Charles Lee Hawkins v. State

Opinion

Opinion issued September 26, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00667-CR ——————————— CHARLES LEE HAWKINS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 479960

MEMORANDUM OPINION

Appellant, Charles Lee Hawkins, attempts to appeal from the trial court’s

order denying his request for appointed counsel to assist in filing for post-

conviction DNA testing under Texas Code of Criminal Procedure article 64.01. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2012). We dismiss the

appeal.

“[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. ANN.

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 an immediately appealable

order. Id. 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. Id. If a

reviewing court determines that the trial court erred by failing to appoint counsel,

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 appellant 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 lack jurisdiction to consider the appeal.

See id.

Accordingly, we dismiss this appeal for want of jurisdiction. See id.; see

also TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.

2 PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).