Tony Chavez v. State ( 2010 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NOS.  2-10-250-CR

       2-10-251-CR

TONY CHAVEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Appellant Tony Chavez filed a notice of appeal from a May 21, 2010 order denying his Second Motion for Appointment of Counsel Under Article 64.01 of the Code of Criminal Procedure for Post-Conviction Forensic DNA Testing.   See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2009).   Concerned that we did not have jurisdiction over these appeals, we sent a letter to Appellant requesting a response by July 9, 2010, showing grounds for continuing the appeals.  On July 8, 2010, Appellant filed a response contending that DNA testing should have been allowed because identity was the central issue in the underlying cases.  However, the court of criminal appeals recently held that “the decision to deny appointed counsel is not an ‘appealable order’ under Rule 25.2(a)(2).”   Gutierrez v. State , 307 S.W.3d 318, 323 (Tex. Crim. App. 2010); see Tex. R. App. P. 25.2(a)(2).  Because Appellant attempts to appeal the trial court’s denial of his motion for appointment of counsel rather than a final order denying a motion for DNA testing under article 64.01, we have no jurisdiction to consider these appeals. See Gutierrez , 307 S.W.3d at 322–23.  Accordingly, we dismiss these appeals for lack of jurisdiction.   See id ; Tex. R. App. P. 43.2(f) .

PER CURIAM

PANEL:  GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  July 29, 2010

FOOTNOTES

1:

See Tex. R. App. P. 47.4.