NO. 74,135







Keasler, J., filed this concurring opinion in which Johnson, J. joined.


I agree with the majority's decision to affirm the judgment of the trial court, but I must respectfully disagree with the majority's interpretation of Articles 64.03 and 64.05. I therefore concur only in the judgment.

First, I disagree with the conclusion that the phrase in Article 64.05 concerning an "appeal of a finding under Article 64.03" is ambiguous. It is not. Art. 64.03 is unambiguously separated into subsections (a)(1) and (a)(2). Subsection (a)(1) consists of facts which the trial court "finds." Subsection (a)(2), on the other hand, consists of legal conclusions as to whether the convicted person has established certain elements by a preponderance of the evidence. Article 64.05 refers to "findings" under Art. 64.03, and the only "findings" under Art. 64.03 are those in subsection (a)(1).

Nevertheless, limiting defendants' appeals to fact findings under subsection (a)(1) is an absurd result which the Legislature could not possibly have intended. We have recognized that appellate courts, including this Court, should afford almost total deference to a trial court's determination of facts, but that we should review de novo questions of law. (1) The very notion of appellate review encompasses a review of questions of law, which necessarily includes the legal conclusions a trial court renders under subsection (a)(2). If the right to an appeal under Chapter 64 is to have any meaning at all, it must include the right to appeal the conclusions of law under Article 64.03(a)(2).

I therefore agree with the majority that we can, and indeed, should review the trial court's conclusions under subsection (a)(2), but I disagree with the Court's rationale.

I also part company with the majority on the interpretation of the phrase "a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory

results had been obtained through DNA testing" in Article 64.03(a)(2)(A). That phrase, to me, unambiguously requires the convicted person to show that he would not have been prosecuted or convicted. Nothing in the plain language of the statute refers to actual innocence.

The majority looks to the legislative history to uncover indications that the Legislature intended this phrase to mean proof of actual innocence. But under Boykin v. State, (2) it is not proper to even review the legislative history unless the plain language of the statute is either ambiguous or leads to an absurd result. Here, neither is the case. Regardless of the legislative history, our role as an appellate court should be to enforce the plain language of a statute whenever possible. The United States Supreme Court has made this clear. "In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." (3)

The majority disregards the plain language of Art. 64.03 and instead relies on the legislative history. But that history is not even relevant when the statute's plain language is clear, as it is here. I cannot agree with the Court's analysis in this regard.

Nevertheless, I agree with the Court's holding. Kutzner fails to show a reasonable probability that he would not have been prosecuted or convicted even if exculpatory results were obtained through DNA testing.

I concur only in the judgment of the Court.

DATE DELIVERED: April 10, 2002


1. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

2. 818 S.W.2d 782 (Tex. Crim. App. 1991).

3. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992); see also

Demarest v. Manspeaker, 498 U.S. 184, 190 (1991).