Opinion
No. 14-08-00304-CR
Memorandum Opinion filed May 8, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 486906.
Panel consists of Chief Justice HEDGES and Justices FOWLER and BOYCE.
MEMORANDUM OPINION
This is an attempted appeal from the trial court's denial of appellant's request for appointment of counsel pursuant to Chapter 64 of the Texas Code of Criminal Procedure. According to the record, the trial court denied the request on January 11, 2008, but appellant's notice of appeal was not filed until March 28, 2008. Thus, the notice of appeal is untimely to invoke this court's jurisdiction. See TEX. R. APP. P. 26.2(a) (requiring notice of appeal to be filed within 30 days after the trial court enters an appealable order). Moreover, the order denying the appointment of counsel is not a final, appealable order. The record contains no order ruling on a request for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. Generally, an appellate court only has jurisdiction to consider an appeal by a criminal defendant where there has been a final judgment of conviction. Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961); McKown v. State, 915 S.W.2d 160, 161 (Tex.App.CFort Worth 1996, no pet.). The exceptions include: (1) certain appeals while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex.Crim.App. 1997); (2) appeals from the denial of a motion to reduce bond, TEX. R. APP. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex.App.CDallas 1998, no pet.); McKown, 915 S.W.2d at 161. In addition, an appeal may be taken from the trial court's findings after denial of post-conviction DNA testing or after the results of such DNA testing have been examined. See TEX. CODE CRIM. PROC. ANN. art. 64.05 (Vernon 2006). Because appellant's notice of appeal was not filed timely and this appeal does not fall within the exceptions to the general rule that appeal may be taken only from a final judgment of conviction, we lack jurisdiction to consider this appeal. Accordingly, the appeal is ordered dismissed.
We note the record does not contain a motion for forensic DNA testing, accompanied by an affidavit, as required by article 64.01. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon 2006).