a child. Both charges alleged the same conduct: causing J.C.’s acceleration and deceleration with Appellant's hand or by striking J.C. with or against an object or surface.

Appellant claimed that J.C. fell from the front seat of her car onto the concrete driveway. But the State's medical experts testified that J.C.’s injuries resulted from a high-force acceleration-and-deceleration event and were inconsistent with such a fall. The jury found Appellant guilty of felony murder. The jury also acquitted her of intentional or knowing injury to a child but convicted her of the lesser-included reckless offense.

b. Appeal

The court of appeals affirmed. Franklin v. State, No. 02-25-00036-CR, 2026 WL 547522, at *8 (Tex. App.—Fort Worth Feb. 26, 2026) (mem. op., not designated for publication). The court of appeals noted that there was no contravening evidence in the appellate record to rebut the State's evidence. Id. at *3 (“[Appellant] was free to object to the admission of the State's medical expert testimony at trial, she was free to offer evidence calling the experts’ testimony into question, and she was free to cross-examine the experts on the alleged flaws in their opinions. To the extent that she failed to do so, she cannot now supplement the record with evidence that she wishes she had offered.”); id. at *4 (“[Appellant] was free to offer ․ information” about Roark “at her trial.”). The court of appeals then noted that Appellant “does not dispute that, when [the State's] expert testimony is considered, there was sufficient evidence to support her convictions.” Id. at *5. Consequently, the court of appeals concluded that the evidence was sufficient. Id.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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

The State's medical experts did not rely upon shaken baby syndrome at Appellant's trial; shaken baby syndrome was introduced only via Appellant during cross-examination. Moreover, the State's medical examiner agreed on cross that shaken baby syndrome was no longer considered a valid medical assessment. But that concession concerned a theory the prosecution did not advance and did not contradict the experts’ separate opinions that J.C.’s injuries resulted from high-force impact or acceleration-and-deceleration trauma and were inconsistent with Appellant's account of a fall from a stationary vehicle. Moreover, Roark did not hold that every opinion ruling out a particular short fall amounts to no evidence or categorically repudiates abusive head trauma testimony. See Roark, 707 S.W.3d at 187–88. Under the applicable Jackson standard, the jury was permitted to credit the State's expert's testimony and the State's explanation for J.C.’s injuries. Consequently, the evidence was sufficient to support Appellant's conviction for the underlying felony offense.

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, 123 Cal.App.5th 57, ––– Cal. Rptr. 3d –––– (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.––––, 2026 WL 2640657 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. ––––, 2026 WL 2640657 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. ––––, 2026 WL 2640657 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.––––, 2026 WL 2640657 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, 283 Ga. 237, 657 S.E.2d 523, 524–25 (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, 322 Ga. 743, 922 S.E.2d 6, 11 (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, 262 N.J. 161, 345 A.3d 1127 (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, 514 Mich. 485 (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, 2023 WL 4883377 (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, 497 Mich. 381, 870 N.W.2d 858, 867 (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, 99 S.Ct. 2781. 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. Felony Murder

With all that said, I turn to Appellant's first ground for review. This case presents again a recurring question about this Court's construction of the felony murder statute. See Tex. Penal Code § 19.02(b)(3). As I have explained several times before, this Court's “current felony murder jurisprudence appears unsupported by the plain text of the statute.” Fraser v. State, 726 S.W.3d 253, 274 (Tex. Crim. App. 2025) (Finley, J., dissenting); Posey v. State, 730 S.W.3d 443, 443 (Tex. Crim. App. 2026) (Finley, J., dissenting). Indeed, this Court's continuing practice of permitting “the same act to serve as the underlying felony and the act clearly dangerous to human life deviates from Section 19.02(b)(3)’s text.” Fraser, 726 S.W.3d at 277.

This case presents the Court yet another opportunity to right the ship. The State charged Appellant with felony murder predicated on injury to a child and with intentionally or knowingly causing serious bodily injury to a child. For purposes of Appellant's felony murder charge, both the underlying felony and the act clearly dangerous to human life alleged the same conduct: causing J.C.’s acceleration and deceleration with Appellant's hand or striking J.C. with or against an object or surface.

Appellant's first ground for review asks the following question:

Did the Court of Appeals err in holding that a single act can constitute both the act clearly dangerous to human life and the underlying felony of injury to a child under Texas Penal Code section 19.02(b)(3), contrary to the plain text of the statute?

(Original emphasis). The plain text of the felony murder statute does not permit “the same act to serve as the underlying felony”—in this case, the aggravated assault—“and the act clearly dangerous to human life.” Fraser, 726 S.W.3d at 277; Posey, 730 S.W.3d at 444. This case provides this Court another opportunity to course correct and give effect to the felony murder statute's plain text.

VI. Conclusion

With these thoughts, I join the Court's decision to refuse review of Appellant's sufficiency challenge, but I respectfully dissent from this Court's continued refusal to properly interpret the felony murder statute as written by the Legislature.

FOOTNOTES

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