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IN THE
TEXAS COURT OF CRIMINAL APPEALS
ORIGINATING IN
3RD DISTRICT COURT, ANDERSON COUNTY, TEXAS
____________________________
) Trial Cause No. 26,162-A
EX PARTE )
ROBERT LESLIE ROBERSON III, ) Writ Cause No. WR-63,081-03,
APPLICANT ) -04
)
____________________________ )
SUGGESTION TO RECONSIDER ON COURT’S OWN INITIATIVE
CONSIDERING NEW EXPRESSION OF LEGISLATIVE INTENT AND
THE STATE’S CONCESSION IN MARKEDLY SIMILAR CASE THAT
RELIEF UNDER ARTICLE 11.073 IS WARRANTED
______________________________________________
Gretchen Sims Sween Callie Heller
Counsel of Record Texas Bar No. 24101897
Texas Bar No. 24041996 Western District of Oklahoma
PO Box 5083 Federal Defender Office
Austin, Texas 78763 Capital Habeas Unit
(214) 557-5779 215 Dean A. McGee, Suite 707
(512) 551-9448 fax Oklahoma City, OK 73102
gsweenlaw@gmail.com Callie.Heller@fd.org
(405) 609-5975
(405) 609-5932 fax
Pro Bono Counsel for Robert Leslie Roberson III1
1 Mr. Roberson is also represented by Vanessa Potkin and Jane Pucher of The Innocence
Project and Donald Salzman of Skadden, Arp, Meager, and Flom LLP, attorneys all in good
standing in the jurisdictions where they are licensed to practice law.
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TABLE OF CONTENTS
Table of Contents...................................................................................................... ii
Overview.................................................................................................................... 1
Procedural and Factual Background .......................................................................... 5
I. Pre-Trial ............................................................................................... 5
II. Trial...................................................................................................... 9
III. Initial Appeals....................................................................................14
IV. The -03 Proceeding............................................................................15
Reasons to Reconsider.............................................................................................22
I. Reconsideration Is Warranted Because Texas LAWMAKERS Have
Recently Expressed Concerns That The Legislative Intent Underlying
Article 11.073 Has Not Been Applied in This Case...............................22
A. Courts’ Application of Texas Law Must Reflect Legislative Intent.
23
B. Article 11.073 Was Enacted to Address Cases Just Like This One.
25
C. Mr. Roberson Easily Satisfied the Elements of Article 11.073......28
D. New Evidence of Legislative Intent from Lawmakers Warrants
Reconsideration. .............................................................................43
II. Texas Law Must Be Applied Consistently. .......................................47
Conclusion ...............................................................................................................48
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OVERVIEW
Applicant Robert Leslie Roberson III, through counsel, respectfully suggests
that this Court reconsider, on its own initiative, its Orders denying relief in Ex parte
Roberson, WR-63,081-03, 2023 WL 151908 (Tex. Crim. App. Jan. 11, 2023) and/or
dismissing on procedural grounds the claims in Ex parte Roberson, WR-63,081-04,
2024 WL 4143552 (Tex. Crim. App. Sept. 11, 2024). See TEX. R. APP. P. 79.2(d)
(authorizing the Court to reconsider the denial of an 11.071 habeas corpus
application “on its own initiative.”). This Court has recognized the advisability of
reconsidering the denial of habeas relief because of intervening changes in the
underlying facts or governing law. See, e.g., Ex parte Fierro, WR-17,425-03 & WR- 17,425-06, 2019 WL 6896993 (Tex. Crim. App. Dec. 18, 2019) (unpub.) (reopening
-03 writ on Court’s own initiative and granting habeas relief); see also Ex parte
Moreno, 245 S.W.3d 419, 422 (Tex. Crim. App. 2008).
Mr. Roberson was convicted of causing the 2002 death of his two-year-old,
chronically ill daughter, Nikki, in a 2003 trial in which the State relied on the
“Shaken Baby Syndrome”2 hypothesis to establish that a crime had occurred.
Experts who testified at trial told the jury that inflicted trauma/shaking was the only
2
“Shaken Baby Syndrome” was also known as “Infant Whiplash Syndrome,” “Shaken
Impact Syndrome,” and now “Abusive Head Trauma” or “AHT.” This last name change occurred
in 2009, six years after Mr. Roberson’s trial, as concerns about the premises underlying the Shaken
baby hypothesis became widespread.
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possible cause of Nikki’s condition. Since Mr. Roberson’s trial, the scientific and
medical understanding of the Shaken Baby hypothesis has changed significantly and
the scientific principles that formed the basis of his conviction have entirely eroded.
Over the years, the hypothesis has been revised and renamed “Abusive Head
Trauma” (AHT) but remains the center of massive controversy. But even current
AHT adherents concede that natural disease and accidental falls can cause the same
conditions formerly attributed solely to abuse, and even they admit that those natural
and accidental causes must be considered and excluded before abuse can be
posited—none of which occurred in Mr. Roberson’s case.
Mr. Roberson’s previous habeas proceedings—the -03 proceeding initiated in
2016, when this Court stayed Mr. Roberson’s then imminent execution date, and the
recent -04 proceeding just dismissed on September 11, 2024—both brought claims
under Articles 11.071 and 11.073. In both applications, Mr. Roberson presented
exactly the type of evidence called for by Article 11.073: evidence of a change in
scientific understanding from the testimony used at trial to obtain the conviction. He
showed that modern scientific understanding entirely discredits the expert opinions
used to convict him, and he then adduced new evidence showing that his daughter
Nikki died of a fatal pneumonia compounded by dangerous medications, now known
to suppress breathing, prescribed days before her collapse.