Kutzner v. State

In Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002), the Court said that the language and legislative history of 64.03(a)(2)(A) do not contemplate the trial court's consideration of new post-trial information. Kutzner, 75 S.W.3d at 439. In Kutzner, we assumed, without deciding, that Article 64.03(a)(2)(A) would allow the trial court to consider new information. Ibid. The Court concluded that the new information that Kutzner provided in his motion for DNA testing did not undermine the trial court's 64.03(a)(2)(A) finding because ample evidence existed in the record that defeated the claim that a reasonable probability existed that Kutzner would not have been prosecuted or convicted if the DNA results were exculpatory. The Court observed that Senate Bill 3 (now codified as Chapter 64) as originally drafted did not authorize an appeal of any of the trial judge's Chapter 64 determinations. Tex. S.B. 3, 77th Leg., R.S., 2001 Tex. Gen. Laws 2; Kutzner, 75 S.W.3d at 433. Later, by amendment, the Senate Jurisprudence Committee added wording to allow appeal of a finding under Article 64.04. See SENATE JURISPRUDENCE COMM., BILL ANALYSIS, Tex. S.B. 3 at 3-4, 77th Leg., R.S., (February 13, 2001). The language authorizing appeal of findings under Article 64.03 was not added until even later, by an additional amendment. See HOUSE CRIMINAL JURISPRUDENCE COMMITTEE, BILL ANALYSIS, Tex. S.B. 3 at 3, 77th Leg., R.S., (March 4, 2001); see also Kutzner at 434. In Kutzner, this Court acknowledged that, before specifically adding the provision for appeals as to Article 64.03, Article 64.05 necessarily restricted appeals solely to those matters falling under Article 64.04. Kutzner, 75 S.W.3d at 434.