Opinion
NO. 01-18-00087-CR
05-22-2018
PATRICK LEE CAMPBELL, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court Galveston County, Texas
Trial Court Case No. 10CR3689
MEMORANDUM OPINION
Patrick Lee Campbell attempts to appeal from the trial court's order denying his request for appointed counsel to represent him in filing for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 64.01. Because the order denying appointment of counsel is not an immediately appealable order, we dismiss.
"[A] motion for appointed counsel is a preliminary matter that precedes the initiation of Chapter 64 proceedings." Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010). "At this stage, a convicted person has only contemplated the filing of a motion for DNA testing." Id. (citing TEX. CODE CRIM. PROC. art. 64.01(c) (providing that defendant must inform trial court that he "wishes" to submit motion for DNA testing)). Thus, a trial court's order denying a request for the appointment of counsel under article 64.01(c) is not immediately appealable. Id.; see TEX. R. APP. P. 25.2(a)(2). Any alleged error made by the trial court in refusing to appoint counsel must be raised in an appeal from the final order denying DNA testing. Gutierrez, 307 S.W.3d at 323. If a reviewing court determines that the trial court erred by failing to appoint counsel at that point, the case is then remanded to the trial court for the appellant to file a subsequent motion for DNA testing with the assistance of counsel. Id.
Here, because Campbell attempts to appeal the trial court's denial of his motion for the appointment of counsel, rather than a final order denying a motion for DNA testing under article 64.01, we have no jurisdiction to consider the appeal. See id. Accordingly, we dismiss this appeal for lack of jurisdiction. See id.; see also TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Bland, Lloyd, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).