I respectfully disagree that the State has demonstrated that it is entitled to the extraordinary relief of a writ of mandamus. Mandamus against a trial judge is available only when that judge has: 1) violated a clear ministerial duty; ⁽¹⁾ or 2) committed a judicial act which is so clearly wrong as to be "beyond dispute." ⁽²⁾ In my view, Judge Greene has done neither.

Applicant and real-party-in-interest, Jesse Joe Patrick, was convicted of capital murder for the burglary-murder of Mrs. Nina Redd, an eighty-year old widow. The evidence at trial showed that the victim's "[t]hroat had been slashed, she had several fractured ribs, and there were bruises to her head, arms, chest, legs, and vaginal canal." ⁽³⁾ Extensive evidence linked applicant to the crime. Investigators matched applicant's palm print to a palm print taken from the victim's forced-open bathroom window. They found a rock stained with the victim's blood in applicant's yard, just two houses away from the victim's home. Inside applicant's home, they found his sock, also stained with Mrs. Redd's blood. Hair samples found at the scene were consistent with applicant's hair; applicant's teeth marks matched those on the victim's arm; and the knife used to kill Mrs. Redd was identified as appellee's. Furthermore, money was taken from Mrs. Redd's home and evidence showed that appellee had bought a car for $850 cash on the day of the murder. When he was arrested in Mississippi, appellee gave three different and inconsistent explanations for how he obtained the money that he used to buy the car and leave the state. ⁽⁴⁾ He also gave a written confession stating that he tried to have sexual intercourse with the victim before killing her but could not get an erection. ⁽⁵⁾

Additionally, the medical examiner found spermatozoa in the victim's vaginal canal. Apparently, no DNA testing of that material was made before trial. It is the DNA testing of this evidence that is the subject of the present mandamus action.

Appellee filed a motion under newly enacted Chapter 64 of the Texas Code of Criminal Procedure which prescribes when and how a convicted person may obtain DNA testing. ⁽⁶⁾ The Texas Legislature enacted this Chapter in 2001, and it became effective on April 5, 2001. Appellee filed his motion one month later, in May, 2001. On August 31, 2001, the trial judge denied appellee's request for state-sponsored and paid-for DNA testing under article 64.03. She found that appellee had failed to prove that "a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." ⁽⁷⁾ No one quarrels with this ruling. But when appellee's counsel stated that he was willing to pay for the DNA testing, the trial judge ordered that applicant be permitted to have the spermatozoa sample tested by an independent forensic laboratory.

No one suggests that the trial judge was required to enter such an order or that applicant was entitled to such forensic testing simply because his attorney was willing to pay for it. He clearly was not entitled to any such testing because article 64.03 explicitly states that "[a] convicting court may order forensic DNA testing under this chapter only if..." the convicted person shows, by a preponderance of the evidence, that exculpatory DNA testing would establish a "reasonable probability" that he would not have been prosecuted or convicted had the jury known of this exculpatory evidence. In this case, there was ample, if not overwhelming, circumstantial and forensic evidence that appellee murdered Mrs. Redd, without any DNA testing of the sperm. At most, a negative DNA test would merely suggest that another person participated in the crime with applicant. A negative DNA test in this case would not exonerate applicant. And that is what the trial judge concluded. Nonetheless, she allowed applicant to conduct independent DNA testing at his own expense. After a representative from the independent laboratory retrieved the semen sample from the court reporter, and delivered it to the GeneScreen lab, the Dallas County District Attorney's Office filed its writ of mandamus and appeal with this Court, which ordered a halt to the testing and transportation of the sample to the Department of Public Safety pending disposition of this writ and appeal.

The legal issue in this case is whether the trial judge had jurisdiction and judicial discretion to allow DNA testing, at the inmate's expense, after she ruled that even negative forensic results would fail to create a reasonable probability that applicant would not have been prosecuted or convicted of capital murder.

The first question is whether the trial judge had jurisdiction to enter any order in this case as the trial and direct appeal were complete and applicant had no writ of habeas corpus pending. ⁽⁸⁾ But for the enactment of Chapter 64 just one month before applicant filed his motion, the trial judge would not have had jurisdiction to enter any order relating to post-conviction DNA testing. Indeed, this lack of jurisdiction was undoubtedly part of the Legislature's purpose for enacting Chapter 64- to provide a statutory mechanism for post-conviction DNA testing. ⁽⁹⁾ Because applicant filed a proper motion under article 64.01, the trial court had jurisdiction to entertain his request for DNA testing. ⁽¹⁰⁾ Did the trial judge have continuing jurisdiction to act upon a DNA request, once she stated on the record that applicant failed to demonstrate a reasonable probability that he would not have been prosecuted or convicted even if DNA testing showed that he was not the source of the sperm found at the scene? ⁽¹¹⁾ This is a question of first impression, ⁽¹²⁾ which arose a mere four months after the statute had been enacted. When the trial judge entered her order, no appellate decision concerning the scope of or procedures under Chapter 64 existed.

Reasonable minds could differ upon this question. The majority is not incorrect in stating that "[t]he 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." ⁽¹³⁾ Indeed, Chapter 64 does not provide any support for the trial court's order. The trial court's jurisdiction was properly invoked; the trial court appropriately entered a negative finding under article 64.03; she explicitly stated that she denied applicant's request for testing under Chapter 64; and then she nonetheless permitted appellee to conduct DNA testing at his own expense. That final order was not, and could not have been, made pursuant to Chapter 64 because article 64.03 explicitly limits a convicted person's right or entitlement to state-sponsored DNA testing to scenarios in which negative results would create a reasonable probability of exoneration.

But once the jurisdiction of a court is properly invoked, does that court have any discretion to enter orders which are not explicitly authorized? Depending upon the circumstances, one might follow one of two contradictory maxims: "Whatever is not forbidden is permitted," ⁽¹⁴⁾ or conversely, whatever is not explicitly authorized is forbidden.

In its brief, the State cites Yarbrough v. State ⁽¹⁵⁾ for the proposition that, once a conviction is affirmed on appeal, the trial court has limited jurisdiction to do whatever is reasonably necessary to carry out the appellate court's judgment and mandate. ⁽¹⁶⁾ That is correct. As this Court explained in Yarbrough, once post-conviction jurisdiction attaches, the trial court may perform acts which, although not explicitly authorized, are implicit to the jurisdictional purpose. ⁽¹⁷⁾ Not all judicial authority to act is explicit:

Of course, jurisdiction is granted by law when it is either directly conferred or ought to be implied from the jurisdiction directly granted. In other words, our courts have such powers and jurisdiction as are directly provided by law, and, in addition thereto, they have such further powers and jurisdiction as are reasonably proper and necessary, that is, as ought to be inferred, from the powers and jurisdiction directly granted. ⁽¹⁸⁾

As Judge Meyers has previously stated, this Court has "recognized that, in addition to express grants of power conferred by constitution, statute, or common law, courts have inherent and implied powers which provide a much broader foundation upon which to act." ⁽¹⁹⁾

In addressing the post-conviction DNA statute recently, this Court held that it is required to interpret the statute in a manner that effectuates the Legislature's intent. ⁽²⁰⁾

In Kutzner, this Court held that the Legislature's purpose in enacting Chapter 64 was to provide a statutory mechanism to free innocent people through DNA testing. ⁽²¹⁾ Thus Chapter 64 was intended to increase a trial court's post-conviction jurisdiction and increase that judge's authority to order DNA testing. There is no indication that the Legislature intended to decrease trial court jurisdiction or diminish its authority when it enacted Chapter 64.

Appellee's counsel has argued that he believes the DNA testing would show appellee to be the contributor of the semen, but that his client now has no memory of the offense and wants "to put the matter to rest." This, of course, is not an appropriate rationale for ordering DNA testing under

Chapter 64. ⁽²²⁾ The statute is intended to exonerate the innocent, not to further inculpate those already found guilty. Nonetheless, is such a test "clearly and indisputably" forbidden by law if: 1) the convicted person pays for the testing; 2) such testing creates no delay; and 3) the convicted person has not requested any stay in the execution of his sentence during the time it takes to conduct the testing? ⁽²³⁾ I cannot conclude that the trial court's order in this case is clearly and indisputably beyond the borders of the law. It is, at least, subject to some reasonable debate.

Absent any showing of actual and demonstrable harm to the interests of society, the State, or the orderly administration of justice, ⁽²⁴⁾ I would conclude that the State has failed to show that Judge Greene violated a ministerial duty or issued an order so clearly and indisputably lacking any legal merit as to be "beyond dispute." A writ of mandamus is a drastic remedy and should be invoked only in truly extraordinary situations. ⁽²⁵⁾

Therefore, I would deny the State's request for a writ of mandamus.

Cochran, J.

Filed: September 11, 2002

Publish

1. Banales v. Court of Appeals for the Thirteenth Judicial District, ___ S.W.3d ___, ___, 2002 Tex. Crim. App. LEXIS 108, *3 (Tex. Crim. App. 2002) (original proceeding). "An act is 'ministerial' if it constitutes a duty clearly fixed and required by law.... [A] 'ministerial' act is one which is accomplished without the exercise of discretion or judgment." State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987).

In Garcia v. Dial, 596 S.W.2d 524 (Tex. Crim. App. 1980), for example, the trial court initially granted the defendant's motion to dismiss the indictment. Id. at 526. The trial court later entered an order attempting to reinstate the indictment. Id. This Court held that once the indictment was dismissed, the trial court lost jurisdiction over the cause and had no power to enter any further orders. Id. at 528. In directing the trial court to set aside its order, we held "that the entry of such order of dismissal under these circumstances is strictly ministerial in nature." Id. at 529. Thus, once a court loses jurisdiction to act, it cannot rise like a phoenix from the ashes and reassert its jurisdiction without statutory authority.

2. Banales, ___ S.W.3d at__ , 2002 Tex. Crim. App. LEXIS at *4-5 (mandamus is unavailable when issue is one "of first impression whose merits are not so 'clear and indisputable' as to be 'beyond dispute'"); see also State of Texas ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 928 (Tex. Crim. App. 2001); State ex rel. Wade v. Mays, 689 S.W.2d 893, 898-99 (Tex. Crim. App. 1985).

3. Patrick v. State, 906 S.W.2d 481, 485 (Tex. Crim. App. 1995).

4. Id. at 485-86.

5. This confession was not introduced at trial, but was discussed during the DNA hearing.

6. See Tex. Code Crim. Proc. arts. 64.01-64.05 (Vernon Supp. 2002). This statute was passed in 2001

7. Tex. Code Crim. Proc. art. 64.03(a)(2)(A).

8. "'It is . . . axiomatic that where there is no jurisdiction, "the power of the court to act is as absent as if it did not exist," and any order entered by a court having no jurisdiction is void.' " Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (quoting Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Crim. App. [Panel Op.] 1980).

9. See Hearings on SB 3 before the Senate Jurisprudence Committee, 77^th Leg. R.S., (www.senate.state.tx.us, Senate Jurisprudence Committee Video and Audio Archives at 0:26:35-0:27:00, February 12, 2001). See also DNA & Post Conviction Press Conference, 77^th Leg., R.S., (www.senate.state.tx.us, Senate Jurisprudence Video and Audio Archives at 0:17:44-0:18:05, January 17, 2001)(discussing purposes of proposed post conviction DNA testing legislation).

10. Article 64.01 sets forth the requisites of a convicted person's motion for forensic DNA testing. There is no dispute in this case that appellee's motion was properly filed and presented under that statutory provision.

11. Clearly the district court did not have full or plenary jurisdiction over the entire case by virtue of a motion filed under Chapter 64, but the issue is whether she had jurisdiction to enter an order relating to Chapter 64 forensic DNA testing which is not explicitly authorized.

12. A mere four months ago this Court stated that mandamus against a trial judge is not available when his decision raises an issue of first impression, because such an order calls for the exercise of judicial discretion. Banales, ___ S.W.3d at ___., 2002 Tex. Crim. App. LEXIS 108, *4.

13. Majority op. at *4.

14. Johann Christoph Friedrich von Schiller, Wallensteins Lager, sc. vi (1798); see, e.g, Morrison v. State, 845 S.W.2d 882, 905 (Tex. Crim. App. 1992) (Benavides, J., dissenting) ("trial judges should be allowed to implement truth- finding measures not forbidden by law so long as they do not thereby compromise fundamental standards of the adversary system").

15. 703 S.W.2d 645, 649 (Tex. Crim. App. 1985).

16. Id. at 648.

17. This Court stated:

We also agree with the appellant that there is not anything of an express nature in our law that might authorize a trial court to put a case on the docket "for sentence after mandate," which is the cryptic phrase the trial judge in this cause used. However, the fact that there is no express statutory authority authorizing a trial court to put a case on its docket after the mandate of an appellate court has issued does not rule out implicit authority. In this instance, if the trial court had implicit authority to put the appellant's case on its docket after this Court's mandate issued, we find that it does not matter what the setting was labeled.

Id.

18. Ex parte Hughes, 133 Tex. 505, 510,129 S.W.2d 270, 273-74 (1939).

19. Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) (Meyers, J., concurring) (citing Johnson v. State, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991) which cited Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex. 1979)).

In Awadelkariem, for example, this Court stated that, although no statute or rule expressly authorizes a judge to rescind an order granting a motion for new trial, the trial court nonetheless did have such inherent jurisdiction and authority. Id. at 726-28.

20. Kutzner v. State, 75 S.W.3d 427, 432 (Tex. Crim. App. 2002) ("[our constitutional duty, of course, is to effectuate what the Legislature intended when it enacted the statute").

21. Id. at 439, n.23 (quoting record of legislative hearings).

22. One wonders what the result should be if the State had requested post-trial DNA testing of this same semen. Suppose, hypothetically, that another person confessed to being with applicant during the burglary/murder and to raping the victim. If the State's argument in this mandamus action were accepted, it, like applicant, would be forbidden from regaining custody of the trial evidence from the court reporter to have the semen tested because such post-conviction testing is not expressly authorized by statute. Either the trial court does or does not have jurisdiction to allow post-conviction DNA testing outside of Chapter 64. Chapter 64 does not explicitly authorize the State to conduct post-trial forensic testing of evidence admitted at trial, nor would such a request appear to be in accord with the Legislature's purpose in enacting that chapter. Yet I cannot conclude that it is abundantly clear that an order permitting the State to conduct post-conviction DNA testing is forbidden and thus subject to relief on a writ of mandamus.

23. If such an order did create unreasonable delay or if the trial court did grant a stay in the execution of the sentence as a part of the order, the State would have a strong case for its entitlement to a writ of mandamus to prevent tactics which merely "muddy the waters" and create delay. That is not the situation in this case.

24. The State argues that an order permitting DNA testing paid for by the inmate, violates the Equal Protection Clause because other indigent inmates could not do the same. This argument misses the point. Applicant does not argue that he is entitled to such testing. He simply argues that the trial judge had the discretion to permit it. The State also argues that applicant's post-conviction equitable remedy, if any, is solely by means of a writ of habeas corpus. But applicant is not attacking either his conviction or his sentence; he is merely requesting a forensic test.

25. See State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) ("When a trial judge is presented with an issue where there is no factual dispute, and clear, binding and unequivocal precedent compels resolution of the issue in only one manner, the trial judge has a ministerial duty to resolve that issue in that manner; the trial judge's actions are compelled by law").