Raby, Charles Douglas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP–76,970

CHARLES D. RABY, Appellant

v.

THE STATE OF TEXAS

ON APPEAL IN CAUSE NO. 9407130
FROM THE 248TH JUDICIAL DISTRICT COURT
HARRIS COUNTY

M EYERS, J., delivered the opinion for a unanimous Court.
R ICHARDSON, J., filed a concurring opinion in which K EASLER, H ERVEY, and
Y EARY, JJ., joined.

OPINION

Appellant was convicted of capital murder and sentenced to death. The conviction

was affirmed in Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998). Appellant filed a

motion for post-conviction DNA testing pursuant to Code of Criminal Procedure Chapter

64, which the trial court denied. We overruled the trial court’s denial of Appellant’s

Chapter 64 motion. Raby v. State, No. AP-74,930, 2005 Tex. Crim. App. LEXIS 2194
 Raby–Page 2

(Tex. Crim. App. June 29, 2005) (not designated for publication). After the victim’s

underwear and fingernail clippings were tested, the trial court heard testimony from

experts regarding the DNA test results. The trial court concluded that the results of the

post-conviction DNA testing were not favorable to Appellant. See T EX. C ODE C RIM.

P ROC. art 64.04. Appellant now appeals the district court’s ruling, raising the following

three points of error:

1. The district court erred in applying a proof of innocence standard to its
determination under Article 64.04, instead of determining whether, more
likely than not, at least one juror would find that reasonable doubt exists in
this case, if the new DNA evidence were available.
2. The district court erred in holding that no juror would harbor a
reasonable doubt in this or any case involving a claimed confession and an
unkept home, where testing shows that one or more people–not Mr.
Raby–left blood and DNA under the decedent’s long, blood-caked
fingernails.
3. The district court erred in excluding important forensic and other
evidence not relating directly to DNA testing bearing on the strength of the
new evidence.

Because Appellant was sentenced to death, direct appeal is to this Court. See T EX. C ODE

C RIM. P ROC. art. 64.05.1 We will affirm the findings of the trial court.

FACTS

We granted Appellant’s motion for post-conviction testing on the victim’s

underwear, nightshirt, and fingernail clippings. The nightshirt was not tested because it

was never found in the Houston Police Department property room and testing on the

1
Unless otherwise specified, all subsequent references to Articles are to the Texas Code of
Criminal Procedure.
 Raby–Page 3

underwear indicated that the blood was from the victim. The Article 64.04 hearings

focused on the fingernail clippings, which were determined to contain a weak and

incomplete DNA profile from an unknown male.

At the close of the hearings, which spanned a three-year timeframe, the trial court

completed Findings of Fact and Conclusions of Law. The trial court stated,

Having heard arguments, read the parties’ briefing, affidavit evidence, and
other exhibits, reviewed the trial transcript, and considered the testimony of
experts, including forensic DNA experts interpreting the DNA test results
that have been obtained, this Court has concluded that the results are not
favorable to Petitioner, and that had the DNA test results obtained under
Chapter 64 been available in 1994, it is reasonably probable that Raby
would have been prosecuted or convicted.

The trial court’s findings of fact and conclusions of law also included the following:

The trial court found that two of the fingernail clippings from the victim’s left hand

contained indications of low-level Y-chromosome DNA; that the DNA from the

fingernails is a mixture of at least two individuals and is weak and incomplete; that

Appellant is not a contributor to the DNA profile found on the fingernail clippings; and

that the victim’s grandsons were also excluded as contributors to the DNA profile from

the fingernail clippings.

The serology reports discussed at the hearings indicated that the victim had type B

blood and Appellant has type O blood. The trial court noted that the original report said

that blood having an inconclusive typing result was found on the victim’s fingernails and

that at trial, the HPD crime lab employee said that he was unable to do a comparison
 Raby–Page 4

between the evidence and Appellant’s blood, so the results were inconclusive. The trial

court found Appellant’s expert to be credible and persuasive when she testified at the

hearing on post-conviction testing that the reporting of the results as “inconclusive” was

contrary to and not supported by the record. Appellant’s serology expert also testified

that the A antigen activity detected on the victim’s right fingernail could not have come

from Appellant or the victim, and the source of the A antigen activity remained unknown.

Appellant, however, cannot be excluded as a contributor to the blood detected on the

victim’s fingernails. The serologist opined that the police offense report should have

stated that the A and B activity detected on the fingernail samples could not have come

from the defendant and that blood was not detected on the defendant’s jacket or t-shirt.

The trial court found that the victim was undernourished, weak, frail, and ill; she

had trouble walking and spent most of her time in bed. Appellant was friends with the

victim’s grandsons and had been in her home on many occasions, often entering through

two different bedroom windows. The trial court found that a week prior to the offense,

the victim told Appellant to leave her house because she did not like him, which caused

Appellant to get angry and throw a beer bottle. The court found that the victim’s house

was messy and in disarray at the time of the offense and that her grandson admitted that

he was a poor housekeeper. The victim’s grandsons often had friends visit the house and

the house was being painted by a male painter at the time of the offense. The trial court

found that the victim’s daughter spoke to her at 6:45pm on the evening of the offense.
 Raby–Page 5

The victim’s grandson returned home at 10:00pm and found the victim’s body in the

living room. The cause of death was multiple stab wounds, which could have been

inflicted by a pocketknife with a blade as small as two inches.

The trial court found that Appellant confessed, “stating that he was carrying a

pocketknife that he used to clean his fingernails on the day of the complainant’s murder.

In his confession, the defendant recounted, inter alia, how he had been drinking beer,

whiskey, and Mad Dog 20/20 and stated the following:”

I drank the bottle of wine and then I walked over to Lee’s house on
Westford Street. Lee lives there with his grandmother, Edna and his cousin
Eric. There is an old Volkswagon in the drive way at their house. I walked
up to the front door. The front door has a screen type door in front of a
wooden door. I knocked on the door. I did not hear anyone answer. I just
went inside. I sat down for a little bit on the couch. I called out when I got
inside but I did not hear anyone say anything. I heard Edna in the kitchen. I
walked into the kitchen and grabbed Edna. Edna’s back was to me and I
just grabbed her. I remember struggling with her and I was on top of her. I
know I had my knife but I do not remember taking it out. We were in the
living room when we went to the floor. I saw Edna covered in blood and
underneath her. I went to the back of the house and went out the back door
that leads into the back yard.

Shortly after I had left Lee’s house on Westford I was approached by a man
and this man told me something like “I had better not catch you in my
yard,” “jumping his fences.” Or something like that. I woke up later on the
ground near the Hardy Toll Road and Crosstimbers. I walked home, on
Cedar Hill from there. I remember feeling sticky and I had blood on my
hands. I washed my hands off in a water puddle that is near the pipe line by
the Hardy Toll Road. I do not remember what I did with my knife.

The next day I knew I had killed Edna. I remembered being at her house
and struggling with her and Edna was covered with blood when I left. I
think I was wearing a black concert shirt, the blue jeans Im [sic] wearing
and my Puma tennis shoes. I also had on a black jacket.
 Raby–Page 6

The trial court also found that the defense did not urge an exculpatory account of the

offense at trial; the defense conceded that Appellant admitted to killing the victim but

argued that it did not rise to the level of a capital murder because the State failed to prove

that the offense was committed in the course of robbery, aggravated sexual assault, or

burglary. The defense asked the jury to return a verdict of the lesser-included offense of

murder and stated that the defendant killed the victim and nothing more.

The court found unpersuasive and not dispositive to the findings the information in

Appellant’s proffered affidavits from individuals who were not involved in the post-

conviction DNA testing process. The trial court concluded that Appellant’s DNA

expert’s testimony that the presence of weak and incomplete male DNA on the victim’s

fingernails was “potentially probative evidence” in identifying the killer does not warrant

a favorability finding under Article 64.04. The trial court found that the results of post-

conviction DNA testing are not favorable to the defendant based on the following

evidence: the absence of Appellant’s DNA on evidence subjected to DNA testing did not

warrant the conclusion that Appellant did not commit the offense; there was no indication

of when or how the low levels of DNA were deposited on victim’s fingernails; the expert

could not say that the DNA originated from the assailant; there were sources for the male

DNA other than the assailant; it is possible for foreign DNA to be under the fingernails

from daily contact; the weak and incomplete male DNA on the victim’s fingernails could

have been deposited by contact with various surfaces, such as the floor where her body
 Raby–Page 7

was discovered or from other male individuals who entered her home. The trial court also

considered the expert’s statement that Appellant could not be excluded as a contributor of

the blood detected on the victim’s fingernails.

The trial court found that the totality of the evidence, including the confession and

circumstantial evidence, present a strong case that Appellant committed the offense. The

trial court considered circumstantial evidence such as Appellant’s prior confrontation

with the victim, trial witnesses who saw Appellant in the victim’s neighborhood at the

time of the murder, Appellant’s statement to one neighbor that he was going to the

victim’s house to look for his friends, and Appellant’s flight from his girlfriend’s house

when the police arrived to question him. Trial witnesses also corroborated details of

Appellant’s confession, including the clothes he was wearing, that he was drinking and

carrying a pocket knife just prior to the offense, that he exited out the back door of the

victim’s house, and that he was confronted by one of the neighbors for jumping the fence

after the offense. The trial court stated:

I make my findings based on seeing juries’ strong reliance on confessions,
especially when confessions are supported with witnesses who know the
Applicant is heading to the decedent’s home and witnesses who see the
Applicant flee from the back of the home, in addition to photos of a home
where it would not be unlikely for any dweller to pick up DNA from a
source other than Applicant. Accordingly, this Court finds that the jury
would have made the same determination even with the new DNA and
Serology evidence.

APPELLANT’S ARGUMENTS

Appellant argues that the district court applied an actual-innocence standard in
 Raby–Page 8

evaluating the DNA evidence when proof of innocence is not required under Chapter 64.

Rather, the question the court must answer is whether there is a 51% chance that the

defendant would not have been convicted had the DNA results been available at trial.

New DNA evidence need only be sufficient to have established doubt about guilt in the

mind of at least one juror so as to preclude a unanimous verdict. Appellant contends that

given the State’s theory of a single assailant, reasonable doubt is established by the

finding that the victim’s fingernails contained male DNA that did not come from

Appellant. Had the district court applied the correct reasonable-doubt standard, Appellant

says that the results of the DNA testing would have been considered favorable to him and

a fair-minded juror would find reasonable doubt about his guilt.

Appellant argues that the district court basically held that juries will not consider

forensic evidence when a defendant has confessed to the crime. The court focused on his

custodial statement and the disarray at the scene of the murder, even though the experts

agree that the blood and DNA found on the victim’s fingernails did not come from

Appellant. By granting DNA testing, this Court found that the corroborated evidence that

he was near the victim’s home at the time of the murder would not preclude a finding that

the DNA evidence was favorable, so the trial court should not have determined that the

existence of the confession removes the possibility of the DNA results being exculpatory.

And, because some of Appellant’s custodial statement was inconsistent with evidence in

the case, the statement does not prevent the DNA results from creating reasonable doubt.
 Raby–Page 9

Appellant argues that the trial court erred in concluding that the victim’s messy

house provided an innocent explanation for why DNA not belonging to him was found at

the scene. Appellant presented studies showing that DNA found under a victim’s

fingernails after a violent crime was not commonly transferred by casual contact and that

foreign DNA is rarely found under an individual’s fingernails under normal

circumstances. Thus, the disarray of the house does not overcome the reasonable doubt

raised by the existence of DNA not belonging to Appellant that was found under the

victim’s fingernails. Appellant contends that the DNA found under the victim’s

fingernails is probative to the assailant’s identity because the victim normally had very

little physical contact with others but would have had considerable contact with her

attacker, as indicated by her defensive wounds and crime-scene evidence of a struggle.

Appellant’s DNA expert opined that the DNA test results were highly probative when

considered with the other evidence and would provide reasonable doubt for a jury.

Appellant argues that although Article 64.04 includes only DNA evidence, he

should have been able to call witnesses other than a DNA expert to testify in light of the

new DNA results and should have been able to question witnesses on other forensic

issues that would have made the DNA evidence more probative. Had the DNA results

been available at the time of the trial, Appellant says that his trial strategy would have

been different, and he should be able to address these issues by calling witnesses to testify

at the hearing. Appellant concludes that there are no limits on the evidence that may be
 Raby–Page 10

introduced in Chapter 64 proceedings and the trial court erred in excluding evidence that

provided context for evaluating the DNA evidence, which would have been introduced at

trial if the DNA results had been available.

Appellant asks us to reverse the findings of the trial court and rule that it is

reasonably probable that he would not have been convicted had the results of the DNA

testing been presented at his trial.

STATE’S ARGUMENTS

The State says that the trial court applied the correct standard in assessing the

favorability of the DNA test results. The court stated that it did not apply an innocence

standard and that Appellant was not required to prove his innocence. The State argues

that DNA results establishing that Appellant’s DNA was not on the victim’s fingernail

scrapings do not warrant a favorability finding because there is no evidence that the

victim was able to hit or scratch her assailant as she was attacked. Due to the victim’s

weakness and frailty and the injuries that she sustained in the attack, it is reasonable to

conclude that she was taken by surprise, overpowered, and unable to fight back.

Appellant stated in his confession that he grabbed the victim from behind while holding a

knife and much of Appellant’s confession is corroborated by witness testimony and by

other evidence. The State concludes that the absence of a defendant’s DNA from a

victim’s fingernails has minimal exculpatory value and the trial court properly found that

the results of the post-conviction DNA testing were not favorable to Appellant.
 Raby–Page 11

Citing Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002), the State argues that

even if DNA results provide a weak exculpatory inference, the inference does not

outweigh a defendant’s confession. By granting the motion for DNA testing, this Court

said that the confession did not prevent Appellant from establishing the issue of identity,

but we did not reject the consideration of the confession in determining favorability of the

DNA test results. The trial court did not focus on just Appellant’s confession and the

disarray of the murder scene, it also considered the facts raised at trial and the expert

testimony presented at the hearing. The State points out that even Appellant’s DNA

expert testified that there was no indication of when or how the DNA got on the victim’s

fingernails and that there were possible sources for the DNA other than the assailant.

The State argues that the evidence that Appellant complains was improperly

excluded was outside the scope of Chapter 64. An Article 64.04 hearing is limited to a

determination of the favorability of post-conviction DNA testing results; it is not the

place to present evidence that is more properly considered in a habeas proceeding. The

State notes that although Appellant’s proposed testimony was properly excluded because

it was not relevant to the trial court’s consideration of the DNA results, Appellant was

permitted to offer affidavits from witnesses who did not testify at the hearing and the trial

court considered the affidavits in making its favorability determination.

DISCUSSION

Standard
 Raby–Page 12

Although Article 64.04 has since been amended, at the time Appellant filed his

motion for DNA testing, Article 64.04 stated:

After examining the results of testing under Article 64.03, the convicting
court shall hold a hearing and make a finding as to whether the results are
favorable to the convicted person. For the purposes of this article, results
are favorable if, had the results been available before or during the trial of
the offense, it is reasonably probable that the person would not have been
prosecuted or convicted.

At the hearing, Appellant discussed the standard for reviewing a Chapter 64 motion and

the differences between that standard and the actual innocence standard. The judge

agreed that proof of innocence was not required. Appellant says that the court used an

innocence standard in finding “that the absence of the defendant’s DNA on evidence

subjected to post-conviction DNA testing did not warrant the conclusion that the

defendant did not commit the instant offense.” The court also concluded that “the

defendant cannot be excluded as a contributor to the blood detected on the complainant’s

fingernails. Accordingly, such evidence does not warrant a finding of favorability

pursuant to Article 64.04. Moreover, such evidence, in addition to the inculpatory

evidence elicited at trial, does not unquestionably establish the defendant’s innocence.”

While it is true that the trial court did cite some actual-innocence cases, it was only after

the court had already concluded that the evidence did not warrant a favorability finding

under Article 64.04, and nothing in the record indicates that the court improperly used an

actual-innocence standard in making its determination on the favorability of the DNA

results. Some of the serologist’s testimony may have been considered “newly discovered
 Raby–Page 13

evidence” and discussed in terms of the Elizondo actual-innocence standard rather than

the reasonable-probability standard for Chapter 64 DNA evidence. See Ex parte

Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). However, most of the discussion at

the close of the Chapter 64 hearing focused on the proper application of the Article 64.04

standard. At the hearing, the court addressed Appellant’s burden in terms of finding him

“not guilty” and discussed whether the unknown DNA on the victim’s nails establishes

“reasonable doubt” that he committed the crime to which he confessed. The trial court’s

findings of fact and conclusions of law are supported by the record, and the discourse at

the hearing indicated that the trial judge understood the proper standard and considered

whether it was reasonably probable that Appellant would not have been prosecuted or

convicted had this evidence been presented to the jury at his trial.

The Confession and State of the Crime Scene

Exculpatory DNA test results are results that would exclude the appellant as the

donor of the biological material tested. As we stated in Ex parte Gutierrez, 337 S.W.3d

883, 892 (Tex. Crim. App. 2011), “A ‘favorable’ DNA test result must be the sort of

evidence that would affirmatively cast doubt upon the validity of the inmate’s

conviction.” When post-conviction testing leaves the court with a question, the court

looks to the evidence raised at trial to determine if the jury would still have convicted the

appellant had this evidence been presented to them.

Here, the results of the post-conviction testing indicated that the blood sample
 Raby–Page 14

from the victim’s fingernails contained A-antigen activity that could not have come from

either Appellant or the victim, but that Appellant cannot be excluded as a contributor.

The expert testified that this is due to the fact that A, B, and H antigens were all present

on the victim’s fingernail sample and that the source of such antigen activity is most

likely an individual with AB blood type. However, the source could be a mixture of three

individuals with A, B, and O blood types, or a mixture of two individuals–one with blood

type AB and the other with type O, or one with blood type A and the other with type B.

Because the victim had blood type B and Appellant had type O, this leaves the possibility

that Appellant was the contributor of the H antigens, the victim was the contributor of the

B antigens, and the A antigens came from some other source. It is known that the A

antigen in the sample did not come from Appellant, and the fact that H antigens were

detected in the sample does not necessarily mean that type O blood (such as Appellant’s)

was present.

Appellant’s expert testified that the results were potentially probative, but that the

DNA could have been deposited in many ways. When the evidence was collected in

1992, the collection methods were not by the same standards as are now used. The

fingernails were stored in two plastic containers, one container for the fingernails of each

hand, and the DNA could have come from the top of or underneath the fingernails.

Appellant’s expert said they found low-level male DNA on two of the nails and they

combined those two samples and got a low-level partial profile. The sample was a
 Raby–Page 15

mixture of at least two males, neither of which were Appellant or the victim’s grandsons.

Appellant’s expert says this is probative because, if the DNA did not come from innocent

contact with somebody the victim had close daily contact with, it “may have originated

from the perpetrator who murdered Ms. Franklin.”

Appellant argues that the results should be determined to be favorable to him

because there was blood at the scene of the crime that was not from him. He also

disagrees with the court’s finding that his expert could not definitively state that the male

DNA originated from the assailant and says that his expert testified that the evidence does

indicate reasonable doubt. Appellant notes that, because the DNA came from blood, the

court’s findings that there was no indication of when or how the DNA was deposited, that

there were possible sources of the DNA other than the assailant, and that the DNA could

have come from normal contact, are incorrect. However, Appellant’s expert did testify

that there was no way of knowing when or how the DNA was deposited. Appellant

argues that there was no evidence of any sources of blood other than the assailant and

there was proof of a struggle between the victim and the assailant because the victim had

bruises on both of her arms that could have been defensive wounds. The State responds

that, while the victim had some defensive wounds and bruises, there was no evidence that

she scratched the assailant and would therefore have had his blood under her fingernails.

The State also asserts that the evidence that the victim was elderly, weak, and frail, and

Appellant’s confession, which stated that he came at her from behind refutes evidence of
 Raby–Page 16

a struggle.

The State’s expert testified that the absence of DNA does not mean the absence of

contact. For example, the victim’s grandsons had regular contact with her, but their DNA

was not found on her fingernails. The expert also said that the victim could have picked

up male DNA from laying on the floor after her attack and that contamination cannot be

ruled out because the sample was small and weak. Appellant’s expert agreed that

contamination could not be ruled out and that there was no way of knowing when the

DNA got on the victim’s fingernails.

In State v. Swearingen, 424 S.W.3d 32, 38-39 (Tex. Crim. App. 2014), we

reversed a trial court’s order for DNA testing of scrapings from the victim’s fingernails.

In that case, as here, the evidence against Swearingen was primarily circumstantial.

There was evidence that Swearingen told acquaintances that he was going to meet the

victim and evidence that, on the day of the crime, Swearingen was seen in the area where

the victim’s body was later found. Swearingen fled from police and, while in jail,

confessed to the murder and wrote a letter detailing specifics of the offense that were

corroborated by physical and medical evidence. Unlike here, however, there was

evidence that the victim may have scratched Swearingen, as he had red marks on his

neck, cheek, and back at the time of his arrest. Despite this evidence and the fact that

preliminary testing excluded both the victim and Swearingen as contributors of the blood

under the victim’s fingernails, we failed to see how the presence of unidentified male
 Raby–Page 17

DNA under the victim’s fingernails would change the jury’s verdict of guilt. We stated:

We are not persuaded that results showing the presence of another DNA
donor in the fingernail scrapings would overcome the “mountain of evidence” of the
appellee’s guilt. Primarily, this is because the victim’s having encountered another person
would not factually exclude the appellee from having killed her. There are many ways
someone else’s DNA could have ended up in the victim’s fingernails. Such results would
not require an inference that the appellee would [have] been acquitted.

Id. at 38-39.2 We agree with Swearingen that the fact that DNA from an unknown source

was present on the victim’s fingernails shows only that some other person had some

contact with the victim at some unknown point in time, and there is nothing to show that

the DNA was left by the assailant.

The court did not err in considering the crime-scene photos that showed that the

victim’s home was messy and in disarray. Such evidence was relevant to the explanation

and interpretation of the DNA test results. Appellant’s argument that blood on the

victim’s fingernails could have come only from the victim, her two grandsons who lived

with her, or her killer may have been more persuasive if the house appeared spotless and

recently thoroughly cleaned. Appellant emphasized that the victim’s grandsons were her

only contacts, but other evidence indicated that, although the victim was ill and rarely left

her home, she had a lot of contact with people. Her grandsons had many friends who

often visited the home, which could explain why she had male DNA not belonging to

Appellant on her fingernails. And, because the house was messy and not regularly

2
One distinguishing factor between Swearingen and the case before us is that, in
Swearingen, the preliminary test results showing that the blood under the victim’s fingernails did
not come from the victim or Swearingen had been presented to, and disregarded by, the jury.
 Raby–Page 18

cleaned, the DNA could have been left by one of the many past visitors and could have

been there for a long period of time. Appellant contends that the studies show that most

foreign DNA under fingernails comes from intimate contact or from someone the victim

has struggled with during an attack and the fact that the DNA is from blood makes it less

likely that she got it by casual contact. Appellant also points out that, if the DNA on the

victim’s fingernails was casually picked up from the messy home, then you would expect

some of the DNA to be from her grandsons, who lived in the home with her. The State

responds that the studies cited by Appellant show how often someone’s DNA does not

appear, so it is not surprising that Appellant’s DNA would not be found even if he

committed the crime.

According to Appellant, we should consider the presence on the victim of DNA

that did not come from him to be exculpatory rather than looking for hypotheticals to

explain how he might still be guilty even with these DNA results. However, we disagree

that the court used the state of the crime scene to come up with hypothetical scenarios to

show Appellant’s guilt. Appellant signed a confession and admitted in court that he was

guilty of the crime. Independent testimony by witnesses who saw Appellant immediately

before and after the crime was committed corroborated parts of the confession.

The record supports the trial court’s findings that there is not a reasonable

probability that had these DNA results been available before or during his trial, Appellant

would not have been prosecuted or convicted. The trial court did not err in considering
 Raby–Page 19

Appellant’s confession and the state of the crime scene in making this determination.

Excluded Testimony

Appellant wanted to present testimony at the Chapter 64 hearing that was not

directly related to the results of the DNA testing. He says that, if blood DNA evidence

had been available at the time of trial, then the whole case would have been different; it

would have been investigated differently by the Houston Police Department, handled

differently by prosecutors, and defended differently by his counsel. He wished to call

witnesses at the Chapter 64 hearing, including his trial counsel, the victim’s grandson, the

HPD crime lab technician who testified at the trial, and a pathologist to provide context

for the evaluation of the DNA results and to present evidence that likely would have been

introduced at trial if the DNA evidence had been available.3 However, such testimony is

outside the scope of a Chapter 64 hearing. As we stated in Rivera v. State, 89 S.W.3d 55,

59 (Tex. Crim. App. 2002), under Article 64.04, “the Legislature provided for a hearing,

to give the parties a forum to submit evidentiary matters relating to the test results.” A

hearing under Article 64.04 is solely for the purpose of examining the results of DNA

testing to determine whether the results are favorable to the appellant and show that it is

reasonably probable that he would not have been prosecuted or convicted had the results

been available before or during the trial. While the court may consider all of the evidence

from the trial in light of the new DNA test results in making a favorability determination,

3
The trial court excluded these witnesses but allowed them to submit affidavits, which the
court found unpersuasive and not dispositive to the findings under Article 64.04.
 Raby–Page 20

a Chapter 64 hearing is not a retrial of the case. In Ex Parte Gutierrez, 337 S.W.3d 883

(Tex. Crim. App. 2011), we explained that “Chapter 64 is simply a procedural vehicle for

obtaining certain evidence ‘which might then be used in a state or federal habeas

proceeding.’” Id. at 890 (citing Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App.

2005)). Exculpatory DNA results are the “certain evidence” to which we were referring.

The evidence presented at a Chapter 64 hearing should be limited to the explanation of

the results of the new DNA testing.

We agree with the State that testimony that was not directly related to the results of

DNA testing was outside the scope of the Chapter 64 hearing and would be more properly

raised in Article 11.071 habeas proceedings. The trial court did not err in excluding such

evidence.

CONCLUSION

The trial court applied the proper standard and concluded that the results of the

DNA testing were not favorable to Appellant. It was not error for the trial court to

consider the DNA results in light of other evidence raised at trial, including Appellant’s

confession and the state of the crime scene. It was also proper for the trial court to limit

the scope of the Chapter 64 hearing to expert testimony related to the examination of the

DNA test results.

The findings of the trial court are affirmed.
 Raby–Page 21

Delivered: April 22, 2015
Do Not Publish