                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00347-CR


MICHAEL GOWAN                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 30,832-C

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                        MEMORANDUM OPINION1

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      Michael Gowan attempts to appeal the trial court’s order granting post-

conviction DNA testing under Chapter 64 of the Texas Code of Criminal

Procedure. We dismiss for want of jurisdiction.

      Chapter 64 of the Texas Code of Criminal Procedure provides the

framework within which a convicted person may request forensic DNA testing of


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       See Tex. R. App. P. 47.4.
evidence.   See generally Tex. Code Crim. Proc. Ann. arts. 64.01–.04 (West

Supp. 2014), 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). 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 that 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).

      Here, the trial court’s order granting additional DNA testing did not end the

Chapter 64 proceedings.      See, e.g., Ex parte Padilla, No. 03–10–00667–CR,

2010 WL 5019166, at *1–2 (Tex. App.—Austin Dec. 10, 2010, pet. ref’d)

(mem. op., not designated for publication).       Thus, the challenged order is

interlocutory, and interlocutory orders generally are not immediately appealable.


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See Gutierrez, 307 S.W.3d at 323 (“[I]nterlocutory 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., State v. Waller, 104

S.W.3d 307, 308 (Tex. App.—Dallas 2003, pet. ref’d). Nor is there any rule or

constitutional provision that authorizes the appeal.       See Abbott v. State, 271

S.W.3d 694, 696–97 (Tex. Crim. App. 2008).             Consequently, the trial court’s

order granting Gowan’s request for DNA testing is not an “appealable order.”

See Gutierrez, 307 S.W.3d at 323. Furthermore, the trial court’s certificate of

Gowan’s right to appeal states that “the trial court’s order granting the DNA

motion is not appealable by [] Gowan.” See Tex. R. App. P. 25.2(a)(2); see also

Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.—Corpus Christi 2003, no pet.)

(abating appeal from denial of post-conviction DNA testing under chapter 64 so

that trial court could supplement record with certification of defendant’s right to

appeal); but see Rodriguez v. State, 153 S.W.3d 245, 248 (Tex. App.—El Paso

2004, no pet.) (holding that TRAP 25.2(a)(2) does not apply to appeals from

denial of post-conviction DNA testing under chapter 64). Therefore, we hold that

we do not have jurisdiction over this appeal and we dismiss it. See id.; Abbott,

271 S.W.3d at 697.

      Furthermore, we deny Gowan’s “Motion to Supplement Response Showing

Grounds for Appeal,” and his “Motion to Examine for Defectiveness the Trial

Court’s Denial of Certification of Right to Appeal.”


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                                           PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 19, 2015




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