Opinion
Appellate case number: 01-17-00713-CR
10-24-2017
Dror Haim Goldberg v. State of Texas
ORDER Trial court case number: 805617 Trial court: 248th District Court
Appellant is appealing a trial court's ruling under Chapter 64 of the Code of Criminal Procedure regarding post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.04 (West 2011). We review the trial court's ruling de novo. See Frank v. State, 190 S.W.3d 136, 138 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) ("Articles 64.03 and 64.04 act in concert to establish the procedures of retesting DNA evidence and reviewing the results. . . . In reviewing the trial court's article 64.04 ruling de novo, we review the entire record to determine whether appellant established . . . that he would not have been convicted. . . .").
Appellant has filed a motion to abate the appeal because the appellate record in this case "does not contain the clerk's record or reporter's record from Appellant's original trial" and he "cannot fully evaluate Appellant's claim. This Court would also be unable to fully review Appellant's case de novo without the official trial records that the trial court reviewed." Appellant requests that we abate to the trial court "to obtain the official trial records that it reviewed and make them a part of the record in this proceeding."
The previous trial court records from appellant's earlier filed appeal in appellate cause number 01-00-00628-CR have been preserved by this Court. The Clerk of this Court is instructed to transfer the trial court record from appellate cause number 01-00-00628-CR to 01-17-00713-CR, unless any party objects within 10 days of the date of this order. See Asberry v. State, 507 S.W.3d 227, 229 (Tex. Crim. App. 2016) (Chapter 64, which permits comparison of the proof offered at trial with the proof currently available necessitates a review of the prior proceedings; "all of the evidence that was before the trial court before it made its ruling should be available to, and considered by, the reviewing court"). If any party needs access to the trial court records in the earlier filed appeal, please call the Clerk of the Court. Because appellant and this Court can review the trial court records from appellate cause number 01-00-00628-CR, appellant's motion to abate the appeal is denied.
It is so ORDERED. Judge's signature: /s/ Chief Justice Sherry Radack
[×] Acting individually [ ] Acting for the Court Date: October 24, 2017