I am currently working on responding to Robert Whitfield’s Petition for Discretionary Review that was granted by the Court of Criminal Appeals on September 11, 2013. PDR was granted after the trial court determined the post-conviction DNA results were unfavorable to the defendant and he appealed. The First Court of Appeals determined it did not have jurisdiction to hear the appeal.

The issue is whether article 64.05 of the Code of Criminal Procedure vests appellate courts with jurisdiction to review unfavorable findings rendered under article 64.04 of that Code.

After reading Mr. Whitfield’s brief and relevant case law, I have decided that I agree with his argument – that the defendant has the right to appeal unfavorable findings and that Holloway v. State is limited to the State’s right to appeal.

Right now my position is: (1) the defendant has a right to appeal unfavorable findings by the trial court as expressly granted in article 64.05; (2) the State does not have a right to appeal favorable findings as decided in Holloway and can address the sufficiency of the evidence when the defendant files a writ.

I am concerned about arguing that the State does not have a right to appeal in this situation, but after reading Holloway, I don’t see any way around it. I would appreciate any thoughts on this case.

The main thing is to remember your ethical obligations while being a zealous advocate for the State. I found myself in a situation where a pro se 11.07 writ application actually is probably entitled to serious relief, it is just the way the writ application was written the defendant would not get it. I recommended, with elected DA approval and after consulting with the State Prosecuting Attorney, that an attorney be appointed to help the defendant do a proper writ application. We will see what the court says from there.

I certainly appreciate your concern about "arguing that the State does not have a right to appeal..." However, I do not think that you are bound to MAKE that argument. Your brief can essentially be: The State has reviewed and considered the arguments contained in the Appellant's brief, and has not located any authority contrary to that cited." So maybe this is a small distinction, but rather than making the argument, you are instead not refuting the argument of Whitfield.

So, give the legislature a chance to fix this if they want to, and give the appellant credit for making a reasoned argument.