Benjamin Alan Morrison v. State

• Court: Court of Appeals of Texas
• Decided: February 19, 2020
• Docket: 10-19-00287-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00287-CR

BENJAMIN ALAN MORRISON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2010-997-C1

ABATEMENT ORDER

This is an appeal from the trial court’s August 9, 2019 order denying Benjamin

Alan Morrison’s motion for post-conviction DNA testing under Chapter 64 of the Code

of Criminal Procedure. The clerk’s record and a supplemental clerk’s record have been

filed in this appeal. No reporter’s record has been filed because, according to the official

court reporter, no hearing on Morrison’s motion was held in which a record was made.

To properly conduct our review of the trial court’s ruling, we need before us all of

the evidence that the trial court had before it before it made its ruling. See Asberry v. State, 507 S.W.3d 227, 228-29 (Tex. 2016). The trial court’s findings of fact and conclusions of

law state: “The trial court considers affidavits, the record, the State’s response under

Article 64.02, 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.”

The clerk’s record in this appeal includes an “Affidavit in support of forensic DNA

testing,” filed by Morrison on July 24, 2019, as well as the “State’s Answer to Movant’s

Ch. 64 Request for Post-Conviction DNA Testing,” filed on August 7, 2019. However,

because no hearing was held on Morrison’s motion, this Court does not have all of the

evidence that the trial court had before it when it made its ruling on Morrison’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 record,” “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 “record,” “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.

Morrison v. State Page 2 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

file a supplemental clerk’s record containing any additional documents designated by the

parties for the appellate record and any additional orders or findings of the trial court

within 49 days of the date of this Order. The court reporter is also ORDERED to file a

reporter’s record of the hearing with the additional evidence, if any, within 49 days of the

date of this Order.

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

the supplemental 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 19, 2020 RWR

Morrison v. State Page 3