A hearing Wednesday will determine whether Texas can proceed with a new execution date for Roberson, who would be the first put to death in the United States in a case of so-called shaken baby syndrome.

Judge Reeve Jackson, a visiting judge from Smith County's 114th District Court, set the updated execution date, noting the Court of Criminal Appeals had been sitting on Roberson’s appeal application for five months. Roberson’s attorney argued that the judge couldn’t set a date because his application is still pending.