



Death Opinion













IN THE COURT OF CRIMINAL APPEALS

OF TEXAS






NO. PD-0865-13


 ROBERT WHITFIELD, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

FREESTONE COUNTY


 Alcala, J., filed a concurring opinion in which Johnson and Cochran, JJ.,
joined.

CONCURRING  OPINION


 I respectfully concur in the Court's judgment reversing the court of appeals's
dismissal of the appeal filed by Robert Whitfield, appellant, and remanding the case for
consideration on the merits of whether the evidence supports the convicting court's finding
that DNA results are unfavorable to him.  See Whitfield v. State, 409 S.W.3d 11, 11 (Tex.
App.--Houston [1st Dist.] 2013).  Like the majority opinion, I conclude that the court of
appeals has statutory jurisdiction to address appellant's complaint under Chapter 64 of the
Texas Code of Criminal Procedure, which provides that an "appeal under this chapter is to
a court of appeals in the same manner as an appeal of any other criminal matter."  See Tex.
Code Crim. Proc. Ann. art. 64.05 (West 2011).  This conclusion, however, does not fully
resolve the issue before us in this case because the court of appeals did not dismiss
appellant's complaint based on a perceived lack of statutory jurisdiction.  Rather, relying on
this Court's opinion in State v. Holloway, it held that it lacked jurisdiction on the basis that
any opinion reviewing the trial court's finding under Chapter 64 would be advisory only.  See
Whitfield, 409 S.W.3d at 11 (citing State v. Holloway, 360 S.W.3d 480 (Tex. Crim. App.
2012)).  The majority opinion does not directly address this key aspect of the lower court's
holding, nor does it otherwise address, in any detail, the issue of whether appellate review
of a convicting court's Chapter 64 finding would result in an impermissible advisory opinion. 
Instead, it summarily overrules Holloway, in which this Court held that a court of appeals
would err to address a State's appeal of fact findings favorable to a convicted person because
any opinion on the merits of the DNA finding would result in an advisory-only opinion. 
Holloway, 360 S.W.3d at 490.  The majority opinion reasons that Holloway should be
overruled in light of the legislative intent to grant the courts of appeals the authority to
review a trial court's findings under the DNA statute.  Although I agree with the majority
opinion's conclusion that Holloway was mistaken in its holding, I do not find that the
existence of a legislative intent to permit an appeal is necessarily dispositive of the question
whether an opinion by an appellate court reviewing such a finding would nevertheless be
advisory.  See id.
	Because I determine that the majority opinion's analysis leaves unanswered several
key questions with respect to the issue of advisory opinions under Chapter 64, I conduct an
independent analysis of that matter below.  I conclude that, regardless of whether the
appellant is the convicted person or the State, an opinion by a court of appeals reviewing a
trial court's finding that DNA results are either favorable or unfavorable to a convicted
person does not constitute an impermissible advisory opinion because (1) appellate review
of the trial court's Chapter 64 finding in no way infringes upon this Court's exclusive
habeas-corpus jurisdiction, and (2) any resulting opinion from a court of appeals is not
advisory-only in that it is final and binding on the parties.  After conducting a comprehensive
extra-textual analysis of the statute in Part I, I consider the matter of advisory opinions in Part
II.
I. Legislature Intended to Give Parties Right to Appeal Finding Under Chapter 64
	I agree with the majority opinion's determination that the Chapter 64 provision
providing for a right of appeal is ambiguous with respect to what matters are appealable
under the statute, and I further agree with its ultimate conclusion that the Legislature
intended to make a trial court's finding under the statute appealable.  But I do not join the
majority opinion's statutory analysis because it reaches its conclusion after considering only
one sentence in the statute's legislative history, rather than after considering all of the
applicable extra-textual factors.  After considering all of the pertinent extra-textual factors,
I conclude, consistent with the majority opinion's holding, that the Legislature intended to
grant the parties the right to appeal a convicting court's finding made under Chapter 64.

	A. Analysis of Extra-Textual Factors 

	As the majority opinion observes, the language of the Chapter 64 provision that grants
a right of appeal is ambiguous in that it fails to expressly identify which matters may be
appealed under that statute.  See Tex. Code Crim. Proc. art. 64.05.  When reviewing
ambiguous statutory language, this Court properly resorts to an analysis of extra-textual
factors to discern what the Legislature would have intended in drafting that language. See
Johnson v. State, 423 S.W.3d 385, 394-95 (Tex. Crim. App. 2014); see also Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991); Ex parte Valdez, 401 S.W.3d 651, 655 (Tex.
Crim. App. 2013).  In conducting an extra-textual inquiry, this Court may consider, among
other matters, (1) the object sought to be attained, (2) the title, (3) former statutory
provisions, including laws on the same or similar subjects, (4) the circumstances under which
the statute was enacted, (5) legislative history, and (6) the consequences of a particular
construction.  See Tex. Gov't Code  § 311.023; see also Druery v. State, 412 S.W.3d 523,
533-34 (Tex. Crim. App. 2013). (1)  I address each of the relevant factors below.
 (1) Object Sought to Be Attained and (2) Title
 By examining the various provisions contained within Chapter 64, I conclude that the
statutory scheme advances primary and secondary objectives.  Furthermore, I conclude that
those objectives are consistent with a legislative intent to make all matters under the DNA
statute appealable, including the trial court's finding that DNA test results are favorable or
unfavorable to a convicted person.  See Tex. Code Crim. Proc. arts. 64.04, 64.05.
	As the State argues in its brief on discretionary review, the primary object sought to
be attained by Chapter 64 is the establishment of a procedure by which a convicted person
may obtain DNA testing for the purpose of challenging the validity of his conviction. 
Specifically, Chapter 64 grants the convicting court the authority to order post-conviction
DNA testing where the identity of the culprit was or is an issue in the case.  See State v.
Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (observing that, "prior to the enactment
of Chapter 64, [] trial court[s] would not have had jurisdiction to enter any order relating to
post-conviction DNA testing").  In response to a motion for DNA testing, Chapter 64, which
is titled "Motion for Forensic DNA Testing," clearly sets forth the criteria for the convicting
court to consider before ordering the testing.  See Tex. Code Crim. Proc. art. 64.03(a).  A
convicting court should order DNA testing if (1) the evidence still exists; (2) it is in a
condition making DNA testing possible; (3) it was subjected to a chain of custody sufficient
to establish that it has not been substituted, tampered with, replaced, or altered in any
material respect; (4) identity was or is an issue in the case; (5) the convicted person
establishes by a preponderance of the evidence that he would not have been convicted if
exculpatory results had been obtained through DNA testing; and (6) the request for the
proposed DNA testing is not made to unreasonably delay the execution of the sentence or
administration of justice.  Id.  This Court has described the type of situation that would
require DNA testing under Chapter 64 as one in which the identity of the attacker could be
established by testing his DNA left on the victim, as follows:
	Appellant's 2005 motion for DNA testing has fairly alleged, and shown by a
preponderance of the evidence, that the victim's lone attacker is the donor of
the material for which appellant seeks DNA testing.  Thus, on this record,
exculpatory DNA test results, excluding appellant as the donor of this material,
would establish appellant's innocence.  The legislative history of Chapter 64
of the Texas Code of Criminal Procedure very clearly shows that this is
precisely the situation in which the Legislature intended to provide post-conviction DNA testing.

Blacklock v. State, 235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007).  The primary objective
of permitting DNA testing is further served by the requirement that the convicting court must
appoint counsel under certain circumstances to assist an indigent convicted person in his
pursuit of DNA testing.  See Tex. Code Crim. Proc. art. 64.01(c) (court must appoint
counsel "if the person informs the court that the person wishes to submit a motion under this
chapter, the court finds reasonable grounds for a motion to be filed, and the court determines
that the person is indigent"). 
	Although it does not appear to be its primary objective, Chapter 64 clearly has a
secondary objective in that it directs the convicting court to evaluate the results of the testing. 
First, the trial court must hold a hearing on the test results.  See id. art. 64.04. (2)  After the
hearing, the statute requires the trial court to make a finding as to whether the results are
favorable or unfavorable to the convicted person.  Id.  Article 64.04 states, 
	Finding.  After examining the results of testing under Article 64.03 and any
comparison of a DNA profile under Article 64.035, the convicting court shall
hold a hearing and 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.

Id. (3)
	Although Chapter 64 has both primary and secondary objectives, the State argues that
the right of appeal should be limited only to the statute's primary objective, that is, whether
the trial court grants or denies a request for DNA testing.  But there is nothing in the
language of the statute that suggests it should be narrowly construed to apply only to the
primary objective of providing for DNA testing.  See id. art. 64.05 (providing for right of
"appeal under this chapter," and stating that such an appeal is "to a court of appeals in the
same manner as an appeal of any other criminal matter").  Rather, in light of the absence of
any language that would limit the right of appeal to any particular objective or subpart of
Chapter 64, the statutory objectives appear to indicate that the Legislature intended to grant
a broad right of appeal that encompasses all the matters discussed in the statute.
 (3) Former Statutory Provisions and Laws on Same or Similar Subjects

 I conclude that the Legislature's amendment of the former statutory provision to
expressly remove any reference to the appealability of a "finding" indicates that the
Legislature intended to broaden the scope of what would constitute an appealable matter
under the statute.   I further conclude that the Legislature amended the appeals provision in
direct response to this Court's holding that the statutory language was ambiguous in Kutzner
v. State, 75 S.W.3d 427, 429 (Tex. Crim. App. 2002).  Both of these factors lead me to
conclude that the Legislature intended to create a broad right of appeal under Chapter 64 that
would encompass all the matters described in Chapter 64.
		a.  Analysis of Former Statutory Language
	As initially enacted in 2001, Article 64.05, which established a right of appeal under
Chapter 64, stated, "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."  See Act of Apr. 3, 2001, 77th
Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex.
Code Crim. Proc. Ann. art. 64.05 (West 2011)).  In Kutzner, this Court determined that this
statutory language was ambiguous and considered extra-textual factors to determine what the
Legislature intended by this language.  See Kutzner, 75 S.W.3d at 433.  Although the former
appeals statute had narrowly referred to "a finding" under Article  64.03 or 64.04 as being
appealable, this Court nevertheless held that it had jurisdiction on direct appeal to address
all of the "determinations" made by the trial court under those specific articles.  Id. at 433-35;
see also Neveu v. Culver, 105 S.W.3d 641, 643 (Tex. Crim. App. 2003) (stating that prior
version of Article 64.05 provided for appealing a finding under Articles 64.03 or 64.04). This
Court explained in Kutzner, "Our review of the legislative history of Chapter 64 actually
supports deciding that the Legislature intended to authorize appellate review of all of the
convicting court's Article 64.03 determinations [appeals of orders for tests]."  Kutzner, 75
S.W.3d at 434. 
 b. Analysis of Current Statute
	Following this Court's decision in Kutzner, the Legislature amended the provision
governing the right of appeal under Chapter 64 by enacting the current version that became
effective on September 1, 2003. (4) See Tex. Code Crim. Proc. art. 64.05.  The current
version now states, 
	APPEALS. An appeal under this chapter is to a court of appeals in the same
manner as an appeal of any other criminal matter, except that if the convicted
person was convicted in a capital case and was sentenced to death, the appeal
is a direct appeal to the court of criminal appeals.

Id.  The current version omits the former version's reference to a "finding under Article
64.03 or 64.04" and replaces that language with the phrases "under this chapter" and "in the
same manner as an appeal of any other criminal matter."  Id.  Subsequent to the Legislature's
amendment, this Court in Wolfe v. State analyzed the meaning of the changes from the
former to the current version of the statute. See Wolfe v. State, 120 S.W.3d 368, 372 n.5 (Tex.
Crim. App. 2003) (holding that appellate court lacked jurisdiction under Chapter 64 to review
Wolfe's complaint that he was not appointed an independent expert to review DNA results). 
This Court concluded that, by deleting the reference to the appealability of a "finding" and
replacing it with a generic reference to an appeal "under this Chapter," the Legislature had
effectively "broaden[ed] the scope of Chapter 64 to include appeals not previously
permitted."  Id.  The amended statute, it reasoned, appeared to extend the scope of appeals
to "include issues pertaining to all Articles of Chapter 64."  Id.  Other courts have echoed this
interpretation of the legislative amendment.  See Reger v. State, 222 S.W.3d 510, 513 (Tex.
App.--Fort Worth 2007, pet. ref'd); James v. State, 196 S.W.3d 847, 849  (Tex.
App.--Texarkana 2006, no pet.). 
	This Court in Wolfe, however, failed to discuss what the Legislature may have
intended by adding the phrase "in the same manner as an appeal of any other criminal matter"
into the current version.  See Tex. Code Crim. Proc. art. 64.05.  The use of the word
"criminal" signifies that the appeal is to be treated as a criminal matter rather than as a civil
matter.  Furthermore, the phrase "in the same manner" suggests that the appeal is intended
to conform to the Texas Rules of Appellate Procedure for criminal cases and the
requirements in the Texas Code of Criminal Procedure. (5)  Addressing this aspect of the
statutory language in its brief on discretionary review, the State argues that this "in the same
manner" language could potentially be interpreted to grant a convicted person a right of
appeal not afforded to the State.  It observes that the Code of Criminal Procedure limits the
State's right of appeal under Chapter 64 to an "order" issued under that Chapter.  See id. art.
44.01(a)(6) ("State is entitled to appeal an order of a court in a criminal case if the order: .
. . is issued under Chapter 64." ).  Although the State argues that it would be inequitable to
permit a convicted person the right to appeal a trial court's finding under the DNA statute if
such an appeal is not permitted when brought by the State, I conclude that the State's
concerns in this regard are unjustified.  The record before us indicates that the convicting
court's finding that DNA results were unfavorable to appellant was included within a
document entitled "Order On Findings of Fact and Conclusions of Law After 64.04
Hearing."  But regardless of how these particular findings of fact were labeled, this Court has
often said that we apply the law by focusing on substance over form so that we treat a matter
based on what it is rather than how it is named. Furthermore, the word "order" is undefined
in Chapter 64 and Article 44.01.  See id. arts. 44.01(a)(6), 64.01-64.05.  At a minimum, this
Court has held that, for purposes of a State's appeal, an order must be in writing and signed
by the judge.  State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 2012).  Beyond
these requirements, there are few limitations on what may be considered an order of the
court, as long as the information conveyed in the writing directs someone to do something
or not to do something, or legally establishes something.  Here, the trial court's order legally
established its finding that the DNA results were unfavorable to appellant.  I, therefore, am
persuaded that the trial court's findings of fact and conclusions of law in this case are
properly characterized as an order issued under Chapter 64.  See Tex. Code Crim. Proc. art.
44.01(a)(6).   Under the related provisions in the Code, therefore, both the appellant and the
State appear to have a right of appeal as to the convicting court's fact findings on DNA
results.
	I conclude that the amendment to the former version of the Chapter 64 appeals
provision indicates a legislative intent to more broadly permit an appeal "under this chapter"
as long as the appeal conforms to pertinent appellate rules and the criminal Code.  See id.
arts. 44.01, 64.05.
 (4)  The Circumstances Under Which the Former Statute Was Enacted
	The circumstances under which Article 64.05 was originally enacted in 2001 show
that the Legislature intended at that time to give the parties the right to appeal both (1) the
convicting court's ruling granting or denying DNA testing and, (2) if testing was conducted,
its finding on the results of the testing.  See id. arts. 64.03-64.05.  Referring to a bill analysis
from the House Research Organization, this Court in Kutzner explained that Chapter 64, as
originally introduced, had not provided for any right of appeal, but the bill was later amended
to authorize "[a]ppeals of orders for tests [under Article 64.03] or of findings about test
results [under Article 64.04]."  Kutzner, 75 S.W.3d at 434; see Senate Research Center, Bill
Analysis, Tex. S.B. 3, at 4, 77th Leg., R.S. (Jan. 25, 2001) (bill on DNA law initially failed
to provide for any appeal when it was introduced); Senate Research Center, Bill Analysis,
Tex. C.S.S.B. 3, at 5, 77th Leg., R.S. (Feb. 13, 2001) (right to appeal introduced in Senate
Bill 3 that related "to the appeal of findings under proposed Article 64.04, Code of Criminal
Procedure").  I conclude that the circumstances under which Chapter 64's appeals provision
was originally enacted show that the Legislature intended to permit the type of appeal at issue
in this case, namely, an appeal challenging the sufficiency of the evidence to support the trial
court's finding that DNA testing is unfavorable to the convicted person.  
 (5) The Legislative History  
	Appellant contends that the change in the language from the former version to the
current version of the Chapter 64 appeals provision shows that the Legislature intended to
expand rather than restrict the scope of appealable matters under that statute.  Agreeing with
appellant's representation of the legislative history, this Court's majority opinion states,
	The bill analysis provided by the House Committee on Criminal Jurisprudence
at the time of the 2003 amendments said, "[This bill] makes it clear that both
the request for a test (based on legal or factual determinations) and the findings
by the trial court are appealable."	

Although I agree with both appellant and this Court's majority opinion as to that ultimate
assessment about the legislative history, I consider the entire legislative history to reach my
conclusion rather than focus on a single sentence in the bill analysis.
	The current version of the statute describing the right of appeal under Chapter 64 was
introduced in 2003 through an amendment as House Bill 1011 in the Texas House of
Representatives.  According to the bill's author, Representative Hochberg, who described the
bill at the hearing before the House Criminal Jurisprudence Committee, the bill supporting
the current version of the law was attempting to clarify what had been originally enacted
rather than to expand the law.  Hochberg said that the bill was "strictly cleanup" and "doesn't
attempt to add anything, [but] attempts to clarify what was intended in the first place," which
was necessary because various court rulings had departed from what had been the original
intent of the legislators who enacted the law.  See Hearing on Tex. H.B. 1011 Before the
House Criminal Jurisprudence Committee, 78th Leg., R.S. (Mar. 11, 2003) (digital files
available from http://www.house.state.tx.us/video-audio/committee-broadcasts/78/).  With
respect to the current version's deletion of the phrase "a finding under Article 64.03 or
64.04" and addition of the phrase "under this chapter," Representative Hochberg asserted that
the change was necessary to clarify that an appeal was not limited to a finding by the trial
court.  Id.  He related that appeals could be presented as to determinations of law in addition
to factual findings.  Id.  Furthermore, with respect to the current version's addition of the
phrase "in the same manner as an appeal of any other criminal matter," Representative
Hochberg explained that the language was intended to clarify that the case was to be handled
similarly to the appeal of a criminal pre-trial motion rather than as a civil appeal.  Id.  He
stated,
	[T]here was actually a question raised in the Kutzner case as to whether this
was a civil appeal, as to whether this motion was a civil matter or whether it
was a criminal matter and exactly who had the right to appeal and when. This
clarifies that as well.	

Id. (discussing Kutzner, 75 S.W.3d at 429).
	In its bill analysis, the House Committee clarified that, in light of "some confusion in
Kutzner as to what sections under the law could be appealed," the amendment from the
former version to the current version was intended to clarify that the right of appeal would
extend to all aspects of orders granting or denying DNA testing, as well as to the trial court's
finding under Article 64.04 regarding whether DNA test results were favorable or
unfavorable.  See House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1011,
at 2, 78th Leg., R.S. (2003); see Kutzner, 75 S.W.3d at 433-35.  The Committee noted that
the amendment "makes it clear that both the request for a test . . . and the findings by the trial
court are appealable."  Id.  Additionally, the Committee observed that the bill "giv[es] the
prosecution the right to appeal."  Id.  A subsequent bill analysis noted that the bill "would
eliminate the language limiting to 'findings' what can be appealed under Chapter 64."  House
Research Organization, Bill Analysis, Tex. H.B. 1011, at 2, 78th Leg., R.S. (2003).
	A companion bill identical to House Bill 1011, Senate Bill 543, was introduced in the
Texas Senate by Senator Duncan, who was the original author of Senate Bill 3 in 2001,
which passed Chapter 64 into law.  See Senate Research Center, Bill Analysis, S.B. 543, 78th
Leg., R.S., at 1 (Mar. 19, 2003).  In a hearing before the Senate Committee on Criminal
Justice, Senator Duncan testified that Chapter 64 was intended to be "a post-trial procedure
. . . different from habeas corpus."  Hearing on Tex. S.B. 543 Before the Senate Criminal
Justice Committee, 78th Leg., R.S. (Mar. 19, 2003) (digital files available from Senate Staff
Services Office).   Senator Duncan explained the changes in the former version of the bill to
the current version similarly to the explanation provided by Representative Hochberg.  The
House later adopted several amendments to the bill unrelated to the right of appeal, and the
amended bill was passed without further change by the House and Senate.
	Although it may be questioned whether the Legislature intended to grant a right of
appeal as to interim orders issued under Chapter 64, such as whether to appoint counsel for
an indigent person, the legislative history clearly shows that the Legislature always intended
to permit an appeal of the trial court's order making a finding as to whether DNA test results
are favorable or unfavorable to a convicted person. (6)  Furthermore, the legislative history
definitively reflects an intent to grant the State the right of appeal as to a convicting court's
orders under Chapter 64. (7)
 (6) The Consequences of a Particular Construction
	Consistent with the legislative history described above, the Court today holds that a
court of appeals is authorized to review a convicted person's complaint that the evidence is
insufficient to support the trial court's finding that DNA results are unfavorable to him. 
Although the facts of this case involve an unfavorable finding, the Court's holding would
also apparently authorize an appellate court to review a trial court's finding that DNA test
results are favorable to a convicted person.  By permitting a direct appeal of favorable or
unfavorable findings, the practical consequence will likely be a delay in any ultimate post-conviction relief that a convicted person may seek through a writ of habeas corpus in this
Court.  If this Court decides to delay consideration of an application for a writ of habeas
corpus based on a trial court's favorable finding under the DNA statute until after the
exhaustion of direct appeals under Chapter 64, then the following seven steps will likely
occur:
	1. A convicted person files a motion for DNA testing and, if appropriate, the
trial court grants the DNA testing.

	2. After receiving DNA results, the convicting court holds a hearing to
determine whether the results of the DNA tests would make it reasonably
probable that the person would not have been convicted had the results been
available during the trial of the offense.

	3.  The convicting court will make a finding that is favorable or unfavorable
to the convicted person.

	4. If the finding is favorable to the convicted person, the State files a notice of
appeal to challenge the finding, but if the finding is unfavorable, the convicted
person files a notice of appeal to challenge the finding.

	5. On appeal, the court of appeals reviews the sufficiency of the evidence
supporting the convicting court's finding under the statute and (a) affirms the
finding, (b) reverses and renders the finding, or (c) reverses and remands for
further findings by the convicting court.   

	6.  The losing party at the court of appeals may file a petition for discretionary
review with this Court and this Court would either reject or accept it and
resolve the direct appeal on its merits.
 
	7. After the direct appeals are exhausted, the convicted person could file an
application for a writ of habeas corpus asserting either that (a) his favorable
findings in the convicting court warrant a grant of post-conviction relief, or (b)
his unfavorable findings are unsupported by the evidence and that this Court,
as the ultimate fact finder on a writ of habeas corpus, is not bound by the
convicting court's decision and should grant him relief from his conviction.  
Because of steps four, five, and six that become applicable when a party proceeds with a
direct appeal from the trial court's findings under the DNA statute, resolution of the direct
appeal would result in some delay that could last months and possibly years before a
wrongfully convicted person could obtain post-conviction relief through an application for
a writ of habeas corpus.  If the appeals process were to cause great delay, then it would likely
violate the Texas Constitution's decree stating, "The writ of habeas corpus is a writ of right,
and shall never be suspended.  The Legislature shall enact laws to render the remedy speedy
and effectual."  Tex. Const. art. I, § 12.  Nonetheless, as long as the court of appeals and this
Court expedite any appeals of a trial court's findings under Chapter 64, then any delay from
a direct appeal could be minimized so as not to conflict with the Texas Constitution's
guarantee of a speedy and effectual writ process.  See id. (8)
	Although there is nothing in Chapter 64 or the Habeas Corpus statute that requires this
Court to delay consideration of an application for a writ of habeas corpus until after the
exhaustion of direct appeals under Chapter 64, that is the only reasonable option that would
make the entire statutory scheme effective. (9)  By waiting until the direct-appeals process has
concluded before considering any application for a writ of habeas corpus that purports to rely
on exculpatory DNA results, this Court can ensure that litigants are not deprived of their
statutorily authorized right to pursue a direct appeal under Chapter 64.    
 B.  Consideration of All the Pertinent Extra-Textual Factors
	 Having conducted a de novo review of all of the relevant extra-textual factors, I
conclude that the Legislature intended for a convicted person and the State to each have the
right to appeal the trial court's findings and conclusions issued under Chapter 64.  See Harris
v. State, 359 S.W.3d 626, 629 (Tex. Crim. App. 2011) (statutory analysis requires de novo
review).  Although the legislative history indicates that the primary objective of Chapter 64
was to provide a vehicle by which a convicted person could obtain post-conviction DNA
testing, the Legislature included a secondary objective in that chapter by requiring the
convicting court to assess the meaning of the results and make a finding as to whether the
DNA test results would be favorable or unfavorable to a convicted person.  This Court's
interpretation of the former and current versions of Chapter 64's appeals provision has
consistently determined that the Legislature intended to permit an appeal of the trial court's
finding on the results of DNA testing.  Furthermore, by amending Code of Criminal
Procedure Article 44.01 to expressly grant the State a right of appeal as to orders issued by
the convicting court under Chapter 64, the Legislature has expressly indicated its intent to
permit the State to appeal the trial court's findings under the DNA statute in the same manner
as a convicted person would be permitted to appeal.  I would hold that the court of appeals
has statutory jurisdiction under Chapter 64 to address the appellant's complaint challenging
the sufficiency of the evidence to support the convicting court's finding that the DNA results
are unfavorable to him.   Id.
II.  Appeal Authorized Under Chapter 64 is Not Advisory Only	The majority opinion appears to hold that, because the appellate court had statutory
authority over the direct appeal pursuant to the provisions of Chapter 64, any resulting
opinion by the appellate court would necessarily not have been advisory.  I do not entirely
agree with that assessment because the matter of whether an appellate court's review of an
issue would result in an impermissible advisory opinion is a separate question from the
matter of whether the Legislature has statutorily authorized that court to consider an appeal. 
In light of this distinction, I examine the matter of advisory opinions and consider whether
a court of appeals's opinion reviewing a convicting court's findings under the DNA statute
would constitute a prohibited advisory opinion.  I ultimately answer this question in the
negative and, like the majority opinion, conclude that this Court's opinion in Holloway was
mistaken in reaching the opposite result.  See Holloway, 360 S.W.3d at 490.  Contrary to the
Court's reasoning in Holloway, I conclude that a court of appeals's opinion affirming or
reversing a trial court's finding under the DNA statute would neither impermissibly infringe
upon this Court's habeas jurisdiction, nor would it constitute a prohibited advisory-only
opinion.  I, therefore, agree with the conclusion reached by the majority opinion that the court
of appeals improperly dismissed appellant's appeal for want of jurisdiction. 
 A.   This Court Has Exclusive Power to Issue Writs of Habeas Corpus

 A review of the Texas constitutional and statutory law applicable to writs of habeas
corpus reveals that this Court has the exclusive authority to grant relief through a post-conviction writ of habeas corpus, although the Legislature retains the power to regulate it. 
The Texas Constitution states, 
	Subject to such regulations as may be prescribed by law, the Court of Criminal
Appeals and the Judges thereof shall have the power to issue the writ of habeas
corpus . . . .  The Court and the Judges thereof shall have the power to issue
such other writs as may be necessary to protect its jurisdiction or enforce its
judgments.  The court shall have the power upon affidavit or otherwise to
ascertain such matters of fact as may be necessary to the exercise of its
jurisdiction.

 Tex. Const. art. V, § 5.
 
	Pursuant to its constitutionally granted authority to enact laws regulating the writ
remedy, the Legislature enacted a "Habeas Corpus" statute in chapter eleven of the Texas
Code of Criminal Procedure describing court procedures that govern the availability and
scope of this Court's habeas review.  See Tex. Code Crim. Proc. arts. 11.01, et. seq.  With
respect to the procedures for felony convictions other than those in which the death penalty
was imposed, Article 11.07 requires the convicting court, upon receiving an application for
post-conviction relief, to decide whether there are controverted, previously unresolved facts
material to the legality of the applicant's confinement, and, if so, to enter an order
designating the issues of fact to be resolved.  Id. art. 11.07, §§ 3(c), (d).  To resolve those
issues, the convicting court may order affidavits, depositions, interrogatories, additional
forensic testing, and hearings, as well as using personal recollection.  Id. art. 11.07, § 3(d). 
But "additional forensic testing" under the habeas-corpus statute does not include forensic
DNA testing as provided for in Chapter 64.  Id. art. 11.07, § 3(e); compare id. art. 64.03. 
After an evidentiary hearing, the convicting court, as the original fact finder, resolves the
controverted facts by making findings of fact and then sends the writ application and the
entire record to this Court so that this Court may decide the merits of an applicant's claims
as the ultimate fact finder.  Id. art. 11.07, § 3; see Ex parte Weinstein, 421 S.W.3d 656, 664
(Tex. Crim. App. 2014) ("On post-conviction review of habeas corpus applications, the
convicting court is the 'original factfinder,' and this Court is the ultimate factfinder.").  The
Habeas Corpus statute describes this Court as having the exclusive authority to deny or grant
writs of habeas corpus after final felony conviction. Tex. Code Crim. Proc. art. 11.07, § 5;
see also Holloway, 360 S.W.3d at 490 (explaining that Legislature vested "exclusive"
jurisdiction in this Court to grant habeas relief on claim of actual innocence).  Section five
in Article 11.07 states, 
	The Court of Criminal Appeals may deny relief upon the findings and
conclusions of the hearing judge without docketing the cause, or may direct
that the cause be docketed and heard as though originally presented to said
court or as an appeal.  Upon reviewing the record the court shall enter its
judgment remanding the applicant to custody or ordering his release, as the law
and facts may justify.  The mandate of the court shall issue to the court issuing
the writ, as in other criminal cases.  After conviction the procedure outlined in
this Act shall be exclusive and any other proceeding shall be void and of no
force and effect in discharging the prisoner.

Tex. Code Crim. Proc. art. 11.07, § 5 (emphasis added).  This Court has always assiduously
guarded its exclusive jurisdiction to grant post-conviction habeas corpus relief in felony
cases.  Holloway, 360 S.W.3d at 490.  The question, then, is whether permitting an appeal
under Chapter 64 would interfere with this Court's exclusive jurisdiction to grant habeas
relief or would otherwise be prohibited by the Texas Constitution as an advisory-only
opinion.
 B. Appeal of Finding Under Chapter 64 Would Not Result in Advisory Opinion

 Having determined that a convicted person may obtain post-conviction DNA testing
under Chapter 64 without regard to whether he has or will file an application for a writ of
habeas corpus, I conclude that the Legislature created the right of appeal under Chapter 64
for the purpose of subjecting a convicting court's actions to appellate scrutiny to ensure and
preserve the integrity of the provisions in the statute.  See Tex. Code Crim. Proc. arts.
64.03, 64.04.   As such, any opinion from the court of appeals addressing whether the trial
court made a proper finding under Article 64.04 does not constitute a prohibited advisory
opinion.
 "It is well-established that this Court is without constitutional or statutory authority
to . . . render advisory opinions."  Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim. App.
1988); see also Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991) ("This
Court and the Court of Appeals are without authority to render advisory opinions."). (10) 
"'Judicial power' is the power of a court to decide and pronounce a judgment and carry it
into effect between persons and parties who bring a case before it for a decision."  Garrett
v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1986) (opinion on reh'g) (citing Morrow v.
Corbin, 122 Tex. 553, 558, 62 S.W.2d 641, 644 (Tex. 1933)).  An advisory opinion is one
which "adjudicates nothing and is binding on no one." Douglas Oil Co. v. State, 81 S.W.2d
1064, 1077 (Tex. Civ. App.--Austin 1935).  Stated differently, an "advisory opinion results
when  a court attempts to decide an issue that does not arise from an actual controversy
capable of final adjudication[.]" Garrett, 749 S.W.2d at 803.  Given an appellate court's lack
of constitutional authority to render advisory opinions, it follows that the Legislature is
powerless to grant that power to the courts by statute.  See Public Utility Com'n of Texas v.
J.M. Huber Corp., 650 S.W.2d 951, 954 (Tex. App.--Austin 1983) (reasoning that, because
issuing advisory opinion is "beyond the constitutional power" of a court, the "Legislature is
powerless to authorize" court to render advisory opinion pursuant to statutory grant of
jurisdiction); see also Morrow, 62 S.W.2d at 644-45 (Legislature cannot statutorily authorize
appellate court to render advisory opinions).  
 Although it is true that a trial court cannot grant post-conviction relief under Chapter
64, it does not necessarily follow that any opinion by a court of appeals reviewing a trial
court's finding under Article 64.04 would be advisory only.  I conclude that there are three
reasons why, without the appellate review provided for in Chapter 64, a trial court's
determinations under the DNA statute might never be reviewed for accuracy by an appellate
court even if the convicted person were to file an application for a writ of habeas corpus.  
	First, as detailed above, the Legislature intended for the parties to have a right to
appeal the convicting court's findings under Chapter 64 and, specifically, to permit the
convicted person or the State to challenge the sufficiency of the evidence to support the trial
court's findings under a reasonable-probability standard.  In addressing the former version
of the Chapter 64 provision providing a right of appeal, this Court explained that the
Legislature intended to "'give convicted people full access to the courts' and to 'provide a
check on individual courts' decisions.'" Kutzner, 75 S.W.3d at 433-35.  In reviewing the
convicting court's decision, the appellate court's opinion and judgment, whether by affirming
or reversing the findings that had been found favorable or unfavorable by the convicting
court, would be binding on the convicting court and the parties and would not, therefore, be
advisory only.
	As this Court has observed, the standard of proof that applies to an actual-innocence
claim raised in a writ application is significantly higher than the standard that applies in a
Chapter 64 proceeding.  Whereas an applicant seeking relief on the basis of actual innocence
must show by clear and convincing evidence that no reasonable juror would have convicted
him in light of new evidence of innocence, (11) a trial court's finding under Chapter 64 is
subject only to a preponderance-of-the-evidence standard, that is, that there is a reasonable
probability of a different outcome had the DNA test results been available at the time of
trial. (12)  For this reason, it is possible that this Court would deny a convicted person habeas
relief due to his failure to establish actual innocence under a clear-and-convincing standard,
despite the convicting court's finding that DNA results were favorable to him under a
reasonable-probability standard.  See Routier v. State, 273 S.W.3d 241, 259 n.76 (Tex. Crim.
App. 2008) ("Even if the DNA testing to which [Routier] is entitled under the statute does
in fact provide evidence to corroborate her story . . . she may not be entitled to relief by way
of habeas corpus because she may well fall short of meeting the onerous standard for proving
actual innocence."); see also Holloway, 360 S.W.3d at 490 (observing that "[n]ot every
favorable finding under Article 64.04 will necessarily lead to post-conviction habeas corpus
relief").  Because this Court reviews actual-innocence claims raised on habeas corpus under
the clear-and-convincing standard, it is likely that, absent the availability of direct appeal
under the DNA statute, there would be no check on the convicting court's finding as to
whether the test results are favorable or unfavorable under the statute's lower reasonable-probability standard.  Compare Tex. Code Crim. Proc. art. 11.07, § 3(c), (d), with id. art.
64.04.  The Legislature's intent to provide convicted individuals with a full and fair
opportunity to litigate the matter of DNA testing is evident in the Chapter's requirement that
counsel be appointed before the filing of any Chapter 64 motion for testing if the court finds
there are "reasonable grounds" for the filing of such a motion. (13)  By contrast, applicants for
post-conviction writs of habeas corpus in non-capital proceedings may be appointed counsel
only after the filing of an application and upon a subsequent determination by the court that
there are controverted issues that require resolution through a hearing. (14)
  	Second, because Chapter 64 provides the sole avenue for obtaining post-conviction
DNA testing, proceedings under that Chapter are independent of any application for a writ
of habeas corpus that may or may not ever be filed.  When the convicting court orders
forensic testing under the Habeas Corpus statute, it may not order DNA testing.  See id. arts.
11.07, § 3(e); 64.03.  To obtain post-conviction DNA testing, therefore, it is unnecessary for
a convicted person to meet the criteria for obtaining evidence under the Habeas Corpus
statute that requires the habeas court to determine whether the underlying facts are
controverted, unresolved, and material.  See id. art. 11.07.  Instead, Chapter 64 permits a
convicting court to order DNA testing if, among other requirements, identity was or is an
issue in the case and the convicted person would not have been convicted if exculpatory
results had been obtained through DNA testing.  See id. art. 64.03 (a).  It cannot be rationally
said that an appeal under Chapter 64 would infringe upon this Court's exclusive authority to
grant relief under the Habeas Corpus statute where there exists no proceeding under the
Habeas Corpus statute at the time of a proceeding under Chapter 64.  And, given that Chapter
64 is the exclusive vehicle for accessing post-conviction DNA testing, it can hardly be said
that the appellate court's review of a finding under the statute is advisory in the sense that
it provides no final judgment whatsoever.  Because the results of any DNA testing and the
trial court's finding under the statute may form the basis for this Court's later consideration
of a post-conviction claim, the appellate court's review of the trial court's finding is a final
judgment with significant consequences for the parties.  See Ex parte Gutierrez, 337 S.W.3d
883, 890 (Tex. Crim. App. 2011) (observing that, although "[e]xculpatory DNA testing
results do not, by themselves, result in relief from a conviction or sentence," Chapter 64 is
nevertheless a "procedural vehicle for obtaining certain evidence 'which might then be used
in a state or federal habeas proceeding'") (quoting Thacker v. State, 177 S.W.3d 926, 927
(Tex. Crim. App. 2005)). 
	Third, even though in deciding whether to grant habeas relief this Court is the ultimate
fact finder, that does not mean that a direct appeal of the convicting court's findings of fact
would result in an advisory-only opinion.  It is true that habeas relief may only be obtained
through the Habeas Corpus statute and not through any Chapter 64 proceeding.  See Ex parte
Tuley, 109 S.W.3d 388, 391 (Tex. Crim. App. 2002) ("Chapter 64 provides for forensic DNA
testing but does not provide a vehicle for obtaining relief if testing reveals affirmative
evidence of innocence. The vehicle for relief after obtaining test results that constitute
affirmative evidence of innocence is" filing an application for post-conviction habeas
corpus); Thacker, 177 S.W.3d at 927.  And it is also true that the "evident legislative purpose
behind Chapter 64, [] was to provide a convicted person who is eligible under its terms with
an avenue for obtaining post-conviction forensic DNA testing."  Holloway, 360 S.W.3d at
490; see also Ex parte Baker, 185 S.W.3d 895, 896 (Tex. Crim. App. 2006).
	Although the appellate court's opinion upholding or reversing the trial court's
favorable or unfavorable finding would not directly result in any immediate relief from a
conviction, the appellate court's judgment would bind the trial court and the parties to those
findings and cannot, therefore, be fairly characterized as binding no one or adjudicating
nothing. (15)  Under these circumstances, there is nothing "speculative, hypothetical, or
contingent" about the dispute between the parties.  See Patterson v. Planned Parenthood of
Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1988) (describing prohibited advisory
opinion as giving advice on "speculative, hypothetical, or contingent situations").  Nor can
the relationship between the parties fairly be described as one that is lacking in a live
controversy.  See City of Alamo v. Montes, 934 S.W.2d 85, 85 (Tex. 1996) (holding that,
because "no live controversy" existed between the parties in wrongful-termination suit
following plaintiff's resignation from her position, any opinion Court might issue would be
"strictly advisory").  On habeas review following a direct appeal, this Court would be
reviewing the trial court's fact findings as those findings appear after the appellate court's
judgment affirming or reversing the findings. The appellate court's judgment, therefore,
would bind the convicting court and parties as to those findings that, as explained below, are
ordinarily deferred to by this Court. 
	On habeas, this Court, as the ultimate fact finder, may exercise its authority to make
contrary or alternative findings and conclusions and is not obligated to adopt the trial court's
fact findings.  See Weinstein, 421 S.W.3d at 664 ("When our independent review of the
record reveals that the trial judge's findings and conclusions are not supported by the record,
we may exercise our authority to make contrary or alternative findings and conclusions.");
Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).  As a practical matter,
however, this Court ordinarily affords great deference to the trial court's findings and
conclusions in a habeas proceeding.  Ex parte Flores, 387 S.W.3d 626, 634-35 (Tex. Crim.
App. 2012). (16)  The practical impact of the direct appeal of the DNA results would be that this
Court would ordinarily defer to the convicting court's findings interpreting those results, at
least to the extent that the findings would show the test results as being either favorable or
unfavorable by a preponderance of the evidence.
	Despite the three reasons why an appellate court's judgment would not be advisory
in this case, in Holloway, this Court held that the court of appeals "erred to address the
State's challenge to the trial court's Article 64.04 finding."  Holloway, 360 S.W.3d at 490. 
It explained that,
	Because Article 64.04 does not itself provide [Holloway] with any remedy, the
court of appeals's opinion with respect to the sufficiency of the evidence to
support the trial court's favorable Article 64.04 finding was advisory in nature. 
Resolution of such a question should await such time as an applicant may seek
post-conviction habeas corpus relief.

Id.  Because this Court in Holloway failed to fully consider the relationship between Chapter
64 and the Habeas Corpus statute, this Court mistakenly determined that an appellate court's
judgment would be advisory.  See id.  I, therefore, agree with the majority opinion's
overruling of that aspect of Holloway.
	I further agree with the opinion by the court of appeals below that Holloway is not
distinguishable merely because that decision was based on a review of a State's appeal of a
finding favorable to a convicted person as compared to this appeal by the convicted person
who is challenging a finding unfavorable to him.  It would be illogical to carve out that type
of distinction between an appeal of a favorable finding as compared to an appeal of an
unfavorable finding.  Both parties may have justifiable reasons for wishing to appeal the trial
court's findings under the statute, and the statute does not yield absurd results in permitting
both parties to appeal.  Moreover, the statutory language draws no distinction between
favorable or unfavorable findings, nor does it carve out different rules of appealability
depending on whether the appealing party is the State or the convicted person.  In the absence
of any statutory indication or an extra-textual source to suggest that the Legislature would
have intended to create these kinds of distinctions, this Court should treat all findings under
the statute in the same manner, that is, as being appealable.
	Although a convicting court may not grant habeas relief under it, Chapter 64 provides
an independent post-conviction proceeding with different requirements from the Habeas
Corpus statute.  Appellate review of a trial court's finding under Chapter 64 constitutes a
final adjudication of a live controversy between the parties with respect to the issue of DNA
testing and the meaning of any test results under a preponderance-of-the-evidence standard. 
As such, the Legislature's decision to permit parties a right of appeal under Chapter 64 to
ensure its integrity cannot be characterized as resulting in a prohibited advisory opinion.  
III. Conclusion

	I respectfully concur in the majority opinion's judgment reversing the court of
appeals's dismissal of appellant's complaint and remanding the case for consideration of
appellant's complaint under the DNA statute on the merits.
Filed: May 7, 2014

Publish
1. 	Although it is also appropriate to consider a seventh matter, any administrative construction
of the statute, I exclude that extra-textual factor from my analysis because it is not relevant to
resolving the dispute before us.  See Tex. Gov't Code § 311.023.
2. 	See also Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002) (stating that
Legislature provided for Article 64.04 hearing for purpose of "giv[ing] the parties a forum to submit
evidentiary matters relating to the [DNA] test results"). 
3. 	The statute further provides that if the DNA results show an unidentified DNA profile, the
trial court shall order that it be compared with certain governmental databases if an analyzed sample
meets applicable state or federal requirements.  See Tex. Code Crim. Proc. art. 64.035.    
4. 	See Act of Apr. 25, 2003, 78th Leg., R.S., Ch. 13, § 1 (Tex. H.B. 1011).
5. 	See Tex. Code Crim. Proc. art. 44.01(a)(6) (permitting State's appeal of order issued under
Chapter 64); see also Swearingen v. State, 189 S.W.3d 779, 780 (Tex. Crim. App. 2006) (observing
that "Chapter 64 contains its own appellate provision" that "by its plain language . . . directs that all
appeals follow the usual procedures designated for appeals to the courts of appeals," and noting that
movants under the DNA statute must "meet applicable filing and time requirements found in the
Rules of Appellate Procedure").
6. 	See Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010) (holding that trial
court's order denying appointment of counsel under Chapter 64 did not constitute an immediately
appealable order, but permitting eventual review of that matter on direct appeal following denial of
testing under Article 64.05); see also id. at 322 (observing that appeals statute as originally enacted
provided for right of appeal only as to availability of DNA testing and finding after testing).   
7. 	Examining the legislative history and text of Chapter 64, Professors Dix and Schmolesky
have similarly concluded that, under the current statutory scheme, "[c]ertainly, the State can appeal
from an order making a finding that if the results of conducted testing had been available during trial,
the defendant would not have been convicted."  George E. Dix and John M. Schmolesky, 43B
Tex. Practice Series, Criminal Practice and Procedure, § 60:28 (3d ed.) (2013).  Professors
Dix and Schmolesky further observe that the current statutory language "provides no obvious limit
on state appeals except that the order have been issued under Chapter 64."  Id. (discussing scope of
State's appeal under Tex. Code Crim. Proc. art. 44.01(a)(6)).
8. 	Although there may be some delay in an applicant obtaining post-conviction relief from his
conviction, it may be that a direct appeal under the DNA statute has the indirect benefit of providing
for his release from confinement more quickly than without the direct appeal because the State may
be more willing to agree to habeas findings after the culmination of a direct appeal under Chapter
64.  Article 11.65 states,

	On making proposed findings of fact and conclusion of law jointly stipulated to by
the applicant and the state, or on approving proposed findings of fact and conclusions
of law made by an attorney or magistrate appointed by the court to perform that duty
and jointly stipulated to by the applicant and the state, the convicting court may order
the release of the applicant on bond, subject to conditions imposed by the convicting
court, until the applicant is denied relief, remanded to custody, or ordered released.

Tex. Code Crim. Proc. art. 11.65(b).  Permitting a direct appeal, therefore, may have the indirect
benefit of resulting in the release of a wrongfully convicted person on bail more quickly, even if the
ultimate relief from his conviction is delayed because of the direct-appeal process.
9. 	See Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012) (in interpreting statutes,
we presume that the Legislature intended for the entire statutory scheme to be effective); Skinner v.
State, 293 S.W.3d 196, 201-02 (Tex. Crim. App. 2009) (interpreting Chapter 64 provisions in
conjunction and observing that, in interpreting statutes, we presume that the entire statute is
"intended to be effective") (citations omitted). 
10. 	See also Correa v. First Court of Appeals, 795 S.W.2d 704, 705 (Tex. 1990) (observing that
"judicial power does not embrace the giving of advisory opinions," and stating that it is "axiomatic
that appellate courts do not decide cases in which no controversy exists between the parties")
(citations omitted).
11. 	See Ex parte Elizondo, 947 S.W.2d 202, 208-09 (Tex. Crim. App. 1996).
12. 	See Tex. Code Crim. Proc. art. 64.04.
13. 	Texas Code of Criminal Procedure Article 64.01 provides,	A convicted person is entitled to counsel during a proceeding under this chapter.  The
convicting court shall appoint counsel for the convicted person if the person informs
the court that the person wishes to submit a motion under this chapter, the court finds
reasonable grounds for a motion to be filed, and the court determines that the person
is indigent.
Tex. Code Crim. Proc. art. 64.01(c).
14. 	See Tex. Code Crim. Proc. art. 11.07, § 3(d).
15. 	See Heckman v. Williamson Cty, 369 S.W.3d 137, 147 (Tex. 2012) (describing inquiry into
whether Court's exercise of jurisdiction would result in advisory opinion as being "whether there
exists a live, non-abstract question of law that, if decided, would have a binding effect on the
parties"); Tex. Ass'n of Bus. v. Tex. Air  Control Bd., 852 S.W.2d 440, 444-46 (Tex. 1993) (advisory
opinion is one that, rather than remedying an actual or imminent harm, decides abstract questions
of law without binding the parties). 
16. 	As this Court noted in Ex parte Gutierrez, when reviewing a convicting court's Chapter 64
rulings on direct appeal, an appellate court usually gives "almost total deference to the [] court's
determination of historical fact issues and application-of-law-to-fact issues that turn on credibility
or demeanor."   Ex parte Gutierrez, 337 S.W.3d 883, 895 n.34 (Tex. Crim. App. 2011).  But an
appellate court reviews de novo all other application-of-law-to-fact questions.  Id.; see also Johnson
v. State, 183 S.W.3d 515, 519 (Tex. App.--Houston [14th Dist.] 2006).  This Court has observed
that the trial court's ultimate finding as to whether DNA test results are favorable or unfavorable is
a legal determination that calls for de novo appellate review.  See Johnson, 183 S.W.3d at 520
("Although there may exist subsidiary fact issues that are reviewed deferentially, the ultimate
question of whether a reasonable probability exists that exculpatory DNA tests would prove
innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor
and therefore is reviewed de novo."); see also Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.
2002).  Because the ultimate question of whether there is a reasonable probability that exculpatory
DNA tests would be favorable to a convicted person would likely be reviewed de novo on direct
appeal, as a practical matter, even though the legal standard on habeas is different from the one on
direct appeal, there would likely be no difference in this Court's analysis on habeas review as
compared to direct-appeal review with respect to the determination that the DNA results are not
favorable to the convicted person or are favorable by a preponderance of the evidence. 

