I haven't straightened out all the format changes, yet, but it is very readable. I first read this, Nov 6, 2024
October 24, 2024
Via E-Filing
Mr. Blake Hawthorne, Clerk
Supreme Court of Texas
Re: No. 24-0884,
In re Texas House of Representatives
Dear Mr. Hawthorne:
Representative Cody Harris and Cecil Bell, Jr., Greg Bonnen,
Briscoe Cain, Mark Dorazio, Cole Hefner, Tom Oliverson, M.D., and Tony
Tinderholt, other Members of the Texas House of Representatives
respectfully submit this letter brief as amici curiae in support of the
Texas Department of Criminal Justice.1
In last week’s frantic run-up to the lawful execution of a convicted
baby-killer called Robert Roberson, the House Committee on Criminal
Jurisprudence attempted to use its subpoena-and-hearing authority to
usurp the Governor’s clemency power. Contra TEX. CONST. art. IV, § 11(b)
(“The Governor shall have the power to grant one reprieve in any capital
case for a period not to exceed thirty (30) days . . . .” (emphasis added)).
The House Committee has continued to use its hearing authority in the
days since, attempting to wield the judiciary’s power to re-determine
facts and evidence about a capital murder—despite decades of state- and
federal-court judges having rejected Roberson’s claims.
And now, in this
unprecedented case, a single Committee purports to litigate on behalf of
the “Texas House of Representatives.”
At practically every turn, a single
committee of a single chamber of a single branch of government has
encroached not only on the prerogatives of two other branches, but also
on those of their colleagues in the same branch.
1) No fee was paid or will be paid for preparing this brief. See TEX. R. APP. P. 11(c).
2
And the results have been messy.
This past week, the House
Committee held a one-sided re-trial of Roberson’s criminal case, twenty-one years after he was convicted by an Anderson County jury.2
As can
happen in a legislative committee hearing, as opposed to an actual court
of law, witnesses and committee members alike presented only one side
of the story. Indeed, the substantial evidence of Robertson’s guilt was
not even presented.
The House Committee’s hearings lacked “the adversarial process on
which our legal system depends.” In re Abbott, 628 S.W.3d 288, 298 (Tex.
2021).
Had the House Committee followed the adversarial process that is
intrinsic to our judicial system, it would have revealed to Members—and
to the People of Texas—these deeply troubling facts:
• Roberson, the only adult known to be with Nikki in the
hours before she took a brutal beating that proved fatal,
brought his two-year-old daughter to the hospital with
multiple “external” bruises;
• Roberson was not some “sweet, impaired man,” but a bully
with a long history of violence that included punching his
pregnant ex-wife for walking too slowly, beating an unborn
child still in that woman’s womb, and molesting a nine year-old girl;
• the prosecution’s theory at trial was not that Roberson
shook Nikki, but that he “beat” her to death; and
• though he now claims that Nikki succumbed to pneumonia,
Roberson has offered at least five theories of how she died
that are mutually inconsistent.
2 See House Committee on Criminal Jurisprudence, Hearing Testimony, 88th Leg.
(Oct. 21, 2024), https://house.texas.gov/videos/20863 [October 21 Hearing Testimony];
see also House Committee on Criminal Jurisprudence, Hearing Testimony, 88th Leg.
(Oct. 16, 2024), https://house.texas.gov/videos/20862 [October 16 Hearing Testimony].
Over the past two decades, Roberson has given various audiences
at least five different whodunnit narratives:
(1) Roberson told hospital staff and investigators that Nikki was
just a clumsy kid who fell out of bed and plummeted to her
death—from a height of just 22 inches.
(2) Roberson told his girlfriend that he might have “snapped” and
killed Nikki, but he just can’t remember.
(3) While awaiting trial, Roberson told a cellmate that he’d “put his dick in the baby’s mouth” before hitting her on the skull,
dropping the child on her head, and leaving her on the floor.
(4) In a 2008 letter from death row, Roberson agreed that Nikki was
beaten to death—but pointed the finger at Heather Berryhill, a
woman with whom he was smoking crack and having sex.
(5) Now, Roberson says Nikki died because she was a sickly child
with a bad case of pneumonia.
The only consistency here is Roberson’s mendacity.
Given the one-sided
nature of the hearing, it is not surprising the House Committee chose to
believe only Robertson’s latest theory—no questions asked.
Some
Members even claim Roberson was “framed.”3
By the floor? By Heather?
By pneumonia?
Because relators’ pleadings attempt this approach on behalf of the
entire “House of Representatives,” it is imperative for other Members—
in whose name this suit is nominally brought—to tell the story the House
Committee failed to tell.
In 2002, Roberson sauntered into the hospital with his two-year-old
daughter, who was blue and unresponsive.4 Upon arrival, the little girl 3
3 October 21 Hearing Testimony at 8:26:54–8:27:03.
4 42 RR 183:12–186:15. 4
had extensive bruising to her chin, face, ears, eyes, shoulder, and mouth,
and the back of her skull was “mushy.” 5
Roberson was the only adult with
Nikki in the hours beforehand. The State indicted him for capital murder.
Initially, after bringing his bruised, bloody, and unconscious child
to the hospital, Roberson claimed she simply died from a 22-inch fall out
of bed because she was “a clumsy child.” 6
But an autopsy concluded Nikki
died from “blunt force head injuries”—not from mere shaking. 7
The jury
agreed. On February 11, 2003, after being instructed on the prosecution’s
theory that Roberson killed Nikki “by causing blunt force head injuries,”
the jury unanimously found him “ ‘Guilty’ of the offense of capital
murder.”8
It rejected Roberson’s theory, crediting instead the evidence
that pointed to external blows—not shaking or a short fall.9
Almost immediately, Roberson’s story changed.
While in pre-trial
custody, for example, Roberson confided to his live-in girlfriend, Teddie
Cox, that he may have “snapped” and killed the girl.
Cox relayed a
conversation in which she asked Roberson point-blank: “Did you kill
Nikki?” He told her that “if he did do it, he don’t remember, that he
snapped, and he don’t remember doing it.”10
That was not the only
evidence of Roberson’s violence. The jury heard testimony from
Roberson’s ex-wife, Della, that he choked her with “a coat hanger,”
=====
5 41 RR 115:21–23, 116:1–4, 117:5–18 (Sims); 42 RR 82:20–83:13 (Konjoyan); Ex parte
Roberson, Nos. WR-63,081-03 & -04, at 2–3 (Tex. Crim. App. Oct. 10, 2024) (Yeary,
J., concurring); 2022 Findings of Fact ¶¶ 21, 24, 26, 33, 35, 36, 37, 40, 41; 5 CR 660.
Contra October 21 Hearing Testimony at 8:20:35–8:20:43 (Roberson’s lawyer claiming
“there is no mushy skull”); October 16 Hearing Testimony at 4:11:37–4:11:43 (Dr.
Auer saying the child was “entitled to have a goose egg”).
6 41 RR 170:21 (Wharton); 41 RR 66:19–67:24, 69:13–23, 70:18–21 (Gurganus); 41 RR
86:22–23, 95:21–25 (Odem); 42 RR 82:7 (Konjoyan); 50 RR, State’s Exh. 37
(Roberson’s signed statement to police); 5 CR 669 (Wharton’s police report).
7 51 RR, State’s Exh. 48.
8 5 CR 613–625.
9 41 RR 69:22–23 (Gurganus); 41 RR 89:19–21 (Odem); 41 RR 123:18–20 (Sims);
41 RR 176:10–14, 177:6 (Wharton); 42 RR 85:14–15 (Konjoyan).
10 42 RR 190:11–25; see also 41 RR 55:7–10; 46 RR 25:8–11; 5 CR 670.
5
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forcing her to “fight for her life”;11 punched her while she was pregnant
because she “wasn’t walking fast enough for him”;12 and hit both her and
her unborn baby, Victoria.13
This is the “sweet, impaired man” who,
according to his lawyer’s legislative testimony, has “no history of violent
assaults” and poses “zero” security risks?14
While in pre-trial custody, Roberson painted an even more damning
picture of Nikki’s vicious death.
In 2002, the Anderson County District
Attorney’s Office received a letter saying that Roberson confided to his
cellmate that he had sexually assaulted and beat Nikki to death.
First,
Roberson “put his dick in the baby’s mouth and rubbed his penis
against her vagina.”15
Then he “hit Nikki on the back of her head with
his hand” and “dropped her on her head,” “leaving her on the floor.”16
The evidence indicates that sexually abusing children was hardly
unusual for Roberson.
On another occasion, one month before he killed
Nikki, Roberson climbed into bed with his girlfriend’s nine-year-old
daughter, “slipped his hand down to her panties,” and “touched her
breast and vagina[].”17
While the testimony before the House Committee
would have us believe “there’s not a record of violence, child abuse, any
of that” for Roberson, such a conclusion simply ignores a panoply of facts
and evidence.18
After a jury convicted him of killing his daughter via blunt force
head injuries, Roberson tried shifting the blame to his girlfriend’s sister,
Heather Berryhill, claiming she threw Nikki on the ground after the two
had smoked crack and had sex in front of the child.
In 2008, Roberson
wrote to a prison website seeking a fellow death-row pen-pal. In the
======
11 47 RR 15:11–24.
12 47 RR 16:2–12.
13 47 RR 18:13–25; see also 42 RR 171:3–172:11.
14 October 16 Testimony at 6:57:23–6:57:26; October 21 Hearing Testimony at 7:55:55–
7:56:10, 8:46:13–8:46:26.
15 5 CR 687 (Lodygowski).
16 Id.
17 5 CR 677 (T. Cox), 679 (R. Cox).
18 October 21 Hearing Testimony at 8:08:56–8:09:10 (Roberson’s lawyer).
6
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letter, he admitted that he “lied to the nurses and doctors” about the
alleged 22-inch fall out of bed.19 And he described January 30, 2002, as a
crack-fueled night in which he awoke to see “Heather shaking Nikki back
and forth, from front to back.”20
Heather—not Roberson, of course, but
his crack-smoking paramour—then threw the girl so forcefully that
“Nikki bounced off the floor, hitting the floor hard.”21
Roberson, on his
own telling, never even checked on her.
Later that night, Heather again
picked Nikki up and “started shaking her some more.”22
Roberson still
could not be bothered to check on the girl. Instead, he “laid down and
dozed off” and then (for some reason) covered up for Heather.23
In 2016, on the eve of his scheduled execution, Roberson sought and
obtained a stay of execution to review his conviction and sentence under
Texas’s newly amended junk-science law, codified at Article 11.073 of the
Texas Code of Criminal Procedure.
This time, he claimed Nikki had
suffered from an extreme case of pneumonia that somehow caused her
brain to shift inside her skull and compress her spinal cord.24
The Texas
Court of Criminal Appeals (CCA) remanded Roberson’s habeas petition
to the Anderson County District Court,25 giving him the opportunity to
develop evidence in support of this new theory that pneumonia was the
real killer.
In 2021, shortly before his evidentiary hearing began on remand,
Roberson’s 2008 story of a crack-and-sex-filled night was conspicuously
removed from Lamp of Hope’s website.
During a seven-day evidentiary
hearing, the District Court carefully considered Roberson’s arguments,
======
19 Robert Roberson, PenPal Request, Lamp of Hope (July 24, 2008), https://web.arch
ive.org/web/20080724175922fw_/http://www.lampofhope.org/wp999442.html.
20 Id.
21 Id.
22 Id.
23 Id.
24 42 RR 102:20–23 (Squires); 43 RR 83–84 (Urban).
25 Ex parte Roberson, No. WR-63,081-03 (Tex. Crim. App. June 16, 2016) (per curiam).
7
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rejected all of them, and reaffirmed that he beat his daughter to death.
Among other detailed findings,26 the District Court found that:
• “No one testified in the original trial that Nikki was killed by
shaking alone.”27
• Because there was impact, the “question of SBS (shaken baby
syndrome) is kind of moot.”28
• Abusive head trauma, as distinguished from mere shaking, is still
a recognized medical diagnosis.29
• And Roberson’s pneumonia theory, even after a full and fair
exploration, did nothing to change the evidence that Nikki had
been brutally beaten.30
In January 2023—a full 22 months before the House Committee’s
hearing—the CCA reviewed the record. It agreed that the record
supports the District Court’s findings of fact and adopted them in full.
Based on those findings and its own independent review, the CCA denied
habeas relief on Roberson’s claims.31
In short, Roberson has peddled no fewer than five different theories
of what happened to Nikki.
Courts and a Texas jury have rightly rejected
all of them. Now, some have claimed in legislative testimony that
Roberson’s conviction rests solely on “shaken baby syndrome.”
That
argument is not new. And it is not right.
The prosecutor’s closing argument expressly reiterated to the jury
that its theory was not that Nikki was shaken, “but was beaten about the
head.”32
In his closing to the jury, the prosecutor addressed this very
======
26 See, e.g., Ex parte Roberson, No. 26162-A, Findings of Fact at ¶¶ 21, 24, 26, 33, 35,
36, 37, 40, 41 (3rd Judicial Dist. Ct. Feb. 14, 2022).
27 Id. at ¶ 11; see also id. at ¶¶ 20, 28, 58.
28 Id. at ¶ 16.
29 Id. at ¶ 45; see also id. at ¶¶ 9, 14, 15.
30 Id. at ¶¶ 40, 50, 51, 107.
31 Ex parte Roberson, No. WR-63,081-03 (Tex. Crim. App. Jan. 11, 2023) (per curiam).
32 46 RR 25:13–23 (emphasis added).
8
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argument,33 twenty-one years before Roberson sold it to the House
Committee:
Consistent with these arguments in closing, the evidence at trial
repeatedly described “external” injuries caused by “impact” from being
“struck” with objects or forcible “blows.”34
During its second legislative hearing, some House Committee
Members and witnesses repeatedly suggested that anyone who says
Roberson’s case was not a shaken-baby case “has not read any of the
record” or is “intentionally deceiving.”35
Have those proponents of this
======
33 46 RR 61:4–16.
34 See, e.g., 41 RR 117:16–21, 123:15–25 (Sims); 42 RR 103:10–19 (Squires); 43 RR
54–55 (Urban). Contra October 21 Hearing Testimony at 1:58:43–1:59:31 (Dr. Phil
claiming “a careful analysis of the trial record” suggests there was no evidence of
“battery” or that the child had been “beaten”); id. at 2:41:50 –2:42:14 (juror claiming
they “heard nothing about Nikki being beaten”); id. at 7:57:20–7:57:36 (Roberson’s
lawyer claiming there were no “exterior signs of abuse” and “everything is internal”).
35 October 21 Hearing Testimony at 7:56:15–7:56:45 (Roberson’s lawyer).
9
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theory read the same record?
Equally concerning is the House
Committee’s motive for a last-minute attempt to unwind our State’s
constitutional order.
More than 100 votes of state- and federal-court
judges have reaffirmed Roberson’s conviction and sentence at every turn.
This case may be captioned In re Texas House of Representatives.
But those waging this campaign on a child-murderer’s behalf do not
speak for the full Texas House of Representatives. And certainly not for
the amici Members listed below.
CODY HARRIS CECIL BELL, JR.
House District 8 House District 3
GREG BONNEN BRISCOE CAIN
House District 24 House District 128
MARK DORAZIO COLE HEFNER
House District 122 House District 5
TOM OLIVERSON, M.D. TONY TINDERHOLT
House District 130 House District 94
Respectfully submitted.
_/s/
ARTHUR C. D’ANDREA
Texas Bar No. 24050471
arthur.dandrea@dandreapllc.com
D’Andrea PLLC
2415 20th St. Apt. B
Lubbock, Texas
79411
Counsel for Amici Curiae
House Members
10
CERTIFICATE OF COMPLIANCE
Microsoft Word reports that this document contains 2373 words, excluding the
exempted portions of the document.
/s/
Arthur C. D’Andrea
ARTHUR C. D’ANDREA
Counsel for Amici Curiae House Members
CERTIFICATE OF SERVICE
On October 24, 2024, this document was served electronically on all counsel of
record as follows:
Jeff Leach (jleach@grayreed.com)
Joe Moody (joe.moody@house.texas.gov)
Counsel for Relators
Billy Cole (william.cole@oag.texas.gov)
Counsel for Respondents
/s/ Arthur C. D’Andrea
ARTHUR C. D’ANDREA
Counsel for Amici Curiae House Member