*1 KUTZNER, Appellant, Richard William Texas. STATE of
No. 74135. of Texas. Appeals
Court of Criminal
April
Rehearing Denied June *2 Marcus, Houston, Appellant.
Jim McConnell, DA, Gail Kikawa Con- Asst. roe, Paul, Austin, Atty., Matthew State’s for State.
OPINION HERVEY, J., opinion delivered the MEYERS, PRICE, the Court in which COCHRAN, JJ., joined. HOLCOMB and This is an from the court’s denial motion for (McCormick, (Tex. Cr.App.1996) testing pursuant 64 of P.J., concurring) (maj.op.). of Criminal Procedure. We Texas Code affirm. A. capital
Appellant was convicted of
mur-
*3
5,
V,
of the Texas Consti-
Section
death.
der and sentenced to
This Court
subject
tution,
matter
out this Court’s
appellant’s conviction
sen-
sets
affirmed
grant
appel-
jurisdiction.
general
v.
The
appeal.
tence on direct
See Kutzner
State,
the
of Criminal
(Tex.Cr.App.1999).
jurisdiction
ter motion court for 64 appeal 64 not a “criminal case” is testing. court de- not found appellant “has been because clined to order DNA has punishment and no guilty anything filed appeal an with this Court. We sua Legislature enacted been assessed.” sponte parties “to ordered the brief part as the Code of Criminal Chapter 64 jurisdiction review issue of this Court's proceeding A Chapter 64 Procedure. a convicting court’s adverse or con- affect, to, a and could closely connected Art. clusion under 64.03 V.A.C.C.P.” Kutz- a crim and sentence assessed to conviction State, 74,135 ner (per v. No. curiam order Like a inal defendant in a criminal case. 2001) July (nonpublished). delivered Chap proceeding, bail bond forfeiture “criminal case” be proceeding ter 64 is a I. Constitutional Jurisdiction closely it “is too connected” with cause The State claims this Court con criminal ease jurisdiction subject does not have matter penalty. See and received the death victed appeal. over this This 64 State, 86 26 generally Jeter v. Tex. as powers Court has such are con (1894) (bail 49, 49-50 bond forfeiture S.W. by ferred on it the Constitution and part be proceeding is “criminal case” that do conflict with the con statutes criminal case for which the bond cause the grant jurisdiction. Ex stitutional closely too connected with given “is Minor, parte 27 S.W.2d Tex.Crim. it”).2 from separable to be [bail bond] Finnin, (1930); parte 806-07 Ex (1910) cases which The State relies on various Tex.Crim. 131 S.W. because, Davis, distinguishable primarily (op. Ex we find reh’g); parte State, 2, 4 558 S.W.2d paragraph of Section 5 states: See also Basaldua The first (Tex.Cr.App.1977) (relying on Article Appeals have The Court Criminal shall Procedure, jurisdiction Code of appellate coextensive with Texas final state, and its judgment the limits determina- proposition that an final, case”). be in all criminal cases of tions shall forfeiting a bail bond is "criminal grade, exceptions and with such whatever regulations may provided as such be prescribed by law. in this Constitution or case, however, unlike this these cases did not involve also rested its decision on the a statute that specifically authorized lack of either “constitutional statutory [or] appeal.3 authority” These cases apparently would authorized an appeal. See noted, been decided differently previously had there id. As appears cases, been such a Paprskar statute. These would have been there- decided differ- fore, appear ently had there merge authorizing the constitutional been statute question appeal. of what constitutes a “criminal case” under question Section 5 with the of We also take note two other cases whether an is authorized stat- cited in the State’s brief. Bretz v. ute.4 State, Court, summarily and without discussion,
For decided that Section 5 example, did not Paprskar decided *4 authorize an appeal from a trial court’s proceeding expunge arrest records was 47.02, order under Article Texas Code of not a criminal part case in because there Procedure,5 denying the defen- were penalties” no “criminal attached to application dant’s for restoration of certain the proceeding and it brought “by was not property after the defendant acquitted was or in the name of the per- State and the for receiving concealing proper- and stolen against sons whom the brought action was State, ty. 97, See Bretz v. 508 S.W.2d 98 [were] not charged having with committed (Tex.Cr.App.1974) (nothing in criminal a crime or any penal violated statute.” appeal case to after acquittal). defendant’s Paprskar, See 573 S.W.2d at Paprs- alsoWe note that in Bretz there no kar further noted that the expungement of authorizing appeal. statute arrest records proceeding did not “fall within the standard definition of a criminal And, State, in Hardin v. this Court de matter” and that “the fact that the statuto- cided appeal that a defendant’s a from ry basis of this action is contained jury’s findings a criminal case that the Code of Criminal Procedure” did not make defendant was at sane the time of the it a “criminal case.” Paprskar, See id. offense but insane at the time of trial was 525, parte Paprskar, 3.See Ex 573 S.W.2d judgment forfeiting 527- from a final the bail 1978) (no (Tex.Cr.App. bond”); 28 State, 499, constitutional or De Silva v. 98 Tex.Crim. statutory authority authorizing appeal 271, (1924) (no an 267 S.W. 272 constitutional expunction from an order on a motion for statutory authority authorizing appeal or an overruled, records), by arrest and to the extent post-conviction judgment declaring from a with, Dial, v. Weiner 653 S.W.2d sane). defendant conflicts 786, 1983) (Tex.Cr.App. 787 1 (overruling fn. Paprskar support to the extent it would hold- See, Miller, e.g., Bradley 458 S.W.2d v. ing statutory “provision appointment (one (Tex.Cr.App.1970) seeking 674 to invoke compensation and attorneys represent jurisdiction Appeals of Court of Criminal indigent defendants” in criminal cases is not point statutory must to some constitutional a purposes "criminal law matter” for of this provision right bring conferring such and original Court's jurisdiction mandamus procedure prescribed). himself within the 5); State, Section Armes v. 573 S.W.2d 8-9 (no (Tex.Cr.App.1978) constitutional or statu- 47.02, part, provided 5. Article in relevant tory authority authorizing appeal an from an then as it does now: ordering appear order the defendant to before theft, Upon any State, trial of action for grand criminal jury); a California Walker v. 537 (no any illegal acquisition prop- or for other (Tex.Cr.App.1976) juris- 37-38 offense, erty appeal pretrial penal which is law a diction over from order that trying sureties court proper- bail bond are the case shall order the insufficient be- jurisdiction cause ty person appearing by in bail bond cases "is re- to be restored to the appeals stricted proof statute to or writs of error to be the owner of the same. case, any and the not found accused “criminal case” because the We not a none, not this Court has State cites where guilty anything, been had not “found And, a case. appeal an such entertained been assessed.” punishment ha[d] no and at one case where have found least we State, v. See Hardin Tex.Crim. unautho- entertained Court has (1952).6 Hardin, how 248 S.W.2d does proceeding in a by statute rized ever, de relied on v. State which Griffin of “criminal fit Hardin’s definition not cided that defendant’s 853-54; White, 591 S.W.2d case.” See competent him pretrial order Jackson, also S.W.2d at 689-90. We trial was a “criminal case” be stand claim that accepting State’s note it did not to a “conviction of cause amount definition of apply Hardin’s we should “consti an offense” there was neither question into our case” would call “criminal statutory authority” provision nor tutional jurisdiction matters to review most authorizing appeal. Griffin appeal pursuant may the State State, (Tex.Cr.App. 29 S.W.2d of Criminal Pro- Texas Code 1930). Hardin, therefore, relied on a case cedure, do since matters not involve these differently have been decided has where an accused been situation authorizing there been a statute had punishment guilty something found *5 appeal. Chap- hold that a has been assessed. We proceeding is a “criminal case” ter 64 DNA Chapter appeal arguably This 64 DNA purposes. 5 for Section is a not “criminal case” cases such Hardin, as because not been has B. guilty anything, punish- of “found no if argues The State also that even ment has been assessed.”7 The over- Chapter appeal 64 is a “criminal this principle
riding
gleaned
to be
from all of
case,”
appeal
appeals
in a court
lies
of
authorities, however,
is
these
that
of
5
paragraph
under the second
Section
appeal
Court will entertain an
it is
when
appeal
provides
which
“of all [non-
expressly
by
authorized
statute and when
to
penalty] criminal cases” shall be
death
it
definition”
related to
“standard
of
is
This
appeals.9
argument,
courts of
however,
a
first
give
criminal case.8
fails to
effect
State,
(one
Bradley,
seeking
591
8.
S.W.2d at 674
See also White v.
S.W.2d
458
1979) (discussing
(Tex.Cr.App.
bring
853-54
when
jurisdiction
invoke this Court’s
must
appellate
competency hearings
review
is
of
or statuto-
within some constitutional
himself
noting
competen-
while
authorized
also
a
right).
ry provision conferring such
nature");
cy hearing is not
"criminal
Jack-
State,
(Tex.Cr.
son
689-90
paragraph
of Section 5 states:
The second
(pretrial
hearing may
App.1977)
competency
appeal of
in which the death
all cases
appealed
appeal
be
in an
from trial on the
because,
penalty has
assessed shall be to the
though
hearing
been
such
is
merits
even
Appeals.
appeal
a criminal action as such in
a deter-
Court of Criminal
made,
guill/innocence
is not
mination
cases shall be to the
all other criminal
ancillary
proceeding
to the
criminal
main
Appeal
by
prescribed
law.
Courts
as
therefore,
and,
quasi-criminal in
addition,
a sense
Appeals
the Court of
finding
necessary pre-
competency
motion,
may,
its
review a decision
own
requisite
subjecting
a crimi-
the accused to
as
Appeals
in a
case
of a Court
criminal
charged).
trial for the
nal
offense
Discretionary
provided
law.
review
Appeals
is not a mat-
the Court Criminal
Hardin,
487;
S.W.2d at
see also
7. See
judicial
right,
but of sound
discretion.
ter
528; Bretz,
Paprskar, 573 S.W.2d at
S.W.2d at 97-98.
V,
paragraph
of Article
prosecuted
Section
if exculpatory
convicted
Constitution,
provides
Texas
results had been
obtained
appeals
courts of
shall
appellate
testing; and
jurisdiction “under such restrictions and
(B) the request
proposed
regulations
as
prescribed by
be
is not made to unreason-
law.”10 This “under such restrictions and
ably delay the execution of sentence or
regulations may
prescribed
as
be
by law”
justice.
administration of
language in
paragraph
the first
of Section
(Emphasis Supplied).
empowered
Legislature
to make a
Article
Texas Code of Criminal
proceeding
64 DNA
appealable
Procedure, states:
Davis,
Compare
here.
if: for DNA testing contains two “conclusions (1) the court finds that: of law” failed establish (A) the evidence: 64.03(a)(2) requirements. two Article (i) still exists and inis a condition Appellant challenges these conclusions of *6 making testing possible; and appeal. law in this (ii) subjected has been to a chain of State, however, argues The that custody sufficient to that establish it jurisdiction this Court has “no to hear this substituted, has tampered not been appeal [convicting of the court’s Article with, replaced, any or altered in mate- 64.03(a)(2)] of Ar conclusions law” because respect; rial and ticle only appeal 64.05 authorizes an (B) identity was or an issue the convicting reject “finding.” court’s We case; and and hypertechnieal narrow construc (2) the person by convicted a establishes tion of Article 64.05. preponderance of the evidence that:
(A) a reasonable
probability
requires
exists
State’s contention
person
that
the
would not have been
this Court to
the Article 64.05
construe
paragraph
jurisdiction
The first
6
of Section states:
of
co-extensive with the limits
districts,
respective
their
which shall extend
The state shall be divided into courts of
districts,
to
appeals
all cases of which the District Courts or
having
with each district
a
Justice,
Justices,
County
original
appellate
Chief
Courts have
or
two or more other
jurisdiction,
may
provided
and
and
such other officials as
be
under such restrictions
by
regulations
qualifi-
prescribed by
law. The
law.
Justices shall have the
as
be
Provided,
prescribed
cations
for Justices of the Su-
that the decision of said courts
preme
Appeals may
Court.
Court
questions
of
sit
shall be conclusive on all
of fact
by
brought
appeal
sections as authorized
law. The con-
before them on
or error.
majority
judges sitting
currence of a
of
jurisdic-
the
Said courts shall have such other
tion,
necessary
original
in a
appellate, may
pre-
section is
to decide a
and
case.
be
Appeals
Said Court
appellate
shall have
scribed
law.
is,
meanings
there
and
finding
under Article
can
different
phrase “appeal
a
could,
fore,
example,
It
ambiguous.12
construe a statute
normally
64.03.” We
findings
convicting
the
a
“plain
meaning”
its
refer
to
according
[textual]
to
64.03(a)(1).13 It
Article
to
sources.
court makes under
resort
extratextual
without
any finding that a con
State,
could also refer to
Boykin
818 S.W.2d
See
will, however,
makes under Article 64.03.
victing
re-
court
(Tex.Cr.App.1991). We
a
legisla-
arguably
The latter
more reasonable
such as
sort to extratextual sources
Article 64.05 refers
a statute if we
construction since
history
tive
construe
“appeal
finding
Article
ambiguous11
the
an
under
statute is
or
decide
only findings
to an
construing
according
“plain
to its
64.03”
not
64.03(a)(1).
will,
We
there
meaning”
under Article
will lead to “absurd
[textual]
fore,
con
State,
resort
extratextual sources to
consequences.”
See Jordan v.
phrase “appeal
the
64.05
(Tex.Cr.App.2001).
strue
Article
S.W.3d
Our
course,
64.03.”
duty,
finding
is to effectu-
under Article
constitutional
Legislature
the
intended when it
ate what
nothing
in the
initially recognize
We
Boykin,
enacted
statute.
Chapter
legislative history of
64 indicates
at 785.
intent
foreclose
phrase
convicting
decide
the Article 64.05
court’s
We
64.03(a)(2)
review
“appeal of a
under Article 64.03”
Our
finding
determinations.14
311.023,
examining
Texas
After
the results
11. But see Section
Govern-
Code,
(authorizing courts to
ment
consider
shall
Article
court
interpreting a
extratextual sources in
statute
hearing
make a
as to
hold
face);
ambiguous
that is
on its
even one
are
to the
whether the results
favorable
1.26, Texas
Code of
Proce-
purposes
of this
person.
For
dure, (requiring
"liberally”
courts to
construe
article,
if,
favorable
had the re-
results are
objects
Code “so as to
attain
intended
during
before
sults been available
Legislature”).
offense,
reasonably probable
trial of
it is
prose-
would not have been
See,
Torres,
parte
e.g., Ex
943 S.W.2d
cuted or convicted.
(Tex.Cr.App.1997) (phrase
472-73
“final dis
position”
meanings);
has various
Ramos v.
14.Hearings
SB 3 Before the Senate Juris-
*7
State,
358,
S.W.2d
(Tex.Cr.App.
364-65
R.S.,
Committee,
Leg.,
prudence
77th
1996),
1198,
denied
cert.
520 U.S.
117 S.Ct.
(www.senate.state.tx.us,
Jurisprudence
Senate
1556,
(1997) ("persons” pro
proposed Article 64.04.”15 We also note that the State’s construc-
The House
Jurisprudence
Criminal
prevent
tion of
Article 64.05 would
Committee later amended the Senate Ju- Court
remedying
convicting
court’s
risprudence
64.03(a)(2)
Committee’s version of Article
erroneous Article
determina-
64.05 to
“appeal
And,
authorize an
of a finding tions.
construing Article 64.05 to
under Article
64.03
64.04.” The
appellate
House
limit
convicting
review to the
Jurisprudence
64.03(a)(1)
Committee bill
findings
court’s
under Article
analysis explained that
this amendment
preclude adequate
would likewise
review
“provides for
of a convicting erroneous court orders. This is inconsis-
court’s
testing”16
64.05,
determination to order
purposes
tent with the
of Article
under Article
64,
and the House Re-
supporters
stated
3,
R.S.,
Leg.,
House Debate on SB
77th
Organization,
Analysis
House Research
Bill
(www.house.state.tx.us,
3,
(March 21, 2001).
Leg.,
House Archived
of SB
77th
R.S.
1:08:00-2:37:00,
3,
Chamber
Analysis
Broadcasts
at
Senate Research Center
of SB
21, 2001).
R.S.,
(June
2001).
Leg.,
March
77th
R.S.,
Leg.,
House Debate on SB
77th
Committee,
Jurisprudence
Senate
Bill
(www.house.state.tx.us, House Archived
3-4,
R.S.,
Analysis
Leg.,
of SB 3 at
77th
1:15:00-1:18:00,
Chamber Broadcasts
13, 2001).
(February
proposed
This
version
1:58:00-2:01:01,
22, 2001).
March
of Article 64.05 would not have authorized
R.S.,
Senate
Leg.,
Debate on SB
77th
appellate
any
review
(www.senate.state.tx.us, Senate Video and Au-
court’s Article 64.03 determinations since this
0:46:13-0:47:00,
dio Archives at
March
proposed version of Article 64.05 stated:
2001).
Provides that an
of a
R.S.,
Senate
Leg.,
Debate on SB
77th
appeals, except
Article 64.04 is to a court of
(www.senate.state.tx.us, Senate Video and Au-
that if the convicted
was convicted
4:12:00-4:22:00,
April
dio Archives at
*8
case,
capital
appeal
in a
the
of the
2001).
a direct
to the court of criminal
3,
Leg.,
House Debate on SB
77th
R.S.
appeals.
(www.house.state.tx.us, House Archived
0:47:00-0:55:22,
Chamber
April
Broadcasts at
Emphasis Supplied.
3, 2001).
Committee,
Committee,
Jurisprudence
17. House Criminal
Jurisprudence
Senate
Bill Anal-
3,
R.S.,
Analysis
Leg.,
Bill
3 at
77th
R.S.,
SB
ysis
Leg.,
of SB
(February
77th
(March 4, 2001).
2001).
Committee,
Jurisprudence
House
Organization,
Analysis
House Research
Bill
R.S., (March
Analysis
(March
Leg.,
Bill
of SB
Leg.,
77th
of SB at3
77th
R.S.
4, 2001).
2001).
correctly
assess whether
people full access to the
could not
“give convicted
emerged
that has
since
“provide
and to
a check on individ-
information
courts”
trial,
DNA test
coupled
exculpatory
ual courts’ decisions.”18
with
results,
in the
undermine confidence
consequences
We also consider
jury’s verdict.”
of Article 64.05.
the State’s construction
311.023(5) (in
Cd.,
Tex.
Gov’t
Section
support appellant’s
The record does
statute,
a
a court
consider
construing
its
convicting
claim that the
court limited
consequences
particular
of a
construc-
sufficiency of the evi-
consideration to the
tion).
this,
un-
example,
In cases like
Ap-
presented
appellant’s
at
trial.
dence
of Article
der the State’s construction
by
in
as much
his brief
pellant concedes
convicting
had the
court made its
convicting
that the
court “en-
recognizing
64.03(a)(2)
part
Article
determinations
findings addressing evi-
tered
three
“findings”
part
its
rather
than a
of its
dence outside of the trial record.” Point
law,”
“conclusions of
then this Court would
one is overruled.
error
jurisdiction
to review them under
64.05. Different treatment
simi-
Article
B.
in
larly
persons
situated convicted
terms of
two,
point
appellant claims
In
of error
can
they
depending
what
wheth-
convicting
erroneously
court
de-
convicting
er the
court labels its Article
64.03(a)(2)(A),that
termined under Article
64.03(a)(2)
“findings”
determinations as
prepon-
appellant
failed to establish
law,”19
“conclusions of
could not have been
of the evidence that a reasonable
derance
intended.
hold that Article
au-
We
64.05
probability
appellant
exists that
would not
convicting
thorizes this Court to
review
if
prosecuted
have been
or convicted excul-
court’s
64.03.
determinations
Article
patory
results had been obtained
three,
point
testing.
error
Appellant’s
III. The Merits Of
appellant
convicting
claims that the
court
Appeal
erroneously determined under
A.
64.03(a)(2)(B)
prove
failed
one,
In point
of error
claims
preponderance
of the
evidence
that in denying
his motion for DNA
for DNA
is not made to
request
his
erroneously
court
applied
unreasonably delay the execution
sen-
“sufficiency of the evidence”
in-
standard
justice.
tence or administration of
64.03(a)(2)(A)’s
stead of Article
“reason-
understanding of
helpful
It will be
to an
probability”
ap-
able
standard of whether
points to
out
pellant
disposition
our
of these
set
“would have been convicted or
prosecuted
presented
evidence
at
trial.
light
exculpatory
“[bjecause
September
Appellant argues
Appellant
tests.”
was convicted
commit-
[convicting]
capital
court limited its review to
1997 of a
murder that was
Kutzner,
trial,
sufficiency
January
ted
1996. See
State’s case
jurisdiction
Organization
Court would have
to re-
18. See House Research
Bill
This
(March
Analysis
Leg.,
though
of SB 3 at
77th
R.S.
but not the latter even
view the former
21, 2001) (noting
supporters of SB 3
they
thing
con-
appeals
are
of the same
—the
by allowing appeals
claim
of court orders
64.03(a)(2)
victing
determina-
court’s Article
*9
results,
findings
for tests and of
about test
SB
tions.
give
people
3 would
full access
provide
a check on
the courts and
decisions).
individual courts’
wraps
good
the main
that tie
would be
Identity
at 182-84.
eral times
trial.
kill
appellant’s
things
contested issue at
to use to
someone. See id.
appellant’s
id.
evidence from
trial
See
The
The
also introduced into evidence a
State
body
showed that the victim’s
was discov-
in
note that was found
real
victim’s
in
office.
ered
her real estate business
See
in
estate office. This note was
the victim’s
bound with
id. The victim’s wrists were
handwriting
appellant’s
and it contained
and
red electrical wire. The victim’s neck
alias,
nickname,
appellant’s
appel-
wife’s
wraps.
plastic
ankles were bound with
tie
number,
phone
appellant’s
lant’s
street ad-
computer keyboard
See id. A
and a video-
big dogs.
dress and a reference to two
missing
cassette recorder were
from the
appellant
The evidence showed
owned
victim’s office. See id.
dogs. During
punishment
big
two
trial,
pre-
phase
appellant’s
the State
Police seized red electrical wire from
that, about two and a half
sented evidence
appellant’s re-
appellant’s home and from
offense,
mur-
appellant
weeks before this
possessed truck. This red electrical wire
circumstances
dered another woman under
the same manufacturer’s number as
bore
present in this
strikingly similar to those
which
that on the red electrical wire
bound
id.
case. See
the victim’s wrists. See id. Evidence was
presented at trial that this wire was manu-
and sen-
Appellant was also convicted
in
factured
New York and was not com-
murder, and
death for this other
tenced to
mon in the area where the offense oc-
and sentence
affirmed this conviction
we
curred. See id.
unpublished opinion.
in an
on direct
(Tex.
State, slip op. at 33
police
plastic
wraps
tie
Kutzner v.
also seized
See
72,805,
Cr.App.
January
delivered
appellant’s driveway,
garage
from
from his
No.
II”).
1999)
(“Kutzner
(nonpublished)
repossessed
and from
truck.
id.
his
See
es-
wraps
Overwhelming
tie
were similar to those
circumstantial evidence
These
II.
guilt in Kutzner
appellant’s
found around the victim’s neck and ankles.
tablishes
II, slip op.
Among
at 2-7.
id. An FBI toolmark examiner deter- See Kutzner
See
II
Kutzner
things,
around the vic- other
from
wraps
mined that the tie
evidence
legs,
the victim’s
neck
tim’s neck and ankles had been cut with
shows
wraps
plastic tie
snips
appel-
that were
from
wrists were bound with
tin
recovered
case. See
truck.
id.
similar to the ones used
repossessed
lant’s
See
II, slip op.
Kutzner
at 3.
police
seized the victim’s videocas-
residence of a
sette recorder
from the
64.03(a)(2)(A)
1. ARTICLE
Landry who had known
Roy
named
appellant
proceeding,
appellant
many years and who had
scrap-
appellant’s
requests
fingernail
air con-
appellant
worked for
during her
the victim
repair
Landry
ings
See id.
recovered from
ditioning
business.
hair recov-
of a
of white
autopsy,
trial
that he re-
strand
testified
wrap around the victim’s
recorder and the
ered from the tie
ceived the videocassette
neck,
hair recovered
appel-
of a small black
computer keyboard
victim’s
from
piece
cellophane
on the victim’s
Landry
appel-
testified that
lant. See id.
that if this
computer
body. Appellant claims
subsequently
lant
retrieved the
him,
probabili-
a reasonable
id. Another witness testi-
is favorable
keyboard. See
not have been
ty
her the com-
exists
he would
appellant brought
fied
light
of “new”
prosecuted or convicted
puter keyboard.
id. Another witness
post-trial
him sev-
information
stated to
testified
*10
pre-
claims
The resolution
weakens
the State’s
significantly
claims
us to
requires
two
point
of error
sented
him.
original
against
case
64.03(a)(2)(A) phrase
construe the
that none of these
responds
The State
probability exists
“a reasonable
original
in its
case
alleged weaknesses
prosecuted
not have been
person would
probability
result
a reasonable
would
had been
exculpatory
if
results
prose-
would not have been
testing.”
DNA
We also
through
obtained
re-
exculpatory
if
cuted or convicted
phrase can have different
decide that
further ar-
are obtained.
State
sults
therefore,
is,
ambiguous.
meanings,
gues that:
a con-
interpreted
require
It
could be
overwhelming
evidence
light
[i]n
proba-
a reasonable
person
victed
show
Appellant’s guilt, DNA results from
DNA results
favorable
bility exists
would
fingernail scrapings
the victim’s
also
his innocence.20 It could
prove
significant
Appellant’s
if
only be
per-
a convicted
interpreted
require
be
were found since an accidental scratch
probability
a reasonable
only
son
to show
put
could
someone else’s DNA under
that favorable DNA results would
exists
fingernails.
victim’s
DNA results
unrelated to
result
in a different outcome
sig-
the hairs found would also
be
person’s guilt/innocence.21
the convicted
Appel-
if
will, therefore,
nificant
a match were made to
to extratextual
We
resort
language
lant because the hairs were found in a
foregoing
sources to construe the
64.03(a)(2)(A).22
Jordan,
common area of a real estate office and
from Article
anyone’s hair could be on the floor.
64 makes it clear that the cence.23 This does suggest, require Arti- foregoing language intended the from convicted 64.03(a)(2)(A) persons prove cle to mean a reasonable their innocence before exculpatory testing DNA court order DNA probability exists Rather, (www.house.state.tx.us, legislative House Criminal Juris- convicted. is the in- person showing Committee prudence tent that the make a Committee Archived 27, 0:00:00-0:8:00, February probability per- reasonable exists Broadcasts at 2001), (Senate apply son would not have been convicted if excul- meant to at 0:2:49 Bill 3 patory through prove results had been obtained would available DNA evidence testing. person’s guilt/innocence). convicted R.S., 3, (Emphasis Original). Leg., SB 77th House Debate on 3, R.S., Leg., (www.house.state.tx.us, Senate Debate on SB 77th House Archived (www.senate.state.tx.us, 1:08:00-2:37:00, Au- Senate Video and at Chamber Broadcasts 4:12:00-4:22:00, 2, April dio at 21, 2001), (Senate Archives Bill 3 March at 1:57:00 2001) Texas, reported in Senate Journal of safety provide a net for “innocent meant to R.S., 2, 2001). Leg., (April 77th at 998 people”), (rejecting a House Floor at 2:14:00 legislative An almost identical statement of 64.03(a)(2)(A) that Substitution to Article intent was made on the House Floor the next exculpatory results would "had have read 3, day. Leg., House Debate on SB 77th R.S. before or been obtained (www.house.state.tx.us, House Archived trial, person used at the convicted could have 0:47:00-0:55:22, April Chamber Broadcasts at doubt as to those results to raise a reasonable 3, 2001), at 0:50:46. person’s guilt part or to rebut (Senate case”), prosecution's at 2:37:00 Bill 3 Hearings on SB Before the Senate Juris- innocent). effort to free Committee, R.S., prudence Leg., 77th 3, R.S., Leg., Senate Debate SB 77th on (www.senate.state.tx.us, Jurisprudence Senate (www.senate.state.tx.us, Senate Video Au- Committee Video and Audio Archives at 2, 4:12:00-4:22:00, April at dio Archives 0:2:48-0:31:30, 5, 2001), February at 0:2:48 (Senate 2001), provides Bill 3 con- at 4:13:00 (Chapter apply who 64 meant to to inmates prove persons opportunity to their victed "they were convicted of a crime that did not "innocence”). commit"), (Senate at 0:3:46 Bill 3 meant to Leg., 77th R.S. House Debate on SB biological cover evidence that establishes the (www.house.state.tx.us, House Archived crime), guilt person committing at 0:47:00-0:55:22, April at Chamber Broadcasts (criminal lawyer supporter 0:25:31 defense 3, 2001), (Senate Bill 3 meant at 0:51:00 stating Senate that it is intended to free Bill give persons opportunity prove convicted people” prison), at "innocent 0:30:00 innocence). their factual (assistant attorney supporter of Senate district Committee, Jurisprudence House Criminal stating protect Bill 3 that it is intended to R.S., Leg., Analysis at 77th Bill of SB 3 people). "innocent” (March (Senate 2001) "requires the Bill 3 pos- preservation that was in the of evidence R.S., Leg., Senate Debate on SB 77th prosecution during the state session of (www.senate.state.tx.us, Video Au- Senate the case and at the time of the conviction 0:17:18-0:37:49, February dio Archives at biological that if known to contain material 2001), (during at 0:19:00 introduction of Sen- more subjected floor, to scientific ate Bill 3 on the Senate Senator Dun- identity likely than not establish people can noted that it is meant to exonerate committing exclude a person the offense or testing "conclusively” crimes that es- group persons who could commit), from the they tablishes did not 0:24:00 offense”). (Senate have committed the "prove disprove Bill 3 meant to Analysis Organization, Bill innocence”), (Senate House Research at 0:25:00 Bill 3 not 21, 2001) (March Leg., R.S. of SB 3 at 77th meant to be used a “clever defense law- (Senate that a favor- Bill 3 meant to "ensure inadvertently guilty people yer” to let out of inmate is able test would show that an [DNA] jail). innocent, merely muddy waters in the Hearings SB 3 the House Crimi- Before R.S., Committee, case”). Leg., Jurisprudence 77th nal consideration template a merely requires It 64.03.24 under Article And, assum- information. post-trial to show reasonable “new” persons *12 64.03(a)(2)(A) permit exculpatory DNA does exists that that Article probability ing in- post-trial their innocence. prove would of this “new” tests a consideration that this is history is so clear DNA formation, request appellant’s any intended that Legislature what the fail. testing must still judi- the would violate other construction that “new” informa- Appellant claims what the duty ultimate to effectuate ciary’s third establishing that a tion exists it enacted the intended when Legislature taken tape recorder —was item—a at 785. Boykin, statute. See office at the time of real estate the victim’s case particular difficult in this It would be that this is Appellant claims her murder. legislative intent re- ignore the clear tape this recorder significant because legisla- peatedly expressed throughout the victim’s husband about recovered from construe the history Chapter 64 and tive Appellant.ar- murder. a month after the any way.25 other statute case weakens the State’s gues that this legal against When measured theory was against him because the State’s standard, say cannot that the convict we (the re- videocassette only that two items erroneously ap that ing court determined were computer keyboard) corder and pellant to establish the Article failed the victim’s real estate office taken from 64.03(a)(2)(A) prepon requirements por- “devoted substantial and the State derance of the evidence.26 No reasonable impression capitalizing on the false tion to exculpatory DNA probability exists that led everything victim] stolen from [the tests on the evidence for eliminating pos- appellant, thus back prove appellant’s seeks anyone could have killed sibility that else most, exculpatory At innocence. Appellant points also to evi- the victim.” “merely tests on this evidence would mud her had that the victim and husband dence dy the waters.”27 relationship and to other a “tumultuous” 64.03(a)(2)(A) points claims evidence that language of Article at the victim’s husband legislative history finger guilt and its also do not con- R.S., (www.house.state.tx.us, Organization Leg., House Bill 77th See House Research 2:14:00, (March Broadcast at Analysis Leg., Archived Chamber of SB 3 at 77th R.S. 21, 2001). 21, 2001) (noting March opponents of SB 3 oblige claim that it "could defendants almost prove they say the crime had not committed 26. We also cannot having any oth- without the benefit of the test results was erroneous under court’s decision case”). of Article to make their er reasonable construction 64.03(a)(2)(A). Legislature 25. As further evidence of what during Organization, Analy- Bill clearly meant SB we note that 27. House Research (March 21, 2001, Leg., R.S. of SB 3 at 77th full House debate on SB sis the March 2001) (Senate to "ensure that a Bill 3 meant pass a amend- the House declined to floor 64.03(a)(2)(A) that an in- test would show [DNA] favorable that would have ment to Article innocent, muddy wa- merely mate exculpatory obtained read "had results been case”). trial, ters in the before or at those re- could have used police offense doubt as to the in the form of sults to raise reasonable 28. This is 20, 2001, summarizing the prose- guilt part report dated June person’s or to rebut a police investigation of this offense. on SB cution’s case.” See House Debate against [appellant]” and that it others.29 witness just likely Landry murdered the information, Appellant’s post-trial “new” victim. asserts Appellant Landry however, merely indicates that one of the possessed tie-wraps “also the same in his could state victim’s co-workers Appellant provides van and at his house.” knowledge” “to his the victim had never no citation to the to support record tape recorder from her office. removed nothing assertion and we have found in the And, in response its motion support it. if the record record to Even presented testing, for DNA the State *13 supports assertion, this information this in which the in investigator affidavit lead explain Landry how could still does tape this case swore that the recorder possession appellant’s have come into “was determined to have taken be- been addition, snips. jury In tin murder, day fore the and [the victim’s] appellant hearing even after evidence in was not considered to be an item taken attempted Landry had convicted of been capital the course of the murder.” a “basket Landry murder and that had important, appellant’s post- More “new” full” of electrical wire trial appellant information which claims points finger guilt at the victim’s We decline to disturb 64.03(a)(2)(A)' explain husband and others does not how court’s Article determination potential suspects these could have by pre- other appellant failed to establish possession appellant’s come into tin ponderance that a reason- of the evidence snips wraps that were used to cut the tie probability appellant exists that able and around the victim’s neck ankles.30 convicted “if prosecuted not have been explain This information also does not how exculpatory results had been obtained possess came to the victim’s vi- two testing.” DNA Point of error through computer deocassette recorder and her is overruled.
keyboard. 64(a)(2)(B) 2. ARTICLE
Appellant complains also that the State pres proceeding, appellant admittedly pretextual “used an arrest why he filed his cooperation [Landry], star ents for secure the its various excuses prior appointed example, appellant points [appellant's] counsel 29. For to evidence and may thorough investigation, that the victim’s husband’s car have been failed conduct parked the victim's real estate in front of to ade- time counsel has had insufficient Appel- of the murder. office around time investigate In addition quately the case. points to evidence that another car lant other under- described above that the information may parked have of the victim’s been front trial, the State's evidence mines much of real estate office around the time of mur- [appellant] reason to believe counsel for has points Appellant der. also to other evidence testimony examiner of the toolmark that the the electrical wire around the victim’s certainty to which identifica- overstated the may not been as rare as the State wrists made, specific that the can be and tion claimed at trial. comparison evidence admitted toolinark against [appellant] rendered unreliable evidence, respect ap- 30. With to the toolmark the tests were by conditions in which testimony pellant asserts that “the the tool- currently seeking [Appellant] is conducted. certainty overstated the mark examiner tools, wraps, compara- tie to the access and that which identification can be made” the evi- having photographs in order to have currently process tive by independent independent expert, evidence evaluated an evaluated dence entirely i.e., expert. We set out the paid law enforcement one who is not a evidence: the issue of the toolmark brief on official. repre- undersigned counsel has Because months, [appellant] only a sented few (b) request forensic motion just motion for DNA Chapter 64 of evidence described testing only DNA scheduled execution days nine before his (a) that was secured by Subsection claims that Among things, other he date. the basis to the offense relation prosecution trial the “con- dining his 1997 was in challenged of the conviction evidentiary finger- cealed the value during the possession of the state impres- scrapings” creating nail false offense, trial of the but: that it could not be tested for sion (1) subjected to previously was not no blood. it contained evidence because testing: prosecution Appellant also claims (A).... of white hair recov- suppressed strand wrap tie around the victim’s ered from the (B) no fault of the convict- appellant’s counsel did not
neck and that that are of a person, ed for reasons this evidence until June 2001.31 discover the interests of nature such he Appellant presents why no excuse for testing; justice require DNA previously request did not *14 clearly history fails piece of cello- the black hair found on Legislature meant this state what the phane body. on the victim’s Organiza- provision. The House Research Bill Analysis Bill 3 states appellant’s The State claims that “seri- tion Senate “if testing requested DNA could be prosecutorial ous accusations of miscon- that through no unsupported testing previously was not done duct are meritless and and if the interests of in fault of the offender evidence this case.” The State further justice required testing.”32 compe- appellant “presents claims that no showing tent evidence con- the State 21, 2001, House De- During the March evidence, Appellant cealed could have bates, offered Representative Dutton trial of testing demanded DNA before his Article current substitution two, three, if the items.” at least not all 64.01(b)(1)(B) that have stated “for appellant’s Chapter The State claims of the any other than the refusal reason testing for DNA was made to 64 motion permit testing.”33 DNA defendant unreasonably delay his execution because explained this Representative Dutton requested counsel could have person made meant that the convicted trial, during items DNA these permit not to test- conscious decision appeal, pro- the state the direct habeas rejected Representative The House ing. proceed- and the federal habeas ceedings Dutton’s substitution.
ings. case, unnecessary to we find it have 64.01(b)(1)(B), exactly when could Texas Code of decide
Article testing. He Procedure, previously requested provides: Analy- Organization, Bill 32. House Research reflects that the victim’s hair 31.The record (March in an Leg., The State had claimed R.S. was white. sis of SB 3 at 77th corpus proceeding habeas earlier state 2001). "unreasonably discount the evidentia- did ry this hair” because this "hair could value of R.S., Leg., on SB 77th 33. House Debate easily victim] broken off when [the so (www.house.state.tx.us, Archived House strangled Appellant re- [appellant] [her].” 2:00:40-2:06:20, Broadcasts Chamber sponds proceeding that the victim in this 21, 2001). March hair, shoulder-length recov- but the hair “had tie-wrap longer than two is no ered from length.” in inches disposition our previously for not re- determination. Based on offers no excuse three, questing of the black hair on points of error two and piece cellophane. Appellant raised unnecessary. Points of error four and five prosecutorial the same misconduct claims are overruled. / regarding the other two items evidence court is judgment in corpus application a successive habeas affirmed. which this Court dismissed as an abuse of Kutzner, 40,8730- parte Ex No. the writ. KEASLER, J., (dismissed 2001) concurring filed a July (nonpubl- JOHNSON, J.,
ished). joined. opinion in which applicant previously Thus could See have raised these .claims. KELLER, P.J., with note. concurs Section Texas Code Criminal significant Procedure. It is also that there WOMACK, J., the result. concurred in overwhelming circumstantial evidence of II, appellant’s guilt Kutzner KEASLER, J., concurring filed this Kutzner II offense is “strikingly similar JOHNSON, joined. opinion in J. offense, many ways” appel- to this and that decision to identity majority’s agree lant does not contest his I with the II, court, murderer Kutzner nor does he claim trial but judgment affirm the Landry, husband in this the victim’s ma- disagree I with the respectfully must else committed the Kutz- anyone case or jority’s interpretation of Articles 64.03 and *15 ner II offense. only judg- the 64.05. I therefore concur ment. and the forego-
Based on these factors discussion, decline to the ing we disturb First, the conclusion disagree I with 64.03(a)(2)(B) convicting de- court’s concerning an phrase the in Article 64.05 appellant prove failed to termination that is “appeal under Article 64.03” preponderance of the evidence that unam- It not. Art. 64.03 is ambiguous. request his for DNA “is not made (a)(1) into subsections biguously separated unreasonably delay to the execution of sen- (a)(2). (a)(1) consists of Subsection justice.” Point tence or administration of “finds.” Sub- facts which the trial court of error three is overruled. (a)(2), hand, consists section on the other the con- legal as to whether conclusions C. certain ele- person has established victed four, appellant In claims point of error of the evidence. by preponderance ments that this Court should vacate the convict- “findings” under Article 64.05 refers to ing order and remand the case court’s under only “findings” Art. and the proceedings there for further because (a)(1). Art. are in subsection 64.03 those findings of fact fail to convicting court’s Nevertheless, ap- limiting defendants’ majority necessary of the facts resolve the under subsection peals findings to fact to to decide whether is entitled (a)(1) Legis- is an result which absurd filed and whether he has his possibly have intended. lature could not delay. point purposes motion for courts, recognized appellate have We five, that this error claims Court Court, afford almost including this should court’s order should vacate the to a trial court’s determina- total deference erroneous and not the clearly because it is facts, review de judicial tion of but that we should independent of a product careful judicial inquiry into an issue clarity very The notion questions of law.1 novo ex- in all but the most encompasses meaning, a review of appellate review statute’s law, necessarily circumstance, in- is finished.”3 questions traordinary a trial court legal conclusions cludes plain lan- majority disregards the (a)(2). If the under subsection renders Art. and instead relies 64.03 guage Chapter 64 is to under right to history But that history. legislative all, include meaning at it must any plain when the statute’s not even relevant of law right conclusions clear, I here. cannot as it is language is 64.03(a)(2). under Article in this analysis with the Court’s agree majority that agree I therefore with the regard. can, indeed, the trial should review we (a)(2), court’s conclusions subsection Nevertheless, agree I with the Court’s rationale. disagree but I with the Court’s a reason- Kutzner fails to show holding. not have probability that he would able majority part company I also with the if excul- prosecuted or convicted even been interpretation phrase of the “a rea- on the through obtained patory results were probability exists that the sonable prosecuted or convict- testing. would not have been exculpatory if results had been obtained ed judgment I concur in Article testing” Court. 64.03(a)(2)(A). me, phrase, That unam- person to
biguously requires the convicted KELLER, P.J., I concurs with note: prose- show that he would have been analysis Keasler’s Nothing plain agree Judge in the with cuted or convicted. 64.03(a)(2)(A), of the statute to actual and with language language refers of Article innocence. applicant has failed his conclusion imposed by that meet the standard majority looks to the his- I concur in the provision. therefore tory Legis- to uncover indications issue, to that and otherwise judgment as *16 phrase proof mean lature intended this join opinion. the Court’s v. Boykin of actual innocence. But under State,2 proper it is not to even review history plain lan-
legislative unless the
guage ambiguous of the statute is either Here,
leads to an absurd result. neither Regardless case. court
history, appellate our role as an plain language
should be to enforce the possible. whenever The United statute Supreme Court has made this clear.
States case, statutory
“In construction the be- language of the
ginning point must be the
statute,
speaks
and when a statute
with
Co.,
State,
Drilling
Cowart v. Nicklos
955 S.W.2d
3. Estate
1. See Guzman
469, 475,
L.Ed.2d
112 S.Ct.
1997).
U.S.
(Tex.Crim.App.
(1992);
Manspeaker,
see also Demarest v.
184, 190, 111 S.Ct.
112 L.Ed.2d
498 U.S.
(Tex.Crim.App.1991).
2.