Allen Latoi Story v. State

• Court: Court of Appeals of Texas
• Decided: February 26, 2020
• Docket: 10-20-00034-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00034-CR

ALLEN LATOI STORY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2011-2499-C1

ABATEMENT ORDER

This is an appeal from the trial court’s January 6, 2020 order denying Allen Latoi

Story’s motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal

Procedure. The clerk’s record in this appeal is due by May 5, 2020. There will be no

reporter’s record at this point because the trial court’s findings of fact and conclusions of

law state that a hearing on Story’s motion for post-conviction DNA testing was not

required. To properly conduct our review of the trial court’s ruling, however, we need

before us all of the evidence that the trial court had before it when it made its ruling. See

Asberry v. State, 507 S.W.3d 227, 228-29 (Tex. 2016). And the trial court’s findings of fact

and conclusions of law state: “The trial court considers affidavits, the record, the State’s

response, the Clerk’s Record, the Reporter’s Record, and other forms of relevant and

reliable proof in support of or in contravention of the Defendant’s motion.”

Accordingly, we abate this cause to the trial court for the parties to create a record

that is capable of being reviewed. This is not a new trial. The parties are not allowed to

reoffer evidence previously submitted at a hearing or trial or to submit new evidence.

Rather, the parties are ORDERED to obtain the “affidavits, the record, the State’s

response, the Clerk’s Record, the Reporter’s Record, and other forms of relevant and

reliable proof in support of or in contravention of the Defendant’s motion” that the trial

court considered and simply mark it as an exhibit for admission into evidence, thus

making it a part of the record in this proceeding. To properly perform our review, it may

be necessary for the trial court to communicate to the parties what “affidavits,” “record,”

“State’s response,” “Clerk’s Record,” “Reporter’s Record,” and “other forms of relevant

and reliable proof in support of or in contravention of the Defendant’s motion” that the

trial court considered so that the parties may mark and introduce them as an exhibit.

The trial court is ORDERED to hold a hearing to receive the above described

evidence within 35 days of the date of this Order. The trial court clerk is ORDERED to

include in the clerk’s record that is due by May 5, 2020, any additional documents

designated by the parties for the appellate record and any additional orders or findings

Story v. State Page 2 of the trial court. The court reporter is also ORDERED to file a reporter’s record of the

hearing with the additional evidence, if any, by May 5, 2020.

The appellant’s brief will then be due 30 days after this Court has received both

the clerk’s record and reporter’s record and has reinstated this appeal.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Neill Appeal abated Order issued and filed February 26, 2020 RWR

Story v. State Page 3