Raby, Charles Douglas ( 2015 )

AP-76,970
COURT OF CRIMINAL APPEALS
FILED IN AUSTIN, TEXAS
COURT OF CRIMINAL APPEALS
Transmitted 4/28/2015 5:13:39 PM
April 29, 2015 Accepted 4/29/2015 8:50:37 AM
ABEL ACOSTA
No. AP-76,970 CLERK
ABELACOSTA, CLERK
In the
Court of Criminal Appeals of Texas
At Austin
No. 9407130
In the 248th District Court
Of Harris County, Texas
CHARLES D. RABY
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE'S MOTION TO PUBLISH
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS;
COMES NOW THE STATE OF TEXAS, by and through the undersigned
Assistant District Attorney, in accordance with Rules 10.1(a) and 47.2(b) of the
Texas Rules of Appellate Procedure, and files this motion to publish, and, in
support thereof, presents the following:
1. In the 248th District Court of Harris County, Texas, cause number
9407130, the appellant was convicted of capital murder in The State of Texas v.
Charles D. Raby.
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2. Based on the jury's answers to the special issues, the trial court
sentenced the appellant to death.
3. On March 4, 1998, the Court of Criminal Appeals affirmed the
appellant's capital murder conviction. Raby v. State, 970 S.W.2d 1 (Tex. Crim.
App. 1998).
4. On January 31, 2001, the Court of Criminal Appeals denied relief on
the appellant's initial state habeas petition, cause number 9407130-A, adopting the
trial court's findings of fact and conclusions of law. Ex parte Raby, No. 58,131-
01 (Tex. Crim. App. Jan. 31, 2001)(not designated for publication).
5. On June 29, 2005, the Court of Criminal Appeals overruled the trial
court's denial of the appellant's Chapter 64 motion for DNA testing on appeal,
granting the motion as to specific items of evidence. Raby v. State, No. AP-74,930
(Tex. Crim. App. June 29, 2005)(not designated for publication).
6. On January 11, 2013, the trial court entered findings concluding that
the results of the Chapter 64 DNA testing were not favorable to the appellant.
7. On April 22, 2015, in an unpublished opinion, the Court of Criminal
Appeals overruled the appellant's points of error and affirmed the trial court's
findings that the results of the post-conviction DNA testing were not favorable to
the appellant. Raby v. State, No. AP-76,970 (Tex. Crim. App. Apr. 22, 2015)(not
designated for publication).
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8. The State respectfully requests that the Court of Criminal Appeals'
April 22, 2015 opinion be pubhshed under Rule 47.4 of the Texas Rules of
Appellate Procedure. If published, this Court's opinion would provide crucial
guidance for Texas courts in examining and determining the favorability of
Chapter 64 post-conviction DNA testing results.
WHEREFORE, the State respectfully prays that the Court of Criminal
Appeals grant the foregoing motion to publish the April 22, 2015 opinion in the
instant case, and will publish the opinion in its entirety.
Respectfully submitted,
/s/
LYNN P. HARDA WAY
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-6657
Fax Number (713) 755-5809
Hardaway_Lynn@dao.hctx.net
State Bar Number: 08948520
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been mailed to Sarah M. Frazier, appellant's attorney of record, at the following
address on April 25, 2015:
Sarah M. Frazier
Berg & Androphy
3704 Travis Street
Houston, Texas 77002
sfrazier@bafirm.com
/s/
Lynn P. Hardaway
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-6657
Fax Number (713) 755-5809
Hardaway_Lynn@dao.hctx.net
State Bar Number: 08948520
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