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IN THE

TEXAS COURT OF CRIMINAL APPEALS

) Trial Cause No. 26,162

EX PARTE )

ROBERT LESLIE ROBERSON III, ) Writ Cause No. WR-63,081-__

)

APPLICANT )

) EXECUTION DATE:

) OCTOBER 17, 2024

MOTION FOR STAY OF EXECUTION

Robert Leslie Roberson III (Robert), through counsel, respectfully moves for

a stay of his execution, which is currently scheduled for October 17, 2024. This

Motion for Stay of Execution (Motion) is filed coterminously with the filing of a

Subsequent Application for Writ of Habeas Corpus under Articles 11.071 and 11.073

(Application) in the convicting court. This Motion is filed, not for the purpose of

delay, but because further proceedings are needed related to the substantive new

claims in the Application, including a full and fair consideration of new evidence of

Actual Innocence.

If, because of the complexity of the scientific and constitutional issues raised,

this Court needs more time before authorizing claims under section 5, it should stay

the case to allow time for a fair adjudication. In support of this Motion, we

respectfully show the following:

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OVERVIEW

This Motion is filed to allow full and fair consideration of the five new claims

presented in the Application, which are summarized below. Each of the five new

claims presents substantial grounds for a new trial—as well as for an Actual

Innocence finding. The detailed evidence described in, and supported by, the

Application shows that a tragic miscarriage of justice will occur if the State is

permitted to move forward with the execution.

Robert was convicted and sentenced to death in 2003 for allegedly murdering

his chronically ill, two-year old daughter, Nikki Curtis, in 2002. New medical

evidence now shows that no crime occurred; instead, Nikki died because she ceased

breathing in her sleep as a consequence of a viral interstitial pneumonia with

secondary bacterial bronchopneumonia, a double infection exacerbated by

dangerous medications doctors, unaware of her pneumonia, prescribed to her during

the last week of her life.

When applicant’s previous habeas application was filed in 2016, Robert’s

lawyers demonstrated that the State’s outdated trial causation theory had been

discredited by contemporary scientific understanding, but they had not yet obtained

the crucial evidence and highly sophisticated expert evaluations required to identify

the specific cause of Nikki’s tragic natural death. That causation theory, then known

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as “Shaken Baby Syndrome” (SBS) and later renamed “Abusive Head Trauma”

(AHT), has since been entirely exposed as devoid of any scientific underpinnings.

Three new reports from highly qualified experts with different medical

specialties can now explain precisely how Nikki died.

Dr. Francis Green, an expert in lung pathology with decades of experience,

examined Nikki’s lung tissue microscopically and identified both chronic interstitial

viral pneumonia and acute bacterial bronchopneumonia, a double infection that took

weeks or longer to develop and was so severe that it resulted in sepsis. Nikki’s

pneumonia thickened the cellular walls of her lungs, greatly inhibiting her ability to

take in sufficient oxygen, causing Nikki’s oxygen-starved brain to swell and die.

Dr. Keenan Bora, a medical toxicologist, analyzed Nikki’s post-mortem

toxicology results and has now concluded that Nikki had in her system dangerously

high levels of promethazine, prescribed to her on two consecutive days by two

different doctors, along with codeine. These drugs are no longer prescribed to

children Nikki’s age and in her condition because of the risk of suppressing

respiration and causing death.

Additionally, Dr. Julie Mack, a pediatric radiologist, analyzed the CAT scans

taken of Nikki’s head soon after her collapse and arrival in the emergency room. The

CAT scans show Nikki had only a single minor impact site on her head that was

consistent with her father’s report that she had fallen out of bed a few hours before

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her medical collapse. The evidence of only one minor impact site, as captured in the

initial CAT scans, rebuts the medical examiner’s testimony at trial and in the

previous habeas proceeding that Nikki had sustained multiple impacts to her head.

The pediatric radiologist also evaluated a series of chest x-rays taken during Nikki’s

hospitalization, some of which were only produced to Robert’s counsel in 2024, and

found a lung condition consistent with the infection identified by lung pathologist,

Dr. Green.

These correlated opinions were only possible because new evidence emerged

over the course of Robert’s previous (-03) habeas proceeding. For instance:

• the CAT scans of Nikki’s head were unavailable because they were locked up

in a courthouse closet until August 2018, unbeknownst to Robert’s counsel;

this evidence is central to refuting the medical examiner’s erroneous belief

that Nikki had sustained multiple impacts to her head;

• despite due diligence, habeas counsel encountered significant obstacles in

obtaining access to key autopsy slides, medical imaging, and other medical

evidence essential to ascertaining the true causes of Nikki’s death; and

• it took both time and resources to identify, retain, and develop opinions from

a range of doctors with highly specialized experience so that the complex

cause of Nikki’s death could be fully explained.

The new claims raised in the Application, based on robust evidence, including,

but not limited to, the new expert opinions identified above, are:

1. New Evidence Establishes That The Conviction Was Obtained

Using Material, False Testimony

2. New Medical and Scientific Evidence Establishes a Right to

Relief under Article 11.073