Texas appeals court reverses judge's order to delay execution in shaken-baby case, last appeal filed

Texas lawmakers meet with Robert Roberson at a prison in Livingston, Texas, Sept. 27, 2024. (Criminal Justice Reform Caucus via AP, File)

HUNTSVILLE, Texas -

A Texas appeals court lifted a judge's order that had delayed Thursday night's planned execution of a man who would become the first person in the U.S. put to death for a murder conviction tied to a diagnosis of shaken baby syndrome.

The reversal left supporters of Robert Roberson, who was convicted of killing his two-year-old daughter in 2002, turning to the Texas Supreme Court in what appeared to be a final bid for a last-minute stay. Robertson's supporters include a coalition of Republicans and Democrats who say Roberson is innocent and was convicted on faulty scientific evidence.

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Hours after the original execution time of 6 p.m. local time had passed in Texas, Roberson remained in a prison holding cell a few feet from the death chamber at the Walls Unit in Hunstville.

Gov. Greg Abbott has authority to delay Roberson's punishment for 30 days. Abbott has halted only one imminent execution in nearly a decade as governor and has not spoken publicly about the case.

The Texas appeals court ruling was one of a flurry of legal decisions in the hours before Roberson's scheduled lethal injection.

At the same time a state judge in Austin was issuing a temporary restraining order, the U.S. Supreme Court refused to halt the execution, although Justice Sonia Sotomayor -- in a 10-page statement about the case -- urged Abbott to grant a 30-day delay.

The state's legal fight to get the execution carried out faced a midnight CDT deadline when the death warrant authorizing Roberson's execution would expire. It was likely, however, the case would need to be resolved well before that since officials must conduct procedures such as attaching intravenous needles and allow time for an injection to take effect and a physician to pronounce him dead.

Earlier Thursday evening, a judge in Austin had paused the execution after Texas lawmakers issued a subpoena for Roberson to testify in front of them next week in a last-ditch effort to pause the execution.

"This is an extraordinary remedy the Legislature is seeking. But it is not undue. The Legislature is allowed this constitutional authority," state Rep. Jeff Leach, a Republican and member of the Texas House Criminal Jurisprudence Committee, said during the Zoom court hearing.

Texas state representatives Lacey Hull, left, and John Bucy III, speak to reporters on the pending execution of Robert Roberson during an impromptu press conference outside of the Huntsville Unit of the Texas State Penitentiary, Thursday, Oct. 17, 2024, in Huntsville, Texas. (AP Photo/Michael Wyke)

Roberson, 57, was convicted of killing of his daughter, Nikki Curtis, in the East Texas city of Palestine. Roberson has long proclaimed his innocence, backed by some notable Republican lawmakers, Texas GOP megadonor and conservative activist Doug Deason and the lead detective on the case. Roberson's lawyers and some medical experts say his daughter died not from abuse but from complications related to pneumonia.

"He's an innocent man and we're very close to killing him for something he did not do," said Brian Wharton, the lead detective with Palestine police who investigated Curtis' death.

Lawyers ask Texas governor and Supreme Court to intervene

Roberson's lawyers waited to see if Abbott would grant Roberson a one-time 30-day reprieve. It's the only action Abbott can take in the case as the Texas Board of Pardons and Paroles on Wednesday denied Roberson's clemency petition.

The board voted unanimously, 6-0, to not recommend that Roberson's death sentence be commuted to life in prison or that his execution be delayed. All board members are appointed by the governor. The parole board has recommended clemency in a death row case only six times since the state resumed executions in 1982.

In his nearly 10 years as governor, Abbott has halted only one imminent execution, when he spared the life of Thomas Whitaker in 2018.

"We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man," Gretchen Sween, one of Roberson's attorneys, said in a statement.

A spokesperson for Abbott did not immediately reply to an email seeking comment.

Bipartisan committee takes extraordinary step to try to stop execution

The Texas committee on Wednesday held an all-day meeting on Roberson's case. In a surprise move at the end of the hearing, the committee issued a subpoena for Roberson to testify next week.

During its meeting in Austin, the committee heard testimony about Roberson's case and whether a 2013 law created to allow people in prison to challenge their convictions based on new scientific evidence was ignored in Roberson's case.

Anderson County District Attorney Allyson Mitchell, whose office prosecuted Roberson, told the committee a court hearing was held in 2022 in which Roberson's attorneys presented their new evidence to a judge, who rejected their claims.

"Based on the totality of the evidence, a murder took place here. Mr. Roberson took the life of his almost three-year-old daughter," Mitchell said.

Most of the members of the committee are part of a bipartisan group of more than 80 state lawmakers, including at least 30 Republicans, who had asked the parole board and Abbott to stop the execution.

Casandra Rivera, left, Anna Vasquez, second from left, and Elizabeth Ramirez, center, of the "San Antonio 4" group, hold boxes with petitions being delivered in the Texas State capitol for Texas Gov. Greg Abbott seeking the pardoning of Robert Roberson's execution, Wednesday, Oct. 16, 2024 in Austin, Texas. Roberson, 57, is scheduled to receive a lethal injection on Oct. 17, for the 2002 killing of his 2-year-old daughter, Nikki Curtis, in the East Texas city of Palestine. Roberson has long proclaimed his innocence. (AP Photo/Nadia Lathan)

Execution puts spotlight on shaken baby syndrome

Roberson's case has renewed debate over shaken baby syndrome, known in the medical community as abusive head trauma.

His lawyers as well as the Texas lawmakers, medical experts and others including bestselling author John Grisham say his conviction was based on faulty and now outdated scientific evidence. The diagnosis refers to a serious brain injury caused when a child's head is hurt through shaking or some other violent impact, like being slammed against a wall or thrown on the floor.

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Roberson's supporters don't deny head and other injuries from child abuse are real. But they say doctors misdiagnosed Curtis' injuries as being related to shaken baby syndrome and that new evidence has shown the girl died from complications related to severe pneumonia.

Roberson's attorneys say his daughter had fallen out of bed in Roberson's home after being seriously ill for a week.

Roberson's lawyers also suggested his autism, then undiagnosed at the time of his daughter's death, was used against him as authorities became suspicious of him because of his lack of emotion over her death. Autism affects how people communicate and interact with others.

The American Academy of Pediatrics, other medical organizations and prosecutors say the diagnosis of shaken baby syndrome is valid and doctors look at all possible things, including any illnesses, when determining if injuries were attributable to it.

Roberson's scheduled execution would come less than a month after Missouri put to death Marcellus Williams amid lingering questions about his guilt and whether his death sentence should have instead been commuted to life in prison.

Roberson's execution was scheduled the same day Alabama executed Derrick Dearman, condemned for killing five people with an ax and gun during a 2016 drug-fueled rampage.