Opinion filed September 30, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-19-00280-CR
                                  __________

                          PAUL TORRES, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 106th District Court
                            Gaines County, Texas
                        Trial Court Cause No. 10-4100


                      MEMORANDUM OPINION
       Appellant, Paul Torres, attempts to appeal from the trial court’s order denying
his request for appointed counsel pursuant to Chapter 64 of the Texas Code of
Criminal Procedure.
      Chapter 64 establishes the procedures for a convicted person to obtain
postconviction DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05
(West 2018). Under the statute, an indigent convicted person intending to file a
motion for postconviction DNA testing has a limited right to appointed counsel.
Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011); Gutierrez v. State,
307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (entitlement to appointed counsel in
Chapter 64 postconviction DNA proceeding “is not absolute”); see also CRIM. PROC.
art. 64.01(c) (establishing prerequisites for appointment of counsel in Chapter 64
postconviction DNA proceeding). However, an order denying appointed counsel to
assist with filing a motion for postconviction DNA testing is not immediately
appealable. Gutierrez, 307 S.W.3d at 322–23 (concluding that trial court’s decision
to deny appointed counsel in Chapter 64 postconviction proceeding is a preliminary
matter that precedes the initiation of the proceedings and is not immediately
appealable); see also Whitfield v. State, 430 S.W.3d 405, 408 n.11 (Tex. Crim. App.
2014). Rather, the convicted person may raise any alleged error in the trial court’s
refusal to appoint counsel in an appeal of the trial court’s denial of the motion
requesting DNA testing. Whitfield, 430 S.W.3d at 408 n.11; Gutierrez, 307 S.W.3d
at 323.
        We notified Appellant of our concern that we lacked jurisdiction over his
appeal and requested that he respond showing grounds for continuing the appeal.
See TEX. R. APP. P. 43.2(f), 44.3; Guiterrez, 307 S.W.3d at 323. Appellant filed a
response, but failed to show grounds for continuing the appeal.
        Because an order denying appointed counsel under Chapter 64 is not an
appealable order, we dismiss this appeal for lack of jurisdiction.


September 30, 2019                                                          PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      2
