Whitfield v. State

• Decision Date: 06 June 2013
• Docket Number: No. 01–12–00081–CR.,01–12–00081–CR.
• Citation: 409 S.W.3d 11
• Parties: Robert WHITFIELD, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

409 S.W.3d 11

Robert WHITFIELD, Appellant

v.The STATE of Texas, Appellee.

No. 01–12–00081–CR.

Court of Appeals of Texas, Houston (1st Dist.).

June 6, 2013.

On Appeal from the 87th District Court, Freestone County, Texas, Trial Court Case No. 9397B.^*

E. Alan Bennett, Sheehy, Lovelace & Mayfield, PC, Waco, TX, for Appellant.

Christopher E. Martin, Freestone County Attorney, Ryan Palmquist, Assistant County Attorney, Fairfield, TX, for Appellee.

Panel consists of Justices KEYES, MASSENGALE, and BROWN.

OPINION

MICHAEL MASSENGALE, Justice.

Appellant Robert Whitfield has filed an appeal solely challenging the trial court's finding under article 64.04 of the Texas Code of Criminal Procedure that it was not reasonably probable that he would not have been convicted if the results of DNA testing had been available during his trial. SeeTex.Code Crim. Proc. Ann. art. 64.04 (West Supp.2012). He contends that there was insufficient evidence supporting the trial court's finding. We dismiss the appeal for lack of jurisdiction.

The Court of Criminal Appeals held in State v. Holloway, 360 S.W.3d 480 (Tex.Crim.App.2012), that a court of appeals should not address questions of the sufficiency of the evidence to support a trial court's finding under article 64.04. The Court held that because a writ of habeas corpus is only way to obtain postconviction relief based on DNA testing, any opinion of a court of appeals reviewing a trial court's findings under article 64.04 would be advisory. We lack jurisdiction to render advisory opinions. Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991); Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex.Crim.App.1988); see alsoTex. Const. art. II, § 1.

We are not persuaded by the dissent's attempt to distinguish Holloway on the reasoning that it involved the State's appeal from a ruling in favor of the convicted person. The State is expressly authorized to appeal from an order issued under Chapter 64. Tex.Code Crim. Proc. Ann. arts. 44.01(a)(6), 64.05. If the review of an article 64.04 finding is advisory on the State's direct appeal, it is also advisory when the appeal arises from a finding adverse to the Chapter 64 movant.

Accordingly, following the holding of the Court of Criminal Appeals in Holloway, we dismiss the appeal.

Justice KEYES, dissenting.

EVELYN V. KEYES, Justice, dissenting.

I respectfully dissent. A jury convicted appellant, Robert Whitfield, of rape in 1981 and assessed punishment at fifteen years' confinement. In 2007, Whitfield moved for post-conviction DNA testing. SeeTex.Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp.2012). The majority holds that, pursuant to the Court of Criminal Appeals' opinion in State v. Holloway, 360 S.W.3d 480 (Tex.Crim.App.2012), this Court lacks jurisdiction to review the sufficiency of the evidence supporting a trial court's finding concerning the results of the DNA testing, and it dismisses the appeal. I disagree.

The majority's holding does not properly apply the reasoning in Holloway and has the effect of making a trial court's finding under Code of Criminal Procedure article 64.04 unreviewable by the courts of appeals. The majority thus unilaterally repeals article 64.05, which provides that an appeal under Chapter 64 “is to a court of appeals in the same manner as an appeal of any other criminal matter ....” Tex.Code Crim. Proc. Ann. art. 64.05 (Vernon 2006). The majority opinion also abrogates the entire body of appellate case law reviewing the rulings of trial court judges under article 64.04 without authorization from any statute or higher court.

Texas Rule of Appellate Procedure 47.1 requires that Texas courts of appeals decide every issue properly raised and necessary to final disposition of the appeal. Tex.R.App. P. 47.1. I would hold that this Court has jurisdiction to review questions concerning whether sufficient evidence supports a trial court's finding that DNA test results are unfavorable to a defendant and that, in this case, sufficient evidence supports the trial court's finding that the DNA test results were not favorable to Whitfield. I would, therefore, decide the case on the merits of the issue before the Court, and I would affirm.

Background

A jury convicted Whitfield and two other men of rape in 1981 and assessed punishment at fifteen years' confinement. After his release, Whitfield was subsequently incarcerated for failing to register as a sex offender. In 1997, the rape kit from the original offense was destroyed as part of routine evidentiary disposal procedures. In 2007, Whitfield moved for post-conviction DNA testing under Code of Criminal Procedure Chapter 64. SeeTex.Code Crim. Proc. Ann. art. 64.01.05 (Vernon 2006 & Supp.2012). In April 2009, Brandi Mohler, a forensic scientist with the Texas Department of Public Safety, completed the testing on the evidence that was still available. The trial court held a hearing on the results of this testing on October 20, 2011.

At the hearing, Mohler testified concerning her examination of the evidence collected in the underlying case. The evidence submitted for DNA testing consisted of eight hairs taken from the complainant, from her clothing, and from the three defendants, including Whitfield. Mohler did not analyze four of the hairs because the identities of the contributors of those hairs were known. Mohler extracted DNA samples from a hair known to come from the complainant, a hair from the complainant's underwear, a hair found on the complainant's shirt, and a hair from the underwear of one of Whitfield's co-defendants.

Mohler obtained a partial DNA profile from the hair found on the complainant's shirt, and she determined that this hair, which previously had been unidentified, was consistent with the complainant's known DNA profile. Neither of the other two unidentified hairs was able to be identified from this testing. Mohler testified that she could not obtain a DNA profile from the hair on the complainant's underwear or from the hair on the co-defendant's underwear, and she stated that there may not have been enough DNA present on the hairs to obtain a profile. Mohler concluded that she did not believe that any further testing would yield a different result.

In its findings of fact and conclusions of law, the trial court found that the DNA testing results did not exonerate Whitfield. The court concluded that “[t]he Defendant's lack of DNA is not enough to call identification of the complainant into issue” and that it is not reasonably probable that Whitfield would not have been convicted if the DNA testing results had been available at his trial. Whitfield then timely appealed this unfavorable finding.

Overview of Code of Criminal Procedure Chapter 64

Code of Criminal Procedure Chapter 64 sets out the process for a “convicted person” to obtain post-conviction DNA testing of biological evidence. SeeTex.Code Crim. Proc. Ann. art. 64.01–.05; Holloway, 360 S.W.3d at 483. A convicted person may request forensic DNA testing of evidence that was gathered in relation to the underlying offense and that was in the possession of the State during the original trial if the evidence (1) was not previously subjected to DNA testing or (2) was previously subjected to testing, but can be subjected to newer testing techniques. SeeTex.Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp.2012); Holloway, 360 S.W.3d at 483. To obtain testing, the movant must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing and that identity was an issue in the case, among other things. Tex.Code Crim. Proc. Ann. art. 64.03(a); Holloway, 360 S.W.3d at 483.

If the convicting court grants a motion for DNA testing, the court must hold a hearing following receipt of the test results. Tex.Code Crim. Proc. Ann. art. 64.04 (Vernon Supp.2012); Holloway, 360 S.W.3d at 484. The trial court must then make a finding “as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Tex.Code Crim. Proc. Ann. art. 64.04; Holloway, 360 S.W.3d at 484.Article 64.05 provides that an appeal under Chapter 64 “is to a court of appeals in the same manner as an appeal of any other criminal matter....” Tex.Code Crim. Proc. Ann. art. 64.05.

Appellate Jurisdiction

The majority holds, on the basis of the Texas Court of Criminal Appeals' opinion in Holloway, that a court of appeals lacks jurisdiction to address questions concerning the sufficiency of the evidence to support a trial court's article 64.04 finding because the only way to obtain post-conviction relief based on DNA testing is via a writ of habeas corpus. Slip Op. at 2–3. I disagree with the majority's reading of Holloway and would hold that we have jurisdiction to review a trial court's finding that DNA testing results are not favorable to a defendant.

In Holloway, the defendant moved the convicting court to require DNA testing of “presumptive blood” found on the knife that had been admitted at trial as the murder weapon. 360 S.W.3d at 481. DNA testing subsequently revealed that the biological material on the knife did not belong to the complainant. Id. The convicting court then granted Holloway a new trial. Id. The State appealed and the Texarkana Court of Appeals held that, under Chapter 64, the convicting court lacked jurisdiction to grant Holloway a new trial and that the evidence did not support the trial court's favorable finding. Id. at 481–82.

In affirming, the Court of Criminal Appeals noted that, although Chapter 64 mandates that the trial court hold a hearing and make a finding concerning the significance of DNA testing results, it does not expressly provide for the convicting court to engage in any remedial action based on that finding. Id. at 486–87.Article 64.04, therefore, authorizes only a finding. Id. at 487. The court reasoned that the plain language of article 64.04 ...