Whitfield v. State
Whitfield v. State
Opinion of the Court
delivered the opinion of the Court,
The issue in this case is whether the courts of appeals have jurisdiction to con
Background
In 1981, a jury found the appellant guilty of rape and assessed fifteen years’ imprisonment. In 2007, he moved for, and was granted, post-conviction DNA testing under Code of Criminal Procedure Chapter 64. After receiving the results of the testing in 2009, the trial court held the hearing that article 64.04 requires and found no reasonable probability that the appellant would not have been convicted had the results been available at his trial.
The Court of Appeals held that Chapter 64 does not authorize an appeal of unfavorable findings after post-conviction DNA testing is completed. It dismissed the appeal for want of jurisdiction.
We granted discretionary review to decide whether courts of appeals have jurisdiction to review unfavorable findings made under article 64.04 of the Code of Criminal Procedure.
Chapter 64
Chapter 64 was enacted in 2001.
Article 64.05 of the 2001 act authorized appeals of findings: “An appeal of a finding under Article 64.08 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.”
In the next session of the legislature, article 64.05 was amended thus:
An appeal [of a finding] under this chapter [Ar-ticle-64.03 or 64.04]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 [of the find-feg] is a direct appeal to the court of criminal appeals.4
It may be noticed that the amendment removed the only limitation of the appeal (that the appeal be “of a finding”).
Jurisdiction of the Courts of Appeals
The courts of appeals derive their authority from the Constitution of the State of Texas, which provides:
Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.... Said courts shall have such other jurisdiction, origi*408 nal and appellate, as may be prescribed by law.5
This provision means that a statute must expressly give the courts of appeals jurisdiction. “[T]he standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law.”
In construing statutes, “we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment.”
“If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider ... such extra textual factors as executive or administrative interpretations of the statute or legislative history.”
The only reference to appeals in Chapter 64 is in article 64.05, which reads:
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.10
The text of article 64.05 speaks only of procedures. It does not address the substance of what may be appealed.
Without clear guidance from the text of the statute, we must look beyond the text in an attempt to discern whether the appellant may appeal the unfavorable findings made by the trial court after the DNA testing.
Article 64.05 was amended in 2003 to remove specific reference to an “appeal of a finding under Article 64.03 or 64.04,” and replace it with more general language about an “appeal under this chapter.”
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
In 2003, this Court interpreted the amendment to article 64.05 to be “broadening the scope of Chapter 64 to include appeals not previously permitted.”
In 2012, we held that a Court of Appeals erred when it addressed the State’s challenge to the trial court’s favorable article 64.04 finding.
Because Article 64.04 does not itself provide the appellee 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.16
Holloway was a State’s appeal of a post-conviction DNA test that was favorable to the convicted person. Such a favorable finding could be used to support the person’s claim in a writ of habeas corpus.
Today’s case is a convicted person’s appeal of unfavorable findings. But the issue is the same as the one that was before us in Holloway: whether the appeal under Chapter 64 extends to the sufficiency of the evidence to support the findings. We are persuaded that our holding in Holloway was wrong.
We think'that the courts of appeals have been given authority to consider the sufficiency of the evidence as well as other grounds of appeal. The only limit that the statute placed on those courts was that they would not have jurisdiction of DNA-testing appeals in death-penalty cases.
In the system that the statutes have created, after a final decision of a court of appeals of a DNA-testing appeal in a non-death-penalty case, the results of the proceeding may be used for an application for post-conviction habeas-corpus relief under Article 11.07.
The judgment of the Court of Appeals is reversed, and the case is remanded to that Court for further consideration not inconsistent with our decision.
PRICE, J., filed a concurring opinion.
.We shall refer to this finding, that "had the results been available at trial, it was not reasonably probable that the appellant would not have been convicted,” as "unfavorable findings” as both the appellant and the State do in their briefs.
. Whitfield v. State, 409 S.W.3d 11 (Tex.App.Houston [1st Dist.] 2013).
. Act of April 5, 2001, 77th Leg., R.S.
. Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen. Laws, 16-17.
. Tex. Const, art. V, § 6.
. Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.Cr.App. 2008). See also Lyon v. State, 872 S.W.2d 732, 734 (Tex.Cr.App. 1994) (“The right to appeal a criminal conviction is a substantive right solely within the province of the Legislature.”).
. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Cr.App. 1991).
. Ibid, (emphasis in original).
. Id. at 785-86 (emphases in original).
. Tex.Code Crim. Proc. art. 64.05.
. This Court has held that an order denying DNA testing is an "appealable order” under 64.05. Swearingen v. State, 189 S.W.3d 779, 781 (Tex.Cr.App. 2006). But a judge’s refusal to appoint counsel for post-conviction DNA testing is not an immediately "appealable order” under 64.05 because it is a preliminary decision that is appropriately reviewed as alleged error after a motion for DNA testing is denied. Gutierrez v. State, 307 S.W.3d 318, 323 (Tex.Cr.App. 2010).
. See Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen. Laws, 16-17 (emphasis added).
. House Committee on Criminal Jurisprudence, Bill Analysis, at 2, Tex. H.B. 1011, 78th Leg., R.S. (2003).
. Wolfe v. State, 120 S.W.3d 368, 372 n. 5 (Tex. Cr. App . 2003).
. State v. Holloway, 360 S.W.3d 480, 490 (Tex.Cr.App. 2012).
. Ibid.
. Holloway’s actual-innocence claim, which he raised in an application for writ of habeas corpus after our holding that denied review of his 64.04 hearing findings, has already been addressed by this Court. See Ex parte Holloway, 413 S.W.3d 95 (Tex.Cr.App. 2013).
Concurring Opinion
filed a concurring opinion in which JOHNSON and COCHRAN, JJ., joined.
I respectfully concur in the Court’s judgment reversing the court of appeals’s dismissal of the appeal filed by Robert
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 ap-pealable 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 appeal-able. 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
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. Proo. 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)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 appeal-able, 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. Proo. 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
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 TexCode 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.
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.
M
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
(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 ap-pealability 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 undfer 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 pri- or 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 Kutz-ner, 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.
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.
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.
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 Kutz-ner explained that Chapter 64, as originally introduced, had not provided for any right of appeal, but the bill was later amended to authorize “Mppeals 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 Hoch-berg, 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
[TJhere 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
(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*418 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.
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.
B. Consideration of All the Pertinent Extra-Textual Factors
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 impermis-sibly 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*420 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 “Habe-as 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 habe-as 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 ha-beas-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. TexCode 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.
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.”).
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
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,
Second, because Chapter 64 provides the sole avenue for obtaining post-conviction DNA testing, proceedings under that
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 ha-beas 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 894, 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.
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 Wein-stein, 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).
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-evidenee 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.
. 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.
. 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”).
. 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.
. See Act of Apr. 25, 2003, 78th Leg., R.S., Ch. 13, § 1 (Tex.H.B. 1011).
. 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 mov-ants under the DNA statute must "meet applicable filing and time requirements found in the Rules of Appellate Procedure”).
. 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).
. 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, 43 B 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)).
. 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.
. 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).
. 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).
. See Ex parte Elizondo, 947 S.W.2d 202, 208-09 (Tex.Crim.App. 1996).
. See Tex.Code Crim. Proc. art. 64.04.
. 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).
. See Tex.Code Crim. Proc. art. 11.07, § 3(d).
. 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
. 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, 183S.W.3dat 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.
Concurring Opinion
filed a concurring opinion.
I join the Court’s opinion. We were certainly right in Holloway to characterize an opinion on the sufficiency of the evidence to support a convicting court’s favorable finding under Article 64.04 as “advisory in nature.”
. State v. Holloway, 360 S.W.3d 480, 490 (Tex.Crim.App. 2012); Tex.Code Crim. Proc. art. 64.04.
. See id. at 486-87 (Chapter 64 provides for a finding with respect to the results of any DNA testing that may have been permitted, but “[i]t does not expressly go on to provide for any remedial action by the convicting court on the basis of that finding”). In the absence of any remedial provision in Chapter 64 itself, any appeal from the finding contemplated by Article 64.04 would be, indeed, "advisory in nature." Id. at 490. Nevertheless, I agree with the Court today that Article 64.05 constitutes a legislative endowment of jurisdiction upon the courts of appeals, in keeping with Article V, Section 6 of the Texas Constitution, to review an Article 64.04 finding — "advisory” though any appellate opinion with respect to that finding may be. See Majority Opinion at 407-09 (citing Tex. Const, art. V, § 6; Tex. Code Crim. Proc. art. 64.05).
. Tex.Code Crim. Proc. ch. 64; id. art. 64.04.
.Article 64.04 authorizes nothing more than a finding from the convicting court. It does not authorize that court to issue an order of any kind. "Indeed, the only substantive order that Chapter 64 contemplates is the one that grants or denies the movant’s request for DNA testing.” Holloway, 360 S.W.3d at 486. But the only thing that Article 44.01 of the Texas Code of Criminal Procedure entitles the State to appeal from Chapter 64 proceedings is "an order ... issued under Chapter 64.” Tex.Code Crim. Proc. art. 44.01(a)(6). Since ”[a]n appeal under [Chapter 64] is ... in the same manner as an appeal of any other criminal matter,” Tex.Code Crim. Proc. art. 64.05, and a favorable finding under Article 64.04 arguably does not constitute an "order” in contemplation of Article 44.01(a)(6), we may have correctly declined to address the State’s second argument in Holloway, albeit for the wrong reason. We need not resolve that question in the case presently before us.
Reference
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