                                        NO. 12-13-00058-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

KERRY MAX COOK,                                          §       APPEAL FROM THE 114TH
APPELLANT

V.                                                       §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Kerry Max Cook attempts to appeal the trial court‘s order granting postconviction
DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. He raises one issue on
appeal. We dismiss for want of jurisdiction.


                                                 BACKGROUND
       A Smith County grand jury indicted Appellant for the 1977 capital murder of Linda Jo
Edwards. Appellant‘s first trial resulted in a conviction and death sentence, but the conviction
and sentence were reversed. Appellant was tried a second time, but the case resulted in a hung
jury. In 1994, Appellant was tried a third time. The jury found Appellant guilty and assessed
punishment at death.          The court of criminal appeals reversed Appellant‘s conviction and
remanded for a new trial due to ―prosecutorial and police misconduct.‖1 Before Appellant‘s
fourth trial began, Appellant pleaded ―no contest‖ to the lesser included offense of murder. 2 The
terms of the agreement provided that Appellant would be credited for the time he had served in
prison—―[twenty] years flat time served.‖



       1
           See Cook v. State, 940 S.W.2d 623, 626-27 (Tex. Crim. App. 1996).
       2
           Appellant‘s ―no contest‖ plea was entered on February 16, 1999.
       On February 28, 2012, Appellant filed a motion for postconviction forensic DNA testing.
Appellant claims that he is factually and actually innocent of the 1977 rape and murder of Linda
Jo Edwards. On May 4, 2012, the presiding administrative judge for the First Administrative
Judicial Region signed an order that various items stored at the Southwestern Institute of
Forensic Sciences and Texas Department of Public Safety Crime Laboratory be subjected to
DNA testing. Thereafter, the State submitted a proposed order to the presiding judge of the
114th Judicial District Court in Smith County for DNA testing of items not included in the May
4, 2012 order.    The district judge signed the order on February 12, 2013, and Appellant
challenges that order in this appeal.


                                           JURISDICTION
       In his sole issue, Appellant contends that the trial court erred by signing the February 12,
2013 order without first holding an evidentiary hearing because some of the items to be tested
had a questionable chain of custody. The State asserts that the trial court‘s order granting DNA
testing is not appealable and urges this court to dismiss the appeal for want of jurisdiction.
Standard of Review
       Jurisdiction concerns the power of a court to hear and determine a case. State v. Riewe,
13 S.W.3d 408, 410 (Tex. Crim. App. 2000). The standard for determining jurisdiction is not
whether an appeal is precluded by law, but whether the appeal is authorized by law. See Abbott
v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008) (citations omitted). Where there is no
rule and no statutory or constitutional provision that authorizes an appeal, an appellate court
lacks jurisdiction to decide the merits of the appeal. See id. at 697.
Authority to Appeal
       Chapter 64 of the Texas Code of Criminal Procedure provides the framework within
which a convicted person may request forensic DNA testing of evidence. See generally TEX.
CODE CRIM. PROC. ANN. arts. 64.01-.04 (West Supp. 2013), 64.05 (West 2006). Article 64.05
provides that 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. By its plain
language, the statute directs that all appeals follow the usual procedures designated for appeals to
the courts of appeals. Swearingen v. State, 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006).




                                                  2
Thus, an appeal under Chapter 64 must also satisfy the requirements found in the Texas Rules of
Appellate Procedure. See id. at 781.
       Texas Rule of Appellate Procedure 25.2(a)(2) provides that a defendant has the right to
appeal as provided by article 44.02 of the code of criminal procedure. See TEX. R. APP. P.
25.2(a)(2). The rule further provides that when a defendant appeals, the trial court must enter a
certification of the defendant‘s right of appeal ―each time it enters a judgment of guilt or other
appealable order.‖ See id. An order that relates to issues which may be litigated on appeal is not
necessarily an ―appealable order‖ for purposes of Rule 25.2(a)(2). See Gutierrez v. State, 307
S.W.3d 318, 323 (Tex. Crim. App. 2010).
       The court of criminal appeals has held that a trial court‘s order denying a convicted
person‘s motion for DNA testing is an appealable order. See id. at 321 (citing Swearingen, 189
S.W.3d at 781). A trial court‘s finding that DNA test results were not favorable to the convicted
person is also an appealable order. See Booker v. State, 155 S.W.3d 259, 266 (Tex. App.—
Dallas 2004, no pet.). But a trial court‘s denial of a convicted person‘s request for appointed
counsel is not an appealable order, nor is an order that denies a convicted person‘s request for a
record to support his request for DNA testing. See Gutierrez, 307 S.W.3d at 323; Moore v.
State, 82 S.W.3d 747, 748 (Tex. App.—Amarillo 2002, no pet.). In Gutierrez and Moore, the
courts held that the Chapter 64 orders in question were not appealable because the proceedings
had not yet begun, or because the appellant‘s complaint was beyond the scope of Chapter 64
proceedings.   See Gutierrez, 307 S.W.3d at 323; Moore, 82 S.W.3d at 748.                And in an
unpublished opinion, the Austin court of appeals held that the defendant could not appeal a
convicting court‘s subsequent order granting DNA testing because the trial court was still
required to examine the results, conduct a hearing, and make findings under the provisions of
Chapter 64. See Ex parte Padilla, No. 03-10-00667-CR, 2010 WL 5019166, at *1 (Tex. App.—
Austin Dec. 10, 2010, pet. ref‘d) (mem. op., not designated for publication).       The court noted
that the defendant then could appeal the trial court‘s findings regarding the results of the testing.
Id.
Discussion
       On March 8, 2013, the trial court signed a ―Certification of Defendant‘s Right of
Appeal,‖ stating that Appellant has no right to appeal the February 12, 2013 order. In an




                                                 3
attached memorandum, the trial court states that its certification is based on the reasoning in Ex
parte Padilla.
         Appellant contends that the trial court‘s reliance on Ex parte Padilla is misplaced
because that case incorrectly interprets Swearingen as a mandate that Chapter 64 appeals be
restricted to judgments of guilt or other appealable orders. See generally Swearingen, 189
S.W.3d 779. Appellant describes the rules of appellate procedure as containing procedural and
substantive requirements. He contends that Rule 25.2(a)(2)‘s requirement of ―a judgment of
guilt or other appealable order‖ is a substantive provision that was not adopted by the
Swearingen decision.       Instead, Appellant interprets Swearingen as requiring that only the
appellate rules‘ procedural provisions, such as filing and time requirements, apply to Chapter 64
proceedings, while substantive provisions, such as the requirement of an appealable order, do not
apply.    We disagree with Appellant‘s analysis. Contrary to Appellant‘s contention, the court in
Swearingen identifies the order denying DNA testing as an ―appealable order.‖                    See
Swearingen, 189 S.W.3d at 781 (stating that ―[t]he ‗appealable order‘ order in [the] case was the
order denying DNA testing‖). Therefore, we conclude Rule 25.2(a)(2)‘s appealable order
requirement applies to Chapter 64 proceedings.
         At oral argument, Appellant maintained that he is entitled to appeal the trial court‘s order
because the State is entitled to appeal orders granting DNA testing. We first note that prior to
2003, the State was not permitted to appeal a favorable postconviction DNA finding under
Chapter 64. See, e.g., State v. Waller, 104 S.W.3d 307, 308 (Tex. App.–Dallas 2004, pet. ref‘d).
This is because the legislature had not authorized the state to file such an appeal. See id.; see
also Abbott, 271 S.W.3d at 697 (no appellate jurisdiction in criminal case where appeal not
authorized by any rule or statutory or constitutional provision). But in 2003, the legislature gave
the state authority to appeal orders issued under Chapter 64. Act of May 9, 2003, 78th Leg.,
R.S., ch. 13, § 7, 2003 Gen. Laws 16, 17 (codified at TEX. CODE CRIM. PROC. art. 44.01(a)(6)).
Here, the trial court‘s order granting additional DNA testing does not end the Chapter 64
proceedings. See, e.g., Ex parte Padilla, 2010 WL 5019166, at *1-2. Thus, the challenged order
is interlocutory, and interlocutory orders generally are not immediately appealable. See
Gutierrez, 307 S.W.3d at 323 (―interlocutory appeals are viewed as an extraordinary measure
and are rarely permitted‖). The legislature has not created a statutory provision authorizing
convicted persons to appeal Chapter 64 orders that do not terminate the proceedings. See, e.g.,



                                                  4
Waller, 104 S.W.3d at 308. Nor is there any rule or constitutional provision that authorizes the
appeal. See Abbott, 271 S.W.3d at 697. Consequently, the trial court‘s order granting DNA
testing is not an ―appealable order.‖ See Gutierrez, 307 S.W.3d at 323. Therefore, we hold that
we do not have jurisdiction over this appeal. See TEX. R. APP. P. 25.2(a)(2); Abbott, 271 S.W.3d
a                   t                                      6      9              7              .


                                                    DISPOSITION
         Having held that we do not have jurisdiction over this appeal, we dismiss the appeal for
want of jurisdiction. See TEX. R. APP. P. 43.2(f); Abbott, 271 S.W.3d at 697; Waller, 104
S.W.3d at 308. All pending motions are overruled as moot.

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered February 28, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)


                                                           5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         FEBRUARY 28, 2014


                                          NO. 12-13-00058-CR


                                       KERRY MAX COOK,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 114th District Court
                           of Smith County, Texas (Tr.Ct.No. 1-77-179)

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein; and the same being considered, it is the opinion of this court that this
court is without jurisdiction of the appeal, and that the appeal should be dismissed.
                       It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
