Robert Whitfield v. State

Opinion

Opinion issued June 6, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00081-CR ——————————— ROBERT WHITFIELD, Appellant V. THE STATE OF TEXAS, Appellee

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

* The Texas Supreme Court transferred this appeal from the Court of Appeals for the Tenth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). OPINION

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. See TEX. 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 Holloway v. State, 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 also TEX. 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

2 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.

Michael Massengale Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting

Publish. TEX. R. APP. P. 47.2(b).