            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

        R ICHARDSON, J., filed a concurring opinion in which Keasler, Hervey, and Yeary,
JJ., joined.

                          CONCURRING OPINION

       I join in this Court’s decision to affirm the findings made by the trial court pursuant

to Article 64.04. I write separately to address what is a small, yet significant, issue I have

with the trial court’s wording. At the time that Appellant filed his motion for DNA testing,

the 2002 version of Article 64.04 required the trial judge to make a finding “as to whether
the results are favorable to the convicted person,” and it explained that results are considered

“favorable” if, had they been available before or during the trial of the offense, “it is

reasonably probable that the person would not have been prosecuted or convicted.”

       Article 64.04 was amended in September of 2003, to eliminate the term “favorable.”

Article 64.04 now simply requires the trial court to 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.”       However, the amended statute requires essentially the

same analysis by the trial court, and the trial court’s finding should track the statutory

language exactly as it is written. In other words, a trial court is instructed by Article 64.04

to find that, had the DNA results been available before or during trial, it is either reasonably

probable that the person would not have been convicted, or it is not reasonably probable that

the person would not have been convicted.

       In this case, the trial court made the necessary finding under the 2002 version of

Article 64.04 regarding whether the results would have been “favorable, ” noting that “the

results are not favorable” to the appellant. As pointed out in the majority opinion, the trial

court focused on the proper application of the Article 64.04 standard. However, the trial

court elaborated on its finding that the results were not favorable by stating 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.” This might have been an accurate
finding had the DNA results conclusively established Raby’s guilt, but they did not. The

DNA results in this case were “weak and incomplete.” Therefore, by not correctly tracking

the language of the statute, which would have required the use of a double negative, the trial

court inaccurately altered the impact that the DNA results would have had at trial. In this

case, stating the finding in an affirmative way (i.e., it is reasonably probable that Raby would

have been prosecuted or convicted) does not mean the same as finding that it is not

reasonably probable that Raby would not have been prosecuted or convicted. I believe this

distinction is critical. In any event, however, the trial court sufficiently articulated its

findings to correctly apply the standard under Article 64.04 and thus overcome what I believe

was a misstatement in its findings.

FILED: April 22, 2015

DO NOT PUBLISH
