THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. 74,191 & 74,227

STATE OF TEXAS

v.

JESSE JOE PATRICK, Appellee

STATE OF TEXAS ex. rel. BILL HILL, Relator

v.

HONORABLE KAREN GREENE, Judge, 282^nd District Court

APPEAL FROM ORDER OF DNA TESTING

AND APPLICATION FOR WRIT OF MANDAMUS

FROM DALLAS COUNTY

PRICE, J., recused himself because he was the trial judge.

Today we are confronted with the question of whether a trial court has the authority to order DNA testing even though the applicant has failed to meet the requirements of the DNA testing statute (Chapter 64). ⁽¹⁾

Patrick (hereinafter referred to as "applicant") was convicted of capital murder and sentenced to death. We affirmed his conviction on direct appeal and denied relief on his application for writ of habeas corpus. Applicant subsequently applied under Chapter 64 for DNA testing of spermatozoa samples. These samples were in the possession of the District Attorney's office. ⁽²⁾ The trial court conducted a hearing on the motion on August 31, 2001 and issued its order on September 21, 2001. In its order, the trial court found that "the defendant has failed to establish by a preponderance of the evidence that there exists a reasonable probability that the defendant would not have been prosecuted or convicted if exculpatory results would have been obtained through DNA testing of the spermatozoa samples." As a result, the trial court stated in its order that "The Court therefore denies the defendant's request for DNA testing of the spermatozoa samples at State expense under Chapter 64 of the Code of Criminal Procedure." Nevertheless, because applicant represented that he was willing to pay for the testing, the trial court ordered testing at applicant's expense. Although there is overwhelming evidence that applicant murdered Mrs. Redd, Applicant wants the testing, he argues, because he cannot remember the murder. Applicant's attorney concedes that, "We all know what the results are likely to be," and that the test, "is unlikely to help [his] client."

The State appealed the trial court's order and also filed an application for writ of mandamus. We granted leave to file the application for writ of mandamus and issued an order staying the trial court's order for DNA testing.

Although the State argues that permitting an appeal of the trial court's DNA order is consistent with the spirit of Article 44.01, the State does not claim that Article 44.01 specifically authorizes its appeal, and we find nothing in that article authorizing an appeal here. The State does contend that its appeal is authorized by Article 64.05, which provides:

An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.

The State contends that this language places no limitation on who may take an appeal, and due to its general wording, authorizes an appeal by either the inmate or the State. The State then concludes that Article 64.05's general authorization to appeal extends to the present case.

We disagree. Article 64.05 cannot authorize an appeal here because the State is not appealing the finding that the court made under Chapter 64. The trial court expressly found that Chapter 64's requirements were not met and denied the application for testing pursuant to that statute. The State does not complain of that finding. And the trial court's order granting DNA testing does not purport to be based upon Chapter 64. Consequently, there is no basis for an appeal by the State. And although applicant has argued that the findings are wrong, and he could have appealed from them, he has not done so. The State's appeal is dismissed.

To be entitled to a writ of mandamus, the State must demonstrate that: (1) there is no other adequate legal remedy, and (2) there is a clear and indisputable right to the relief sought. ⁽³⁾ Because the State cannot appeal the trial court's order in this case, the State has no remedy other than a writ of mandamus. Thus, we move to the second question, whether the State has a clear and indisputable right to the relief sought.

When a conviction has been affirmed on appeal and the mandate has issued, general jurisdiction is not restored in the trial court. ⁽⁴⁾ The trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out ⁽⁵⁾ and to perform other functions specified by statute, such as finding facts in a habeas corpus setting, ⁽⁶⁾ or as in this case, determining entitlement to DNA testing. The trial court did not cite a statutory provision, or any other source of authority, that would authorize the order for DNA testing, and we are unaware of any source of authority for this action. As we have previously observed, the order was based neither upon Chapter 64 nor upon a pending application for writ of habeas corpus. ⁽⁷⁾ The trial court was therefore clearly and indisputably without jurisdiction to issue the order in question.

The dissent contends that the trial court's action was not so clearly wrong as to be beyond dispute. In support of this contention, the dissent cites the maxim "whatever is not forbidden is permitted." ⁽⁸⁾ Whatever validity that maxim may have as a general matter, it does not apply here. Without jurisdiction, the trial court has no power to act. Consequently, a source of jurisdiction must be found to authorize the trial court's orders. The dissent contends that, "once post-conviction jurisdiction attaches, the trial court may perform acts which, although not explicitly authorized, are implicit to the jurisdictional purpose." ⁽⁹⁾ But, as the dissent concedes, these "implicitly authorized" acts must be in furtherance of some other action for which there is an explicit grant of jurisdiction. ⁽¹⁰⁾ The dissent finds Chapter 64 to be an explicit grant of jurisdiction. ⁽¹¹⁾ But the dissent does not explain how the trial court's order in this case furthers its Chapter 64 jurisdiction. If, for example, the requirements under Chapter 64 for testing had been met, and testing was conducted, the trial court might legitimately order the appearance of witnesses involved in the testing process, if such appearance was deemed necessary for the trial court to make findings under Article 64.04. But here, Chapter 64's requirements were not met, and so testing was not authorized under the statute. The dissent does not, and indeed cannot, explain how a trial court's jurisdiction under the DNA testing statute is furthered by testing that is not authorized under that statute.

The dissent contends that an unresolved question exists as to whether the trial court has "continuing jurisdiction" after it determines that the applicant has failed to meet Chapter 64's requirements. ⁽¹²⁾ But the question posed is not one of "continuing jurisdiction" but whether the statute authorizes the trial court to issue an order not authorized by the statute. The answer is obvious from the question. The Legislature could have given the trial court discretionary authority under Chapter 64 to order DNA testing when the conditions for compelling DNA testing were absent. The Legislature did not do so. ⁽¹³⁾

The dissent further contends that the Court said in Awadelkariem v. State ⁽¹⁴⁾ that the trial court has "inherent jurisdiction and authority" to perform certain acts. ⁽¹⁵⁾ But nothing in Awadelkariem, either in the Court's opinion or in Judge Meyers' concurring opinion, suggests that there is such a thing as "inherent jurisdiction." Jurisdiction cannot be "inherent;" it is conferred by constitution or by statute. As Judge Meyers says in his concurrence, a trial court's ability to act "is limited, however, by the court's retention of jurisdiction or statutory authority over the matter." Awadelkariem concerned the power of a court to act while it still had jurisdiction, not whether a court could act without jurisdiction. Jurisdiction expires when a case becomes final or is taken to a higher court. ⁽¹⁶⁾ Any inherent powers possessed by the trial court as a result of its jurisdiction under Chapter 64 would necessarily be limited by Chapter 64. Thus, Awadelkariem might support a trial court's decision to rescind an order granting or denying DNA testing under Chapter 64 (for a limited time), but that case cannot be invoked to support a non-Chapter 64 basis for ordering DNA testing.

The dissent argues, correctly, that prior to the enactment of Chapter 64, the trial court would not have had jurisdiction to enter any order relating to post-conviction DNA testing. The dissent then finds inherent jurisdiction stemming from the filing of the Chapter 64 motion. But if the law is that the return, by statute, of jurisdiction to a trial court for a limited purpose invests the court with jurisdiction to act in matters other than those dictated by the statute, then that law would not be limited to DNA testing. If the trial court has jurisdiction to order DNA testing outside the statute, then it would have jurisdiction to enter or lift a stay of execution. Similar consequences could occur for other statutes conferring limited jurisdiction upon trial courts. The remand of a case to the trial court under Article 11.07, for instance, would allow the trial court to enter orders beyond the scope of our remand order because the trial court would have jurisdiction over the case. A remand for a trial court to make findings of fact under Art. 38.22, § 6 would create jurisdiction for the court to enter other orders.

The dissent also contends that the trial court should be empowered to order DNA testing at applicant's urging because the court would be empowered to order DNA testing if requested by the State. ⁽¹⁷⁾ This "reciprocity" theory assumes that the trial court has some generalized authority to issue such an order on behalf of the State; it does not. If the material is not within the possession of the prosecution or law enforcement, a search warrant could be issued if there were reasonable grounds to believe the DNA would lead to a perpetrator. Or a subpoena could be issued pursuant to a grand jury investigation. The State is no more entitled than a convicted person to an order compelling DNA testing simply because it wants one. Of course, the State could conduct DNA testing of material within the prosecution's possession without a court order, and under those circumstances, nothing prevents the State and the defendant from agreeing to a DNA test paid for by the defendant. ⁽¹⁸⁾

Finally, the dissent claims that absent a showing of harm, the State has failed to show that the trial court violated a ministerial duty. But whether there was a violation of such a duty should not be established by whether there is harm. The dissent confuses the legal issue of jurisdiction with the question of whether the act harms anyone. Jurisdiction exists or it does not. If it does not exist, the trial court cannot act. Questions of harm are not pertinent to the issue before us.

The State is entitled to a writ of mandamus from this Court ordering the trial court to vacate its order. ⁽¹⁹⁾ As is our custom, we will withhold issuance of the writ and accord the trial court an opportunity to conform its actions to this opinion. ⁽²⁰⁾ Only if such action is not taken will the writ of mandamus issue. ⁽²¹⁾

KELLER, Presiding Judge

Date delivered: September 11, 2002

Publish

1. All references to chapters or articles are to the Code of Criminal Procedure unless otherwise indicated.

2. The boxed samples were admitted into evidence and, presumably, are now under the control of the district clerk.

3. See State ex. rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001).

4. Yarbrough v. State, 703 S.W.2d 645, 649 (Tex. Crim. App. 1985).

5. Id.

6. See Articles 11.07 & 11.071.

7. At least three judges on this Court have indicated, before the advent of Chapter 64, that there is "no other available procedure" than an application for writ of habeas corpus for obtaining DNA testing. Ex parte McGinn, 54 S.W.3d 324 (Tex. Crim. App. 2000)(Womack, J. concurring, joined by Keller and Johnson, JJ.).

8. Dissenting opinion at 6.

9. Id. at 7.

10. Id. (quoting Ex Parte Hughes, 133 Tex. 505, 510, 129 S.W.2d 270, 273-274 (1939)).

11. Id. at 5.

12. Id. at 5-6.

13. Even if the question were one of continuing jurisdiction, the dissent points to no authority that would permit such continuing jurisdiction. There are many statutes granting continuing jurisdiction in particular contexts. See TEX. BUS. & COM. CODE §17.47(e); TEX. CIV. PRAC. & REM. CODE §71.051(c); TEX. CODE CRIM. PROC., Art. 42.12, §§6(a), 7(a), 8(a), 10; TEX. FAM. CODE §§3.307(a), 152.202(a), 155.001(a); TEX. FIN. CODE §349.005(b); TEX. HEALTH & SAFETY CODE §§574.008(d), 713.009(c), 715.008(d). Clearly, the Legislature knows how to provide continuing jurisdiction if doing so is its intent.

14. 974 S.W.2d 721 (Tex. Crim. App. 1998).

15. Dissenting opinion at 8, 8 n. 19.

16. See Yarbrough, supra; Fruehauf Corp. v. Carillo, 848 S.W.2d 83, 84 (Tex. 1993); Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); Awadelkariem, 974 S.W.2d at 729 (Meyers, J. concurring).

17. Dissenting opinion at 9 n. 22.

18. Although the trial court has custody of the DNA material in the present case, that custody occurred only because the prosecution delivered the material to the court after the Chapter 64 motion was filed. Because the trial court has no authority to order testing, the State is entitled to the return of this material.

19. See State ex. rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994).

20. Id.

21. Id.