PD-0269-26 FRANKLIN, SHANAY ANNETTE FROM TARRANT COUNTY - 02-25-00036-CR — CONCURRING & DISSENTING OPINION JUDGE FINLEY [ PDF/264 KB ]

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0269-26
SHANAY ANNETTE FRANKLIN, Appellant
v.
THE STATE OF TEXAS
CONCURRENCE AND DISSENT TO REFUSAL OF
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECCOND COURT OF APPEALS
TARRANT COUNTY
Finley, J., filed a concurring and dissenting opinion.
C O N C U R R I N G & D I S S E N T I N G O P I N I O N
In Ex parte Roark, this Court concluded that “scientific knowledge has
evolved regarding [shaken baby syndrome].” 707 S.W.3d 157, 185 (Tex. Crim. App.
2024). In three petitions for discretionary review refused today, each appellant

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challenges the sufficiency of the evidence to support his or her conviction in light of
Roark. See Matthews v. State, No. PD-0001-26; Morales-Gomez v. State, No. PD-0171-
26; Franklin v. State, No. PD-0269-26. I agree with the Court’s decision to refuse
review in each case on each appellant’s sufficiency challenge. I write separately to
highlight why the Court is correct to refuse review and also to discuss how, in my
view, the bench and bar should address “shaken baby syndrome” moving forward.
But I separately dissent from the Court’s refusal of Appellant’s first ground for
review, related to the construction of the felony murder statute.
I. 	Factual Background
a. Trial
Appellant was babysitting fourteen-month-old J.C. when J.C. suffered a fatal
head injury. The State charged Appellant with felony murder predicated on injury to
a child and with intentionally or knowingly causing serious bodily injury to a child.
Both charges alleged the same conduct: causing J.C.’s acceleration and deceleration
with Appellant’s hand or by striking J.C. with or against an object or surface.
Appellant claimed that J.C. fell from the front seat of her car onto the concrete
driveway. But the State’s medical experts testified that J.C.’s injuries resulted from
a high-force acceleration-and-deceleration event and were inconsistent with such a
fall. The jury found Appellant guilty of felony murder. The jury also acquitted her of

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intentional or knowing injury to a child but convicted her of the lesser-included
reckless offense.
b. Appeal
The court of appeals affirmed. Franklin v. State, No. 02-25-00036-CR, 2026
WL 547522, at *8 (Tex. App.—Fort Worth Feb. 26, 2026) (mem. op., not
designated 	for 	publication). 	The 	court 	of 	appeals 	noted 	that 	there 	was 	no
contravening evidence in the appellate record to rebut the State’s evidence. Id. at *3
(“[Appellant] was free to object to the admission of the State’s medical expert
testimony at trial, she was free to offer evidence calling the experts’ testimony into
question, and she was free to cross-examine the experts on the alleged flaws in their
opinions. To the extent that she failed to do so, she cannot now supplement the
record with evidence that she wishes she had offered.”); id. at *4 (“[Appellant] was
free to offer . . . information” about Roark “at her trial.”). The court of appeals then
noted that Appellant “does not dispute that, when [the State’s] expert testimony is
considered, there was sufficient evidence to support her convictions.” Id. at *5.
Consequently, the court of appeals concluded that the evidence was sufficient. Id.
II. 	Applicable Law
When assessing the sufficiency of the evidence to support a criminal
conviction, reviewing courts consider the evidence in the light most favorable to the

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verdict and determine whether, based on the evidence and reasonable inferences
therefrom, a rational juror could have found that the State has proven the essential
elements of the crime beyond a reasonable doubt. Baltimore v. State, 689 S.W.3d 331,
341 (Tex. Crim. App. 2024) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
When drawing inferences, the trier of fact may use common sense, common
knowledge, personal experiences, and observations from life. Acosta v. State, 429
S.W.3d 621, 625 (Tex. Crim. App. 2014). When the record supports conflicting
reasonable inferences, we presume that the trier of fact resolved those conflicts in
favor of the conviction, and we defer to those resolutions. Dunham v. State, 666
S.W.3d 477, 482 (Tex. Crim. App. 2023).
This standard applies whether the case was proven by direct or circumstantial
evidence. Laster v. State, 275 S.W.3d 512, 520–21 (Tex. Crim. App. 2009). This
standard gives full responsibility to the trier of fact to fairly resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from basic to
ultimate facts. Id. at 522. A factfinder may believe all, some, or none of a witness’s
testimony. Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). As the
reviewing court, we do not sit as the metaphorical “thirteenth juror.” See McPherson
v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023). We cannot substitute our
judgment for that of the trier of fact by reevaluating the weight and credibility of the

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evidence. Id. We must affirm the conviction if the inferences necessary to establish
guilt are reasonable based upon the “cumulative force” of all the evidence when
viewed in the light most favorable to the conviction. Wise v. State, 364 S.W.3d 900,
903 (Tex. Crim. App. 2012).
III. 	Sufficiency Discussion
The State’s medical experts did not rely upon shaken baby syndrome at
Appellant’s trial; shaken baby syndrome was introduced only via Appellant during
cross-examination. Moreover, the State’s medical examiner agreed on cross that
shaken baby syndrome was no longer considered a valid medical assessment. But that
concession concerned a theory the prosecution did not advance and did not
contradict the experts’ separate opinions that J.C.’s injuries resulted from high-force
impact 	or 	acceleration-and-deceleration 	trauma 	and 	were 	inconsistent 	with
Appellant’s account of a fall from a stationary vehicle. Moreover, Roark did not hold
that every opinion ruling out a particular short fall amounts to no evidence or
categorically repudiates abusive head trauma testimony. See Roark, 707 S.W.3d at
187–88. Under the applicable Jackson standard, the jury was permitted to credit the
State’s 	expert’s 	testimony 	and 	the 	State’s 	explanation 	for 	J.C.’s 	injuries.
Consequently, the evidence was sufficient to support Appellant’s conviction for the
underlying felony offense.

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IV. 	Shaken Baby Syndrome Moving Forward
a. Recent developments in the law
Roark is by no means a “stand-alone” case when it comes to judicial
recognition of scientific changes in the understanding of shaken baby syndrome.
i. 	In re Moore, — Cal. Rptr. 3d —, No. D086215, 2026 WL 2640657 (Cal.
Ct. App. Sept. 8, 2026).
Jason Harley Moore was charged with one count of assault by means of force
likely to produce great bodily injury on a child resulting in death pursuant to
California Penal Code section 273ab after his infant daughter, Charlotte, sustained
fatal head injuries while in his care. Id. at *1. He was convicted and sentenced to
twenty-five years to life in prison. Id.
At trial, Dr. Mark Massi, the forensic pediatrician that examined Charlotte,
testified Charlotte’s injuries were “[a]bsolutely” inconsistent with a short fall from
a bed and such a fall “would not account for her condition.” Id. at *7. The appellate
court further restated Dr. Massi’s testimony:
[Charlotte’s] injuries were “more consistent with the forces to which
an infant would be subjected in a car crash or a fall from multiple
stories.” He stated the level of force required to cause Charlotte’s
injuries was such that “if there were an observer in the room [when
Charlotte was injured], the observer would have been distressed by the
violence with which these injuries were inflicted.” He further explained
Charlotte’s retinal hemorrhaging was different from hemorrhaging
seen outside of the child abuse context and Charlotte’s hemorrhaging

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was “not characteristic of any other process” besides abuse. Given the
nature of Charlotte’s injuries, he testified “something much more
traumatic [than a fall from the bed] had happened to her.” He twice
stated, “This was a major traumatic event.”
Id. Two other state’s experts testified that a short fall could not have caused the
injuries, stating that “there’s no convincing evidence to me that a child could sustain
a fracture from . . . a fall of that height” and that Charlotte’s injuries were not
“consistent with a three-month-old who allegedly sustained a short fall of 26 inches
or so onto a carpeted surface.” Id.
Moore filed a writ of habeas corpus, claiming (1) “the prosecution’s expert
trial testimony has been undermined by scientific developments since trial and, thus,
the testimony constitutes false evidence,” (2) “the scientific developments have
created a significant dispute in the medical community in Moore’s favor,” and (3)
“the scientific developments constitute new evidence of Moore’s innocence.” Id. at
*1. Upon a review of the trial evidence and the developments in shaken baby
syndrome science, the appellate court concluded that “experts now agree scientific
developments have established a short fall can cause the types of injuries Charlotte
suffered, even if rare.” Id. at *8. Consequently, the appellate court concluded that
the trial testimony of the medical experts, “which was essential to their opinions that
Moore abused Charlotte, was false.” Id.

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ii. 	Georgia v. Smith, Case No. 02-B-2388-6 (Ga. Super. Ct. July 21, 2026)
Danyel Smith was convicted of felony murder and aggravated battery in
connection with the death of his two-month-old son, Chandler, based on a diagnosis
of shaken baby syndrome. The trial evidence showed that on April 29, 2002,
Chandler became unresponsive and “was not breathing.” Smith v. State, 657 S.E.2d
523, 524–25 (Ga. 2008). When Chandler was taken to the hospital, a CT scan of his
brain “revealed a skull fracture, a hematoma, and swelling of the brain.” Id. at 525.
“Based on the CT scan as well as Chandler’s broken wrists, retinal hemorrhages,
and the quick onset of his symptoms, Chandler was diagnosed as a ‘shaken baby,’
who had been subjected to vigorous shaking that was probably coupled with impact.”
Id.
The state’s theory at trial was one of abuse. The prosecutor argued that
“there’s no other explanation that the doctors might look for that would explain
these symptoms, other than non-accidental trauma; that is, child abuse.” The
consulting pediatric neurosurgeon, Dr. William Boydston, who saw Chandler at the
hospital, testified about his diagnosis: “Unless somebody could tell me something
else was going on with this child, guys, I don’t — You know, I think he was a shaken
baby. I’ll be happy if somebody can tell me something else.” Smith was convicted
and sentenced to twenty years’ confinement on each count.

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Smith then filed an extraordinary motion for new trial based on newly
discovered evidence, arguing that the science surrounding the diagnosis of brain
injuries in infants has dramatically evolved since his trial and pointing to a new expert
affidavit ruling out shaken baby syndrome as the cause of Chandler’s death. Smith v.
State, 922 S.E.2d 6, 11 (Ga. 2025). In July of 2026, the Superior Court of Gwinnett
County granted Smith’s extraordinary motion for a new trial. See Order at 14,
available at https://tinyurl.com/3my9btwy (last visited Oct. 7, 2026). The trial court
recognized a “fundamental shift in the diagnostic approach to brain findings in
infants,” from “the prevailing approach” in 2003 that “treated [shaken baby
syndrome] as a presumptive diagnosis” to the “current medical and scientific
standards [which] require a comprehensive differential diagnosis that considers
alternative, non-abusive causes before concluding abuse.” Id. at 8. On the issue of
materiality, 	the 	trial 	court held 	that 	because 	Smith “presented 	a 	coherent,
comprehensive, and medically and scientifically supported alternative explanation
for Chandler’s death, corroborated by five medical specialists,” which would have
supported Smith’s non-abuse theory at trial. Id. at 13. Consequently, because “a
reasonable juror could find [Smith’s] newly discovered expert testimony plausible
and persuasive,” Smith met the materiality requirement for a new trial. Id.

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iii. 	State v. Nieves, 345 A.3d 1127 (N.J. 2025)
In Nieves, the Supreme Court of New Jersey was “asked to determine whether
expert testimony regarding [shaken baby syndrome] is sufficiently reliable to go
before a jury in two separate cases.” Id. at 1132–33. In both cases,
the young children exhibited symptoms that have come to be associated
with 	[shaken 	baby 	syndrome] 	and 	referred 	to 	as 	the 	“triad 	of
symptoms” 	— 	subdural 	hematoma, 	retinal 	hemorrhages, 	and
encephalopathy. In both cases, after the children were examined by
various medical specialists and a series of tests were run, the same
doctor determined that the children were victims of child abuse,
specifically [shaken baby syndrome]. Because the children were in the
care of their fathers when they began to exhibit the above-mentioned
symptoms, both men were charged with criminal offenses, including
aggravated assault and child endangerment.
Id. at 1133. The trial court in each case excluded the state’s proposed shaken baby
syndrome testimony and expert. See id.
Applying the Frye1 standard for the admissibility of expert testimony, the New
Jersey Supreme Court concluded that the state had failed to meet its burden for
admissibility because the state had failed to show “general acceptance within the
biomechanical community regarding whether shaking without impact can produce
the 	‘triad’ 	of 	symptoms 	associated 	with 	[shaken 	baby 	syndrome]: 	subdural
hematomas, multilayered retinal hemorrhages, and encephalopathy.” Id. at 1167.
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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The New Jersey Supreme Court concluded that an expert’s testimony that the “only
explanation” for the “triad” of symptoms “is child abuse” is “unreliable” and
“inadmissible” at trial. Id. at 1172.
iv. 	Other cases
People v. Lemons, 22 N.W.3d 42, 63 (Mich. 2024): Reversing conviction,
finding that the trial court abused its discretion in not admitting the defendant’s
proposed expert testimony in shaken baby syndrome prosecution.
State v. Butts, 2023-Ohio-2670, ¶ 102 (Ohio Ct. App. Aug. 1, 2023): Vacating
convictions in shaken baby syndrome prosecutions, concluding that the medical
community’s understanding of shaken baby syndrome has “clearly changed” since
2003 and the state’s original retinal-hemorrhage testimony “was incorrect and can
no longer be supported by science.”
People v. Ackley, 870 N.W.2d 858, 867 (Mich. 2015): Reversing conviction for
ineffective assistance of counsel when counsel failed to investigate adequately and to
attempt to secure appropriate expert assistance in the preparation and presentation
of the defendant’s defense in a shaken baby syndrome prosecution.
b. What could and should be done
The major theme that comes through the instant petitions for discretionary
review and the other shaken baby syndrome cases listed above is that, in many cases,

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trial counsel failed to meaningfully challenge the State’s shaken baby syndrome
evidence at trial. This creates two readily apparent problems. First, regardless of
Roark, subsequent sufficiency challenges on appeal will always fail so long as there is
some evidence that permits a rational juror, when viewing that evidence in the light
most favorable to the verdict, to find all the necessary elements of the offense. See
Jackson, 443 U.S. at 319. Second, at least for these three appellants—and others
similarly-situated post-Roark—a Code of Criminal Procedure Article 11.073 habeas
claim is almost certainly precluded because Roark and the advances in shaken baby
syndrome are not new science for purposes of Article 11.073. After all, Roark cannot
be “new” if one is prosecuted after Roark was decided. Of course, these appellants
may have recourse in an ineffective-assistance-of-counsel claim, but that is by no
means guaranteed.
Defense attorneys should be wary of letting shaken baby syndrome evidence
go unchallenged at trial. For example, to date, no case that has reached this Court
post-Roark has challenged the admissibility of expert testimony at trial under Rule
702. Compare Nieves, supra at 11. All attorneys have an obligation to stay abreast of
changes in the law, particularly in an evolving area of jurisprudence post-Roark.
Defense attorneys should consider all possible methods of combatting and rebutting
this evidence at trial. Casting a wide net in defense strategies to give reviewing courts

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ample opportunity to consider a case on appeal is a much-preferred approach in
shaken baby syndrome cases than simply adopting a “we’ll win on appeal” gamble.
Proper pre-trial investigation and development of defense expert testimony is
paramount 	to 	effective 	representation 	of 	clients 	in 	shaken 	baby 	syndrome
prosecutions. Without these safeguards, defendants face nearly certain affirmance
on sufficiency review and defense attorneys face potential ineffective-assistance-of-
counsel claims in habeas.
V. 	Felony Murder
With all that said, I turn to Appellant’s first ground for review. This case
presents again a recurring question about this Court’s construction of the felony
murder statute. See Tex. Penal Code § 19.02(b)(3). As I have explained several
times 	before, 	this 	Court’s 	“current 	felony 	murder 	jurisprudence 	appears
unsupported by the plain text of the statute.” Fraser v. State, 726 S.W.3d 253, 274
(Tex. Crim. App. 2025) (Finley, J., dissenting); Posey v. State, 730 S.W.3d 443,
443 (Tex. Crim. App. 2026) (Finley, 	J., dissenting). Indeed, this Court’s
continuing practice of permitting “the same act to serve as the underlying felony and
the act clearly dangerous to human life deviates from Section 19.02(b)(3)’s text.”
Fraser, 726 S.W.3d at 277.

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This case presents the Court yet another opportunity to right the ship. The
State charged Appellant with felony murder predicated on injury to a child and with
intentionally or knowingly causing serious bodily injury to a child. For purposes of
Appellant’s felony murder charge, both the underlying felony and the act clearly
dangerous to human life alleged the same conduct: causing J.C.’s acceleration and
deceleration with Appellant’s hand or striking J.C. with or against an object or
surface.
Appellant’s first ground for review asks the following question:
Did the Court of Appeals err in holding that a single act can constitute
both the act clearly dangerous to human life and the underlying felony of
injury to a child under Texas Penal Code section 19.02(b)(3), contrary
to the plain text of the statute?
(Original emphasis). The plain text of the felony murder statute does not permit “the
same act to serve as the underlying felony”—in this case, the aggravated assault—
“and the act clearly dangerous to human life.” Fraser, 726 S.W.3d at 277; Posey, 730
S.W.3d at 444. This case provides this Court another opportunity to course correct
and give effect to the felony murder statute’s plain text.
VI. 	Conclusion
With these thoughts, I join the Court’s decision to refuse review of
Appellant’s sufficiency challenge, but I respectfully dissent from this Court’s

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continued refusal to properly interpret the felony murder statute as written by the
Legislature.
Filed: October 15, 2026
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