IN THE
TENTH COURT OF APPEALS
No. 10-15-00032-CR
DAMON LAVELLE ASBERRY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-1625-C2A
MEMORANDUM OPINION
Damon Lavelle Asberry was convicted of murder and sentenced to life in prison.
TEX. PEN. CODE ANN. § 19.02(b) (West 2011). We affirmed his conviction, and our
judgment was affirmed by the Court of Criminal Appeals. Asberry v. State, No. 10-08-
00237-CR, 2009 Tex. App. LEXIS 8512, *1 (Tex. App.—Waco Nov. 4, 2009) (not
designated for publication), aff’d, No. PD-0257-10, 2011 Tex. Crim. App. Unpub. LEXIS
101 (Tex. Crim. App. 2011). Subsequently, Asberry filed a motion for DNA testing.
Based on the motion and the agreement of the parties, the trial court ordered testing to
be completed. After the results were obtained and a hearing held regarding those
results, the trial court made findings unfavorable to Asberry. Because there was no
error shown in the trial court’s findings, the trial court’s findings are affirmed.
In his sole issue, Asberry contends the trial court erred in its finding that there
was not a reasonable probability that Asberry would have been acquitted had the new
results been known at the time of trial. Article 64.04 states that "after examining the
results of [DNA] testing under Article 64.03, the convicting court shall hold a hearing
and make a finding as to whether, had the results been available during the trial of the
offense, it is reasonably probable that the person would not have been convicted." TEX.
CODE CRIM. PROC. ANN. art. 64.04 (West 2006). After conducting the required hearing,
the trial court found:
that had the results been known at the time of trial, there is NOT a
reasonable probability of innocence, and that it is NOT more likely than
not that no reasonable juror would have convicted the defendant in light
of the new evidence.
A de novo review is the appropriate appellate review of the trial court's rulings
under article 64.04. Frank v. State, 190 S.W.3d 136, 138 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d); Hicks v. State, 151 S.W.3d 672, 675 (Tex. App.—Waco 2004, pet. ref'd).
In reviewing the trial court's article 64.04 ruling, we review the entire record to
determine whether Asberry established, by a preponderance of the evidence, that he
Asberry v. State Page 2
would not have been convicted had the new results of the DNA test been available at
trial. See Frank, 190 S.W.3d at 138.
In this case, there is virtually no record to show, or that could show, error by the
trial court. In addition to reviewing the previous and new test results entered into
evidence1 and the argument of counsel, the trial court relied on its own independent
recollection of the trial and found that it was “NOT more likely than not that no
reasonable juror would have convicted the defendant in light of the new evidence.”
We have held that "testimony from a previous trial cannot be considered by the
trial judge at a subsequent trial unless it is admitted into evidence at the subsequent
proceeding." Davis v. State, 293 S.W.3d 794, 797 (Tex. App.—Waco 2009, no pet.) (trial
court erred in taking judicial notice of previous criminal trial in subsequent forfeiture
proceeding). In order for testimony at a prior hearing or trial to be considered at a
subsequent proceeding, the transcript of such testimony must be properly authenticated
and entered into evidence. Id. at 798. The transcript of Asberry’s prior trial was not
properly authenticated and entered into evidence at the article 64.04 hearing.
The lack of a properly introduced record does not, however, benefit Asberry.
Asberry had the burden to establish, by a preponderance of the evidence, that he would
not have been convicted had the jury been presented with the new DNA test results.
1Although the previous DNA test results could not exclude Asberry or the murder victim as possible
contributors to the sample of DNA tested, the sample of DNA tested randomly matched half of the
general population. The current DNA test results excluded Asberry and the murder victim as possible
contributors.
Asberry v. State Page 3
Because there is no record of the previous trial, we have only the test results to consider;
and those alone do not satisfy Asberry’s burden.
Accordingly, Asberry’s sole issue is overruled, and the trial court’s findings are
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 8, 2015
Do not publish
[CRPM]
Asberry v. State Page 4