                                                                                      AP-76,970
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                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

                                     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.

                                                                        Page 1 of 4
      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).


                                                                           Page 2 of 4
      8.     The State respectfully requests that the Court of Criminal Appeals’

April 22, 2015 opinion be published 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. 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




                                                                            Page 3 of 4
                         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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