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. 9397-B



                           DISSENTING OPINION

      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. See TEX. 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

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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. See TEX. 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




                                          3
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. See TEX.

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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. See TEX. 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.

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                               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

                                          6
486–87. Article 64.04, therefore, authorizes only a finding. Id. at 487. The court

reasoned that the plain language of article 64.04 “expresses the evident legislative

purpose behind Chapter 64, which was to provide a convicted person who is

eligible under its terms with an avenue for obtaining post-conviction forensic DNA

testing—and no more.” Id. Thus, a defendant who obtains a favorable finding

under article 64.04—that is, a finding that it is reasonably probable that, had the

DNA testing results been available at trial, the jury would not have convicted—

“may yet obtain appropriate relief predicated on that finding,” but he must do so

using “procedural devices beyond the boundaries of Chapter 64 itself,”

specifically, a writ of habeas corpus. Id. at 488.

      The Court of Criminal Appeals determined that the Texarkana Court of

Appeals had correctly held that the convicting court lacked jurisdiction to order a

new trial after it made a favorable finding concerning the DNA test results. Id. at

490. As a result of its holding on that issue, the Court of Criminal Appeals also

held that the Texarkana court “erred to address the State’s challenge to the trial

court’s Article 64.04 finding.” Id. The court concluded that, because the text of

article 64.04 itself did not provide Holloway with a remedy after obtaining a

favorable finding, the court of appeals’ opinion regarding the sufficiency of the

evidence to support that favorable finding “was advisory in nature.” Id. It held




                                          7
that that issue should instead be resolved at the time that Holloway sought post-

conviction habeas corpus relief. Id.

      In the instant case, the majority holds, on the basis of the reasoning in

Holloway, that an appellate court should not address any questions of the

sufficiency of the evidence to support a trial court’s article 64.04 finding because a

writ of habeas corpus is the only avenue of post-conviction relief based on DNA

testing. Slip Op. at 2. In my view, the majority’s holding and opinion are plainly

erroneous for two reasons.

      First, the majority’s holding contradicts, and, therefore, effectively

abrogates, Code of Criminal Procedure article 64.05, which expressly provides for

the appeal of a trial court’s article 64.04 finding “in the same manner as an appeal

of any other criminal matter.” TEX. CODE CRIM. PROC. ANN. art. 64.05. It is

established jurisprudence that a criminal defendant may appeal an adverse ruling

for insufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 316, 99

S. Ct. 2781, 2787 (1979) (noting that essential element of due process requires that

“no person shall be made to suffer the onus of a criminal conviction except upon

sufficient proof”). Moreover, it is well-established that article 64.05 allows a

defendant to appeal an unfavorable finding made by the trial court under article

64.04. See Wolfe v. State, 120 S.W.3d 368, 371 (Tex. Crim. App. 2003) (“Here,

the court made a finding that the results were not favorable [to the defendant].

                                          8
While appellant could, he did not contest that finding.”); Frank v. State, 190

S.W.3d 136, 137–39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (reviewing

challenge to trial court’s unfavorable DNA test results finding); see also Johnson v.

State, 183 S.W.3d 515, 519–20 (Tex. App.—Houston [14th Dist.] 2006, pet.

dism’d) (reviewing same); Booker v. State, 155 S.W.3d 259, 266–67 (Tex. App.—

Dallas 2004, no pet.) (reviewing same).        The Court of Criminal Appeals in

Holloway gave no indication that, by its holding, it intended to abrogate this line of

cases and instead hold that courts of appeals cannot, in any circumstances, review

the sufficiency of the evidence to support an article 64.04 finding. Nor is such a

reading of Holloway sustainable in light of the law set forth above.

      Second, this case is factually distinguishable from Holloway. In Holloway,

the convicting court, pursuant to article 64.04, made a finding favorable to

Holloway. The convicting court found that, if the jury had the results of the DNA

testing, a reasonable probability existed that the jury would not have convicted,

and it ordered a new trial.      360 S.W.3d at 482.       The State then appealed,

contending that insufficient evidence supported this favorable finding. Id. The

Texarkana Court of Appeals agreed with the State and held that the DNA testing

results were insufficient to support the convicting court’s favorable finding, and it

held that the district court lacked the jurisdiction to order a new trial based on its

finding under article 64.04. Id. at 483. The Court of Criminal Appeals, however,

                                          9
held that, because article 64.04 only authorized a finding and Holloway would

have to pursue post-conviction relief via a writ of habeas corpus to actually obtain

a remedy predicated on that favorable finding, the State’s challenge to the

sufficiency of that finding should be raised in a subsequent habeas proceeding, not

on direct appeal of the favorable finding. See id. at 490.

      In my view, the Court of Criminal Appeals’ holding is necessarily limited to

the factual situation present in Holloway, namely the situation in which a trial court

makes a favorable finding on DNA test results.           In Holloway, the Court of

Criminal Appeals held only that the trial court, having made a DNA finding

favorable to the defendant, lacked jurisdiction to order a new trial and that the

appellate court lacked jurisdiction to review the trial court’s favorable DNA

finding. See id. The defendant could, however, avail himself of habeas corpus

proceedings to seek a new trial based on the trial court’s favorable DNA finding.

See id. at 488–89. Only the State was denied the right of review of the trial court’s

favorable DNA finding. See id. at 490. While the Code of Criminal Procedure

assures defendants an absolute right of appellate review in criminal matters, it does

not necessarily accord the State the right to appeal a ruling favorable to the

defendant. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)–(c) (Vernon Supp.

2012) (providing limited situations in which State is entitled to appeal order of trial

court in criminal case).

                                          10
      The factual situation present here is the opposite of that in Holloway. Here,

the trial court made an unfavorable finding concerning the DNA testing results,

that is, a finding that it was not reasonably probable that, if the DNA testing results

had been available at the time of Whitfield’s trial, the jury would not have

convicted Whitfield; and Whitfield, the defendant, not the State, is the party

challenging the sufficiency of the evidence to support this unfavorable finding.

Unlike in Holloway, Whitfield does not have a finding on which he can predicate a

subsequent writ of habeas corpus. Thus, a direct appeal of this finding is the only

way by which Whitfield can challenge the sufficiency of the evidence to support

the trial court’s unfavorable finding in this matter. See, e.g., Wolfe, 120 S.W.3d at

371 (noting that defendant may challenge unfavorable DNA test results finding on

appeal). Without this recourse, Whitfield is denied a measure of due process,

namely, the right of appeal, expressly accorded him by article 64.05. See TEX.

CODE CRIM. PROC. ANN. art. 64.05.

      In my view, the Court of Criminal Appeals’ opinion in Holloway can only

reasonably be read as holding that the courts of appeals lack jurisdiction to review

the sufficiency of the evidence supporting a favorable article 64.04 finding, not as

holding that they lack jurisdiction to review both a favorable and an unfavorable

finding. See 360 S.W.3d at 490. The law on unfavorable findings remains as it

was before Holloway: those findings are reviewable on direct appeal to the court

                                          11
of appeals. However, the sufficiency of the evidence to support a favorable finding

must instead be raised when the defendant seeks post-conviction habeas corpus

relief based on the finding. Id. I would, therefore, hold that this Court has

jurisdiction to consider Whitfield’s challenge to the sufficiency of the evidence

supporting the trial court’s unfavorable finding, and I would decide the case on the

merits of Whitfield’s challenge.

                 Trial Court’s Finding on DNA Testing Results

      Whitfield argues on appeal that the trial court erred in not making a

favorable finding on his article 64.04 challenge.

      An appellate court reviews de novo a trial court’s finding under article

64.04. Frank, 190 S.W.3d at 138. The court must review the entire record to

determine whether the appellant established, by a preponderance of the evidence,

that a reasonable probability exists that, had the DNA results been available in the

original trial, he would not have been convicted. See id. (citing Smith v. State, 165

S.W.3d 361, 365 (Tex. Crim. App. 2005)); see also Cate v. State, 326 S.W.3d 388,

389 (Tex. App.—Amarillo 2010, pet. ref’d) (“While there may be subsidiary fact

issues which we review deferentially, the ultimate question is one of law which we

review de novo.”). The appellant bears the burden of establishing that he would

not have been convicted if exculpatory results had been obtained through DNA

testing. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).

                                         12
      The appellant must show a reasonable probability that exculpatory DNA

testing would establish his innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex.

Crim. App. 2002). A reasonable probability of innocence exists when there is a

probability sufficient to undermine confidence in the outcome of the trial.

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Bates v. State, 177

S.W.3d 451, 453 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Test results

that “merely muddy the waters” do not show a reasonable probability of innocence.

Rivera, 89 S.W.3d at 59 (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim.

App. 2002)).

      “A ‘favorable’ DNA test result must be the sort of evidence that would

affirmatively cast doubt upon the validity of the inmate’s conviction.” Ex parte

Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011). If the DNA test results

fail to demonstrate a reasonable probability of appellant’s innocence, then the trial

court does not err in finding the DNA test results “not favorable.” Johnson, 183

S.W.3d at 520. Inconclusive test results do not make innocence more or less

probable. Cate, 326 S.W.3d at 390; Baggett v. State, 110 S.W.3d 704, 707 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d).

      I would conclude that Whitfield failed to carry his burden of showing that

the DNA test results would exculpate him. See TEX. CODE CRIM. PROC. ANN. art.

64.04; Wilson, 185 S.W.3d at 484 (holding that defendant bears burden to establish

                                         13
entitlement to relief under Chapter 64). The DNA testing results in this case are, at

best, inconclusive. Mohler testified that, in addition to a known hair from the

complainant, she tested three unidentified hairs. She was unable to obtain a DNA

profile from the hairs found on the complainant’s underwear and on the underwear

of one of Whitfield’s co-defendants. She was able to obtain a partial DNA profile

from the hair found on the complainant’s shirt, and she testified that this profile

was consistent with the complainant’s known DNA profile. Thus, the evidence

tested demonstrates only that the complainant had one of her own hairs on her

shirt. Mohler’s inability to obtain, from one of the four tested hairs, a DNA profile

that matched Whitfield’s known DNA profile does not compel the conclusion that

he was not involved in sexually assaulting the complainant nor does it establish a

reasonable probability of his innocence sufficient to undermine confidence in the

outcome of the trial. See Rivera, 89 S.W.3d at 59; Cate, 326 S.W.3d at 390;

Johnson, 183 S.W.3d at 520. Instead, the DNA testing results only show that

Whitfield did not leave any hairs on the complainant’s clothing or that any such

hairs were not preserved for testing. See Gutierrez, 337 S.W.3d at 900 (noting, in

case involving multiple defendants, that “a test showing that appellant’s DNA was

not in [fingernail] scrapings [taken from the complainant] would not establish his

innocence”).




                                         14
      The underlying offense in this case involved other defendants. In these

factual circumstances, the defendant seeking exculpatory DNA testing faces a

“more difficult” burden in establishing his entitlement to a favorable article 64.04

finding because “there is not a lone offender whose DNA must have been left at

the scene.” Id. The DNA testing results in this case merely confirm that some of

the biological evidence collected belongs “as one would expect, to the victim of

the crime.” Id. Thus, the test results do not establish that Whitfield did not

commit the underlying offense as either a principal or a party. Id.

      I would conclude that the record contains sufficient evidence to support the

trial court’s unfavorable finding that Whitfield failed to establish that a reasonable

probability exists that, had the DNA testing results been available at the time of his

trial, the jury would not have convicted him. I would therefore affirm the trial

court’s finding.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

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



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