Roberson filed an appeal of the conviction with the Texas Court of Criminal Appeals in February after his attorneys said there is new scientific evidence suggesting the shaken baby theory was wrong.

The family of two-year-old Nikki Curtis and Robert Roberson argued before Wednesday’s hearing that set Roberson’s execution date.

Roberson’s lawyers had objected, arguing Roberson still has an appeal pending before the Texas Court of Criminal Appeals that his legal team says contains “powerful new evidence of his innocence.”