Kutzner v. State

• Decision Date: 10 April 2002
• Docket Number: No. 74135.,74135.
• Citation: 75 S.W.3d 427
• Parties: Richard William KUTZNER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

75 S.W.3d 427

Richard William KUTZNER, Appellant, v. The STATE of Texas.

No. 74135.

Court of Criminal Appeals of Texas.

April 10, 2002.

Rehearing Denied June 12, 2002.

Jim Marcus, Houston, for Appellant.

Gail Kikawa McConnell, Asst. DA, Conroe, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, HOLCOMB and COCHRAN, JJ., joined.

This is an appeal from the convicting court's denial of appellant's motion for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. We affirm.

Appellant was convicted of capital murder and sentenced to death. This Court affirmed appellant's conviction and sentence on direct appeal. See Kutzner v. State, 994 S.W.2d 180 (Tex.Cr.App.1999). Following the disposition of his direct appeal, appellant unsuccessfully pursued various state and federal post-conviction remedies. After appellant exhausted these remedies, the convicting court set appellant's execution date for July 25, 2001. On July 16, 2001, nine days before his scheduled execution date, appellant filed a Chapter 64 motion in the convicting court for DNA testing. The convicting court declined to order DNA testing and appellant filed an appeal with this Court. We sua sponte ordered the parties "to brief the issue of this Court's jurisdiction to review a convicting court's adverse finding or conclusion under Art. 64.03 V.A.C.C.P." Kutzner v. State, No. 74, 135 (per curiam order delivered July 24, 2001) (nonpublished).

I. Constitutional Jurisdiction

The State claims that this Court does not have subject matter jurisdiction over this Chapter 64 DNA appeal. This Court has only such powers as are conferred on it by the Constitution and by statutes that do not conflict with the constitutional grant of jurisdiction. See Ex parte Minor, 115 Tex.Crim. 634, 27 S.W.2d 805, 806-07 (1930); Ex parte Firmin, 60 Tex.Crim. 222, 131 S.W. 1116, 1117 (1910) (op. on reh'g); Ex parte Davis, 947 S.W.2d 216, 223 (Tex.Cr.App.1996) (McCormick, P.J., concurring) (maj.op.).

A.

Article V, Section 5, of the Texas Constitution, sets out this Court's subject matter jurisdiction. The general grant of appellate jurisdiction for the Court of Criminal Appeals is set out in the first paragraph of Section 5 which provides that this Court shall have final appellate jurisdiction "in all criminal cases" with "such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law."¹

The State argues that this Chapter 64 DNA appeal is not a "criminal case" because appellant "has not been found guilty of anything and no punishment has been assessed." The Legislature enacted Chapter 64 as part of the Code of Criminal Procedure. A Chapter 64 proceeding is closely connected to, and could affect, a conviction and sentence assessed to a criminal defendant in a criminal case. Like a bail bond forfeiture proceeding, this Chapter 64 proceeding is a "criminal case" because it "is too closely connected" with the criminal case in which appellant was convicted and received the death penalty. See generally Jeter v. State, 86 Tex. 555, 26 S.W. 49, 49-50 (1894) (bail bond forfeiture proceeding is "criminal case" in part because the criminal case for which the bond is given "is too closely connected with the [bail bond] to be separable from it").²

The State relies on various cases which we find distinguishable primarily because unlike this case, these cases did not involve a statute that specifically authorized an appeal.³ These cases apparently would have been decided differently had there been such a statute. These cases, therefore, appear to merge the constitutional question of what constitutes a "criminal case" under Section 5 with the question of whether an appeal is authorized by statute.⁴

For example, Paprskar decided that a proceeding to expunge arrest records was not a criminal case in part because there were no "criminal penalties" attached to the proceeding and it was not brought "by or in the name of the State and the persons against whom the action was brought [were] not charged with having committed a crime or violated any penal statute." See Paprskar, 573 S.W.2d at 528. Paprskar further noted that the expungement of arrest records proceeding did not "fall within the standard definition of a criminal matter" and that "the fact that the statutory basis of this action is contained in the Code of Criminal Procedure" did not make it a "criminal case." See id. Paprskar, however, also rested its decision on the lack of either "constitutional [or] statutory authority" that authorized an appeal. See id. As previously noted, it appears that Paprskar would have been decided differently had there been a statute authorizing the appeal.

We also take note of two other cases cited in the State's brief. In Bretz v. State, this Court, summarily and without discussion, decided that Section 5 did not authorize an appeal from a trial court's order under Article 47.02, Texas Code of Criminal Procedure,⁵ denying the defendant's application for restoration of certain property after the defendant was acquitted for receiving and concealing stolen property. See Bretz v. State, 508 S.W.2d 97, 98 (Tex.Cr.App.1974) (nothing in criminal case to appeal after defendant's acquittal). We also note that in Bretz there was no statute authorizing the appeal.

And, in Hardin v. State, this Court decided that a defendant's appeal from a jury's findings in a criminal case that the defendant was sane at the time of the offense but insane at the time of trial was not a "criminal case" because the accused had not been "found guilty of anything, and no punishment ha[d] been assessed." See Hardin v. State, 157 Tex.Crim. 283, 248 S.W.2d 487, 487 (1952).⁶ Hardin, however, relied on Griffin v. State which decided that a defendant's appeal from a pretrial order finding him competent to stand trial was not a "criminal case" because it did not amount to a "conviction of an offense" and there was neither "constitutional provision nor statutory authority" authorizing the appeal. See Griffin v. State, 29 S.W.2d 349, 350 (Tex.Cr.App. 1930). Hardin, therefore, relied on a case which may have been decided differently had there been a statute authorizing the appeal.

This Chapter 64 DNA appeal arguably is not a "criminal case" under cases such as Hardin, because appellant has not been "found guilty of anything, and no punishment has been assessed."⁷ The overriding principle to be gleaned from all of these authorities, however, is that this Court will entertain an appeal when it is expressly authorized by statute and when it is related to the "standard definition" of a criminal case.⁸

We have not found any case, and the State cites none, where this Court has not entertained an appeal in such a case. And, we have found at least one case where this Court has entertained an appeal unauthorized by statute in a proceeding that does not fit Hardin's definition of "criminal case." See White, 591 S.W.2d at 853-54; Jackson, 548 S.W.2d at 689-90. We also note that accepting the State's claim that we should apply Hardin's definition of "criminal case" would call into question our jurisdiction to review most of the matters that the State may appeal pursuant to Article 44.01, Texas Code of Criminal Procedure, since these matters do not involve a situation where an accused has been found guilty of something and punishment has been assessed. We hold that a Chapter 64 DNA proceeding is a "criminal case" for Section 5 purposes.

B.

The State also argues that even if this Chapter 64 DNA appeal is a "criminal case," this appeal lies in a court of appeals under the second paragraph of Section 5 which provides that the appeal "of all [non-death penalty] criminal cases" shall be to the courts of appeals.⁹ This argument, however, fails to give effect to the first paragraph of Article V, Section 6, of the Texas Constitution, which provides that the courts of appeals shall have appellate jurisdiction "under such restrictions and regulations as may be prescribed by law."¹⁰ This "under such restrictions and regulations as may be prescribed by law" language in the first paragraph of Section 6 empowered the Legislature to make a Chapter 64 DNA proceeding appealable here. Compare Davis, 947 S.W.2d at 223 (discussing legislature's constitutional power to "regulate" this Court's original habeas corpus jurisdiction).

II. Statutory Jurisdiction

Article 64.03(a), Texas Code of Criminal Procedure, states:

(a) A convicting court may order forensic DNA testing under this chapter only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; and

(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence that:

(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and

(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

(Emphasis Supplied).

Article 64.05, Texas Code of Criminal Procedure, states:

An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.

(Emphasis Supplied).

The record reflects that the convicting court's order denying appellant's motion for DNA testing contains two "conclusions of law" that appellant failed to establish the two Article 64.03(a)(2) requirements. Appellant challenges these conclusions of law in this appeal.

The State, however, argues that this...