X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision Texas Code of Criminal Procedure Article 64.03 makes no mention of independent expert review, and a decision by the judge concerning whether to appoint an expert for the appellant has no bearing on the areas within that article’s scope. Therefore, this attempt to appeal does not fall under Article 64.03. FACTS:The appellant, Bryan Eric Wolfe, was convicted of capital murder and sentenced to death. This court affirmed the conviction and sentence on March 6, 1996. The appellant subsequently moved for post-conviction forensics testing pursuant to Texas Code of Criminal Procedure Chapter 64 and requested money for appointment of an independent expert to review both the trial DNA test results and the post-conviction DNA test results. The convicting court granted the motion for post-conviction DNA testing, but denied the appellant’s request to be appointed an independent expert. The appellant appeals solely on the basis that he is entitled to have an independent expert appointed to review both sets of DNA test results for him. HOLDING:The appeal is dismissed. The convicting court’s decision to deny appointment of a post-conviction DNA expert does not fall within the purviews of Article 64.03 or 64.04 and is therefore not reviewable on appeal under Article 64.05. Article 64.03 provides the specific requirements that must be met for a judge to grant post-conviction DNA testing. It also specifies the procedure by which a laboratory is selected for testing, the standards that must be met by testing facilities, and the procedure for handling test results. In appellant’s case, the trial court granted the motion for post-conviction DNA testing under Chapter 64. However, appellant does not contest the granting of the post-conviction DNA testing. Nor does appellant contest the selection of the DPS laboratory as the testing facility, the qualifications of the laboratory, or how the test results were handled. Article 64.03 makes no mention of independent expert review, and a decision by the judge concerning whether to appoint an expert for the appellant has no bearing on the areas within that article’s scope. Therefore, this attempt to appeal does not fall under Article 64.03. Article 64.04 orders the trial judge to “hold a hearing and make findings as to whether the results are favorable” to appellant. It also sets out the standard by which the court may find the results favorable (“had the results been available before or during the trial of the offense, it is reasonably probable that the person would not have been prosecuted or convicted”). Here, the court made a finding that the results were not favorable. While appellant could, he does not contest that finding. In fact, appellant’s attorney admitted that the court’s ruling on the tests was fair and that the results were “unfavorable” under the Chapter 64 test. No language in Article 64.04 could be interpreted to expand the trial judge’s authority to rule beyond the “favorable” or “not favorable” findings. Chapter 64 authorizes the convicting court to order DNA testing, and no more. The court holds that because the legislature has not specifically provided for appeals of issues unless they are within 64.03 or 64.04, the trial court’s refusal to appoint an expert is not appealable under Chapter 64. The court acknowledges that House Bill 1011, amending Chapter 64, became effective on Sept. 1, 2003 (after appellant filed this appeal). The bill changed Article 64.05 from originally reading “[a]n appeal of a finding under Article 64.03 or 64.04,” to make it read, simply, “[a]n appeal under this chapter.” House Bill 1011 specifically states that any person who made a motion for DNA testing before Sept. 1, 2003 “is covered by law in effect when that motion was submitted.” The appellant filed this motion at a time when appeals were only allowed under ��64.03 and 64.04. The subject matter of his complaint does not fall within those sections. OPINION:Meyers, J.; Keller, P.J., Price, Johnson, Holcomb and Cochran, JJ., join. Womack and Hervey, JJ., concur in the judgment. Keasler, J., filed a concurring opinion. CONCURRENCE:Keasler, J. “The majority concedes that this statute is unambiguous, but it nevertheless proceeds to examine the legislative history”in order to highlight the harmony between the legislative intent and [its] holding.’ I vigorously oppose this unnecessary excursion.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.