The opinion
Opinion issued June 6, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00081-CR
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ROBERT WHITFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 87th District Court
Freestone County, Texas
Trial Court Case No. 9397B*
*
The Texas Supreme Court transferred this appeal from the Court of Appeals
for the Tenth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
OPINION
Appellant Robert Whitfield has filed an appeal solely challenging the trial
court’s finding under article 64.04 of the Texas Code of Criminal Procedure that it
was not reasonably probable that he would not have been convicted if the results of
DNA testing had been available during his trial. See TEX. CODE CRIM. PROC. ANN.
art. 64.04 (West Supp. 2012). He contends that there was insufficient evidence
supporting the trial court’s finding. We dismiss the appeal for lack of jurisdiction.
The Court of Criminal Appeals held in Holloway v. State, 360 S.W.3d 480
(Tex. Crim. App. 2012), that a court of appeals should not address questions of the
sufficiency of the evidence to support a trial court’s finding under article 64.04.
The Court held that because a writ of habeas corpus is only way to obtain
postconviction relief based on DNA testing, any opinion of a court of appeals
reviewing a trial court’s findings under article 64.04 would be advisory. We lack
jurisdiction to render advisory opinions. Armstrong v. State, 805 S.W.2d 791, 794
(Tex. Crim. App. 1991); Ex parte Ruiz, 750 S.W.2d 217, 218 (Tex. Crim. App.
1988); see also TEX. CONST. art. II, § 1.
We are not persuaded by the dissent’s attempt to distinguish Holloway on
the reasoning that it involved the State’s appeal from a ruling in favor of the
convicted person. The State is expressly authorized to appeal from an order issued
under Chapter 64. TEX. CODE CRIM. PROC. ANN. arts. 44.01(a)(6), 64.05. If the
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review of an article 64.04 finding is advisory on the State’s direct appeal, it is also
advisory when the appeal arises from a finding adverse to the Chapter 64 movant.
Accordingly, following the holding of the Court of Criminal Appeals in
Holloway, we dismiss the appeal.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting
Publish. TEX. R. APP. P. 47.2(b).
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