Roberson v. Stephens

ROBERT LESLIE ROBERSON, III, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENTOF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

No. 14-70033

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 27, 2015

Appeal from the United States District Court for the Eastern District of Texas

USDC No. 2:09-CV-327

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:^*

Petitioner-Appellant Robert Leslie Roberson, III, seeks a certificate of appealability from this court to appeal the district court's denial of his petition for a writ of habeas corpus. Because we conclude that reasonable jurists would not debate the correctness of the district court's disposition of Issues One and Two, we DENY Roberson's application for a certificate of appealability as tothose issues. We conclude that reasonable jurists would debate the correctness of the district court's disposition of Issue Three, and we GRANT Roberson's application as to that issue.

I.

On January 31, 2002, Nikki Curtis was brought into the emergency room in Palestine, Texas. She was not breathing and had a blue color to her skin. Despite the efforts of the medical providers in Palestine and, later, in Dallas, Nikki succumbed to her injuries and passed away later that day. She was two years old.

Nikki was the daughter of the Petitioner-Appellant, Robert Roberson. After a custody battle, Nikki had come to live with Roberson and his girlfriend, Teddie Cox. Cox's daughter, Rachel, also lived with them. The week of Nikki's death, Cox was admitted to the hospital for a hysterectomy and had to stay overnight. Nikki's maternal grandparents, the Bowmans, babysat Nikki while Cox was in the hospital, as Cox did not want to leave Nikki alone with Roberson. On January 30, however, Mrs. Bowman became ill, and she asked to have Roberson come pick up Nikki. Cox testified that Roberson was mad that he had to go get Nikki, but eventually did so.

The next morning, Cox called Roberson to tell him that she had been discharged from the hospital and to ask him to pick her up. Roberson told Cox over the phone that he thought he needed to come to the hospital anyway, as Nikki was not breathing. Cox implored him to take Nikki to the hospital immediately.

When Roberson arrived, Cox, who was in a wheelchair, took Nikki in her lap and they went to the emergency room. The nurses in the emergency room immediately began lifesaving measures. It quickly became apparent to medical staff by the nature of Nikki's injuries that something was amiss, and they called the police. A nurse specializing in sexual assault examinations,Andrea Sims, examined Nikki and noted injuries consistent with sexual assault, namely three tears on Nikki's anus and abnormal rectal laxity. The CT scan performed at the hospital showed severe trauma to Nikki's brain, and her doctors concluded that she needed to be transported to Children's Medical Center in Dallas for further care. Nikki passed away in Dallas.

Roberson was indicted for capital murder on April 25, 2002. Roberson was charged with two manner and means of committing the offense of capital murder: murder committed during the course of committing or attempting to commit aggravated sexual assault and murder of a child under the age of six years.¹ The Texas Court of Criminal Appeals summarized the testimony at trial in its opinion on direct appeal:

The State called twelve witnesses during its case-in-chief. Among them was Kelly Gurganus, a registered nurse, who testified that she was working in the emergency room of the Palestine Regional Medical Center when [Roberson] came in, pushing a wheelchair in which sat his girlfriend Teddie Cox. Gurganus said Teddie was holding something in her lap, covered in a blanket or coat of some sort. Teddie told Gurganus, "She's not breathing," at which point Gurganus removed the covering and saw Nikki Curtis lying in Teddie's lap, limp and blue. Gurganus described Nikki as being like a rag doll, and said that in her five years of nursing she had never seen anyone appear that shade of blue, not even a drowning victim. Gurganus immediately took Nikki to a trauma room and called a doctor.

Gurganus further testified that when she laid Nikki down on the bed in the trauma room, she saw bruising on Nikki's body, including on her head. She said that she then spoke with [Roberson] and asked him what happened, and that he told her that Nikki's injuries were the result of falling off of the bed. She said she immediately became suspicious because that story seemed implausible in light of the severity of Nikki's injuries. She instructed the director of nurses to call the police.

Gurganus spoke again with [Roberson] and said that he appeared nervous and anxious. She also said that he never once asked her about Nikki's condition, and that he was not crying. She said that she attempted to speak with Nikki's maternal grandparents, who had also come to the hospital, but that [Roberson] prevented her from doing so. That was the extent of her conversation with [Roberson], except that he did approach her at some point later to say he loved his daughter and that he would never mean to hurt her. The State also called Robbin Odem, the chief nursing officer at Palestine Regional Medical Center, who testified to her own observations of Nikki's extensive head injuries, as well as her similar interaction with, and impression of, [Roberson] in the emergency room that night.

Roberson v. State, No. AP-74671, 2002 WL 34217382, at *1 (Tex. Crim. App. June 20, 2007) (unpublished). Next, the state called Andrea Sims, who testified in detail as to the results of her sexual assault examination and her conclusion that Nikki was likely sexually assaulted. The state then called Brian Wharton, one of the police officers who investigated Nikki's death. Wharton testified that Roberson told him that Nikki had hurt herself by falling out of the bed. Wharton searched Roberson's house with Roberson present and recovered a bloody wash rag and found blood on a pillow. Other than those two items, Wharton testified that they found no evidence indicating a violent struggle. The state's case continued with the testimony of one of Nikki's physicians:

Dr. John Ross, the pediatrician who examined Nikki the day she died, testified that she had bruising on her chin, as well as along her left cheek and jaw. Dr. Ross said she also had a large subdural hematoma, which he described as "bleeding outside the brain, but inside the skull." He said there was edema on the brain tissue, and that her brain had actually shifted from the right side to the left. He said that, in his opinion, Nikki's injuries were not accidental but instead intentionally inflicted.

Dr. Thomas Konjoyan, the emergency room physician who treated Nikki the day she died, also testified that she had bruising on the left side of her jaw, and that she had uncal herniation, which is "essentially a precursor to brain death." Dr. Konjoyan said thatthe severity of the swelling in Nikki's brain necessitated her transfer to the Children's Medical Center in Dallas for pediatric neurosurgical services. He said that, in his opinion, it would be "basically impossible" for such an injury to have resulted from a fall out of bed. Dr. Jill Urban, a forensic pathologist for Dallas County, testified for the State that she performed the autopsy on Nikki and concluded that Nikki died as a result of "blunt force head injuries."

The jury also heard from Courtney Berryhill, Teddie Cox's eleven-year-old niece, who testified that sometimes she spent the night at the home where [Roberson] lived with Teddie, Nikki, and Teddie's ten-year-old daughter Rachel Cox. Courtney said that she once witnessed [Roberson] shake Nikki by the arms in an attempt to make her stop crying. Rachel Cox then testified that [Roberson] had a "bad temper," and that she had witnessed him shake and spank Nikki when she was crying. Rachel said she had seen this happen about ten times. She also recalled a time that [Roberson] threatened to kill Nikki.

Id. at *2. Dr. Janet Squires, a pediatrician who treated Nikki at Children's Medical Center in Dallas, also testified for the state. Dr. Squires testified that the act that caused Nikki's injuries was a "very violent forceful act," an act "that any reasonable person would realize is not normal," and that Nikki was the victim of "non-accidental inflicted trauma." Dr. Squires, who was also the primary physician with Children's Medical Center's child abuse unit, testified that she observed only one small laceration on Nikki's anus and that rectal laxity means very little in a totally comatose child. As such, Dr. Squires testified that she was not prepared to conclude one way or the other whether Nikki had been sexually abused. The state then called Teddie Cox:

Teddie said that, although Nikki was not her biological child, she loved Nikki as her own. At the time she moved in with [Roberson], Nikki was living with her maternal grandparents, the Bowmans. Teddie said that [Roberson] had no interest in gaining custody of Nikki but did so only because Teddie wanted to care for Nikki, and so she—along with [Roberson]'s mother—prodded [Roberson] to seek custody of Nikki. They did, and Nikki came to live in their home in November of 2001. Teddie said that, although she andRachel were both very close with Nikki, [Roberson] was not, nor did he seem to care about her. She said that Nikki did not like to be around [Roberson] and would cry every time he tried to pick her up or play with her.

Teddie testified that [Roberson] had a bad temper, and that he would yell at Nikki when she cried, which apparently happened every time he approached her. Teddie said she once heard [Roberson] yell at Nikki: "If you don't shut up I'm going to beat your ass." She also said that [Roberson] would hit Nikki with his hand and also once with a paddle. She said that on that occasion she told [Roberson] that he should not do

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