Daisha Smalls was pumping gas at a nearby Chevron when the suspect jumped into her car and attempted to flee.
According to a police statement at the time, officers ordered the suspect to drop his gun; when he refused they opened fire, killing him.
"Fearing for the mother's safety, one of our officers discharged his duty weapon, fatally striking the suspect," Houston Police Chief Art Acevedo said in a statement, per CNN. "Sadly, baby Legend was also struck. Officers at the scene immediately rendered first aid to Legend."
However police claim his mother was not in the car at the time — something she disputes.
Giving her version of the night, she said she was still in the car when police opened fire.
"I was pumping gas at Chevron, and when I was finished pumping gas I went back to my car, and my son was in the back seat behind me. I saw police at the gas station and a lot of lights, and I heard sirens," she said through tears at a news conference.
"A man tried to run into my vehicle... he got in my vehicle and told me to give him my car. I wouldn't give him my car because I let him know that I have a child in my car and that I would not leave my car without my son. I was sitting in my car when the person jumped in my car, and the police were right behind him."
"Before I knew what happened they were already shooting at my car, and I was just scared for my son's life," Smalls recalled.
"My son has been fighting every day for his life, and he's struggling to breathe on his own, by himself, to move by himself," she added. "My baby didn't deserve this, my baby didn't deserve to be shot, especially not by the police. I just want my baby to be safe. I just want my baby to be healthy."
Her attorney Ben Crump said the baby has been on a ventilator for ten days and has suffered multiple seizures. He had to have part of his skull removed to retrieve the bullet and reduce swelling, but fragments of bullet still remain.
Pray for 1-year-old Legend Smalls! 🙏🏾 This baby boy is fighting for his life in the NICU — struggling to breathe and move on his own — after @houstonpolice shot him in the HEAD at a gas station. Little Legend and his mom Daisha deserve so much better than this nightmare! pic.twitter.com/iTLT0bFepC