                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                    NO. 02-13-00261-CR


DARRELL WAYNE PHILLIPS                                              APPELLANT

                                            V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Darrell Wayne Phillips attempts to appeal the trial court’s denial

of his motion for appointment of counsel for post-conviction DNA testing. We

dismiss for lack of jurisdiction.




      1
       See Tex. R. App. P. 47.4.
                               Background Facts

      On   March 30,      1995,   a   jury    convicted   Appellant of   involuntary

manslaughter, and the jury assessed his punishment at sixty-seven years’

imprisonment. This court affirmed his conviction. See Phillips v. State, No. 02–

95–00136–CR, slip op. at 6 (Tex. App.—Fort Worth Sept. 26, 1996, no pet.)

(mem. op., not designated for publication).

      On August 7, 2007, Appellant filed a motion for appointment of counsel for

DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2012).

An attorney was appointed to represent him, and Appellant filed his request for

DNA testing on October 8, 2010.       The trial court denied Appellant’s request

because his defense at trial had been that the shooting was an accident, an

eyewitness testified that Appellant had shot the victim, and Appellant’s common-

law wife testified that Appellant had admitted to her that he had shot the victim.

This court affirmed the trial court’s denial of Appellant’s request for DNA testing.

See Phillips v. State, No. 02-10-00560-CR, 2011 WL 4415494 (Tex. App.—Fort

Worth Sept. 22, 2011, pet. ref’d) (mem. op., not designated for publication).

      On or about March 20, 2013, Appellant filed a second request for

appointment of counsel to assist in preparing a motion for post-conviction DNA

testing. 2 The trial court denied the motion, stating that “there are no reasonable


      2
        The motion in the record before us does not bear a file-mark stamp
indicating on what date it was filed. The certificate of service attached to the
motion states that Appellant mailed the motion on March 20, 2013.


                                         2
grounds on which a motion can be filed under article 64.01.” Appellant then filed

this appeal.

                                   Discussion

      The State contends that an order denying a request for counsel for filing a

chapter 64 motion for DNA testing is not an appealable order, and thus we

should dismiss Appellant’s appeal for lack of jurisdiction. See Tex. R. App. P.

25.2(a)(2).

      An order denying DNA testing is an “appealable order” under rule

25.2(a)(2). Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010).

However, the decision to deny appointed counsel is not. Id. at 323 (“Such an

appeal is premature; a motion for appointed counsel is a preliminary matter that

precedes the initiation of Chapter 64 proceedings.”). The trial court’s order that

Appellant now appeals denied his request for appointed counsel. It did not deny

a request for DNA testing, nor is there such a request in the record before us.

Because Appellant attempts to appeal the trial court’s denial of his motion for

appointment of counsel rather than a final order denying a motion for DNA testing

under article 64.01, we have no jurisdiction to consider his appeal. See id. at

322–23. Accordingly, we dismiss this appeal for lack of jurisdiction. See id.; Tex.

R. App. P. 43.2(f).




                                        3
                                    Conclusion

      Having determined that we have no jurisdiction over Appellant’s appeal,

we dismiss this appeal for lack of jurisdiction.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

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

DELIVERED: October 24, 2013




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