Nearly a year after Robert Roberson’s last stay of execution, his attorneys are using another death row inmate’s case as grounds to again press a Texas judge for an evidentiary hearing.
In court documents obtained by The Dallas Morning News, Roberson’s lead attorney Gretchen Sween asked Smith County District Judge Austin Reeves Jackson to schedule a date “as soon as possible.” Sween cited the Texas Court of Criminal Appeals decision late last month in the case of Melissa Lucio, arguing it makes the need for live testimony and further fact-finding especially urgent.
The state’s highest criminal court rejected Lucio’s bid for relief on Sept. 24—nearly 2 years after the trial judge declared her “actually innocent” and recommended her conviction be overturned. The appellate court’s decision repeatedly noted Lucio had not presented witnesses in a live evidentiary hearing after her case was sent back for further factual development.
Unlike a routine hearing, an evidentiary hearing allows both sides to present evidence and question witnesses in front of a judge who decides whether further legal action is warranted.
“The case of Melissa Lucio strongly shows that a failure to hold a robust evidentiary hearing will be construed as a basis for rejecting any affirmative recommendation this Court might make,” Sween wrote.
Sween wrote in the motion that the ruling has implications for Roberson because his case also was sent back to trial court for further fact-finding after his Oct. 17, 2025, execution came to a halt.
Beyond 2 status conferences between the judge and attorneys, the court has yet to hear a word on the case.
Roberson, 59, was convicted in 2003 of killing his 2-year-old daughter, Nikki. His prosecution relied in part on proving Nikki showed symptoms of “shaken baby syndrome,” (SBS) a medical determination that has since been widely scrutinized by experts.
Over the past decade, the dispute over the theory’s validity has delayed 3 execution dates for Roberson, including 1 in 2016 and another in 2024.
After the stay in 2016, Roberson’s legal team, which has long sought to present evidence it says will prove Nikki died of accidental and natural causes, secured an evidentiary hearing. They didn’t make their way to court until 2021, and an Anderson County judge declared it wasn’t enough to change Roberson’s fate.
When Roberson was granted his stay in 2025, the Texas Court of Criminal Appeals sent his case back to district court in light of a ruling made nearly 2 years ago in a similar case out of Dallas County. In that case, Andrew Roark's conviction was vacated because the science of shaken baby syndrome had evolved, meaning expert witnesses would have given different testimony had he gone to trial in 2024.
Months of back and forth between the state and defense ensued. Prosecutors have argued that the appeals court, in its stay, did not specify an evidentiary hearing was required to assess the unresolved facts, while Sween has said the court “presupposed" an evidentiary hearing is expected.
In one concurring opinion, criminal appeals court Judge Bert Richardson said because Roberson has not been given a chance to challenge his conviction under the court's new understanding of the shaken baby theory, it was correct to allow Roberson to “develop his claims in an evidentiary hearing."
The attorneys last met for a status conference in April, agreeing to brief the similarities and differences between Roberson’s case and Roark’s. Those briefs were submitted in June and July, according to Monday’s motion.
Now, Sween wants the court to move ahead with setting dates.
Due to the volume of witnesses involved, Sween said an evidentiary hearing could take months to organize, schedule, and complete. Afterward, the court would also need to prepare a record, consider proposed findings, and issue its own recommendation before the case could return to the Court of Criminal Appeals.
Sween is suggesting the court limit the new hearing to changes since the last evidentiary hearing in 2021, including developments in scientific understanding, Nikki’s condition during her final medical crisis and autopsy, and the reliability of state witnesses. She also asked the judge to hold a status conference, either in person or by Zoom, to establish the hearing’s dates and parameters.
If the judge remains uncertain of what the Court of Criminal Appeals expected when it sent Roberson’s case back for further development, Sween asked that the question of whether to proceed with the hearing be formally sent back to the appeals court for clarification.
It is, Sween wrote, “the gravity this case deserves.”
Source: dallasnews.com, Jamie Landers, Elissa Jorgensen, Sally Avila Edwards, October 5, 2026
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but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde
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