Damon Lavelle Asberry v. State, 524 S.W.3d 335

Background

Asberry, convicted previously, obtained post-conviction DNA testing under Tex. Code Crim. Proc. ch. 64; the trial court granted testing and, after results, denied a new trial finding the new DNA would not have changed the outcome.
On appeal, the Tenth Court of Appeals (Waco) performed a de novo review of the limited record from the Chapter 64 hearing and held Asberry failed to prove by a preponderance that the new DNA would have prevented conviction; the court declined to consider the original trial record because it had not been admitted at the Chapter 64 hearing.
The Texas Court of Criminal Appeals reversed, holding a reviewing court must consider all evidence that was before the trial court when it ruled in a Chapter 64 proceeding, including materials not admitted at the hearing and even some statements not admissible at trial; it remanded for reconsideration.
On remand the Tenth Court of Appeals ordered the parties to produce a complete appellate record that includes any proceeding the trial court relied on (including the original trial reporter’s and clerk’s records), to mark those materials as exhibits, and to include the trial judge’s non-credibility-related personal recollection (either by dictation or written filing).
The court emphasized this is not a new evidentiary hearing nor a chance to present new evidence; rather the existing materials the trial court considered must be incorporated into the record so the appellate court can perform a de novo review.
The trial court was ordered to hold a hearing within 35 days to receive the described evidence; time limits for supplemental clerk’s and reporter’s records were set (14 and 21 days after the hearing, respectively). The appeal was abated pending compliance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a reviewing court may consider materials the trial court relied on if those materials were not admitted at the Chapter 64 hearing	Asberry: all materials the trial court considered are relevant to de novo review and should be available on appeal	State: appellate review should be limited to the record actually admitted in the Chapter 64 hearing	Court of Criminal Appeals: reviewing court must consider all evidence that was before the trial court; remand for supplementation
Whether the appellate record must be supplemented with original trial records and other materials the trial court took judicial notice of	Asberry: original trial records and other materials the trial court relied upon should be made part of the appellate record	State: opposing broad supplementation (argues review limited to hearing record)	Court ordered parties to obtain and mark as exhibits any proceedings the trial court considered (including original trial reporter’s/clerk’s records)
Whether the trial court’s personal recollection can be placed in the record for appellate review	Asberry: trial judge’s recollection is part of the basis for the decision and should be documented	State: trial judge’s off-the-record recollections should not expand the record	Court ordered the trial court to place its non-credibility-related recollections on the record (dictation or written filing)
Whether new evidence may be submitted on remand	Asberry: wants fullest possible record (but did not seek new evidence beyond what trial court had)	State: opposes new/additional evidence being admitted on remand	Court: explicitly prohibited new evidence; remand is for making existing materials the trial court considered part of the appellate record only

Key Cases Cited

Hicks v. State, 151 S.W.3d 672 (Tex. App.—Waco 2004) (discussing de novo review standard in post-conviction proceedings)
Robinson v. State, 790 S.W.2d 334 (Tex. Crim. App. 1990) (procedural rule about briefing deadlines following supplementation of the record)