      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00667-CR



                                    Ex parte Guadalupe Padilla


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
       NO. D-1-DC-95-952802, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Guadalupe Padilla was convicted in 2002 of the offense of aggravated sexual assault

of a child. This Court affirmed his conviction. See Padilla v. State, No. 03-02-00345-CR,

2003 Tex. App. LEXIS 5088 (Tex. App.—Austin June 19, 2003, pet. ref’d). On January 9, 2007,

Padilla filed his second pro se request for appointment of counsel to file a motion for post-conviction

DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2010). The district court

denied the request, but this Court reversed the district court’s order and held that Padilla was entitled

to appointment of counsel. See In re Padilla, No. 03-07-00712-CR, 2008 Tex. App. LEXIS 4540,

at *3 (Tex. App.—Austin June 18, 2008, no pet.).

                According to Padilla, DNA testing was subsequently ordered in June 2009 and

March 2010. The district court ordered additional testing on September 9, 2010, for reasons that

are not apparent from the record before us. Padilla has filed a pro se notice of appeal from the
district court’s September 9, 2010 order.1 However, the district court has entered a certification

providing that this is “not an appealable order, and the defendant has no right of appeal.” We agree.

               Texas Code of Criminal Procedure Chapter 64 defines the procedures for a convicted

person to obtain post-conviction DNA testing. In noncapital cases, an appeal under Chapter 64 “is to

a court of appeals in the same manner as an appeal of any other criminal matter.” Tex. Code Crim.

Proc. Ann. art. 64.05 (West 2006). Thus, “[i]n all appeals under Article 64.05, the ‘applicable filing

and time requirements found in the Rules of Appellate Procedure’ apply.” Gutierrez v. State,

307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (quoting Swearingen v. State, 189 S.W.3d 779, 781

(Tex. Crim. App. 2006)). According to the rules of appellate procedure, a criminal defendant may

only appeal from “a judgment of guilt or other appealable order.” See Tex. R. App. P. 25.2(a)(2);

see also Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006). Although there is no “judgment of

guilt” in Chapter 64 proceedings, an order denying DNA testing is considered a final, appealable

order. See Swearingen, 189 S.W.3d at 781.

               On the other hand, an order granting DNA testing is not a final order, because after

DNA testing is ordered, the convicting court is then required to examine the results of the testing,

hold a hearing, and make a finding as to whether, had the results been available during the trial of

the offense, it is reasonably probable that the person would not have been convicted. See Tex. Code




       1
           It is unclear why Padilla is appealing from this order. In his notice of appeal, Padilla
complains of appointed counsel’s “defective representation” during the Chapter 64 proceeding
and the district court’s alleged failure to grant Padilla’s “motion to waive counsel.” He then asks
this Court “to recognize Defendant’s Waiver of Counsel and allow Defendant to proceed pro se.”
However, in a pro se “supplemental notice of appeal,” Padilla asserts that on October 11, 2010, the
district court granted appointed counsel’s motion to withdraw.

                                                  2
Crim. Proc. Ann. art. 64.04 (West 2006). The defendant then appeals from the trial court’s findings

regarding the results of the testing. See id. art. 64.05; see also In re Morton, No. 03-08-00585-CR,

2010 Tex. App. LEXIS 93, at *10 (Tex. App.—Austin Jan. 8, 2010, no pet.) (holding that “in a

Chapter 64 proceeding the final order that denies forensic DNA testing, or that makes the required

findings following the granting of DNA testing, triggers the running of the notice-of-appeal deadline

as to all such orders in the proceeding”) (internal citations omitted).

               We do not have jurisdiction to review interlocutory orders unless that jurisdiction

has been expressly granted to us by law. See Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim.

App. 1991); Ex parte Shumake, 953 S.W.2d 842, 844 (Tex. App.—Austin 1997, no pet.). No such

grant exists for a defendant’s appeal of an interlocutory order arising under Chapter 64.2 Cf.

Gutierrez, 307 S.W.3d at 322-23 (observing that “there is a difference between issues that may be

litigated on appeal and issues that are immediately appealable” and concluding that decision to deny

appointed counsel under Chapter 64 is not appealable order). Accordingly, we dismiss this appeal

for want of jurisdiction.3 When the district court enters its final order regarding the results of the

DNA testing, Padilla may then file his notice of appeal.




       2
          We note that different rules govern an appeal by the State. See Tex. Code Crim. Proc.
Ann. art. 44.01 (West Supp. 2010); see also Tex. R. App. P. 25.2(a)(1). Just as the State is entitled
to appeal an order granting a motion to suppress evidence, see Tex. Code Crim. Proc. Ann.
art. 44.01(a)(5), the State is also entitled to appeal an order issued under Chapter 64. See id.
art. 44.01(a)(6).
       3
            Padilla has also filed a pro se “motion for suspension of rules” regarding filing
requirements and a pro se “motion to stay appeal and/or stay the filing of appellate record” pending
his transfer from one prison unit to another. In light of our disposition of this appeal, we dismiss as
moot Padilla’s pro se motions.

                                                  3
                                           __________________________________________

                                           Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Dismissed for Want of Jurisdiction

Filed: December 10, 2010

Do Not Publish




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