DISMISS; and Opinion Filed January 29, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00039-CR

                          CHRISTOPHER ARIC RADKE, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 195th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-9602380-N

                              MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Boatright
                                  Opinion by Justice Boatright

       Christopher Aric Radke appeals the denial of his motion for appointment of counsel to

pursue post-conviction DNA testing. We dismiss this appeal for lack of jurisdiction.

                                        BACKGROUND

       Radke was convicted of murdering his wife. The trial court assessed punishment at life

imprisonment. This Court affirmed Radke’s conviction in 1999. Radke v. State, No. 05-97-01978-

CR, 1999 WL 455514, at *1–5 (Tex. App.—Dallas July 7, 1999, pet. ref’d) (not designated for

publication). Radke has since filed three post-conviction motions pursuant to Article 64.01 of the

Code of Criminal Procedure. First, Radke in 2011 filed a motion requesting the appointment of

counsel to pursue forensic DNA testing. The trial court denied Radke’s motion, and Radke

appealed. This Court dismissed the appeal for lack of jurisdiction on the basis that an order denying
appointment of counsel for post-conviction DNA testing is not an appealable order. No. 05-11-

01136-CR, 2011 WL 3862646, at *1 (Tex. App.—Dallas Sept. 1, 2011, no pet.) (mem. op., not

designated for publication) (citing Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App.

2010)). Second, Radke in October 2011 filed a motion for forensic DNA testing, which the trial

court denied. This Court affirmed the trial court’s order on appeal. No. 05-13-00963-CR, 2014

WL 1920473, at *1 (Tex. App.—Dallas May 13, 2014, no pet.) (mem. op., not designated for

publication).

       Rake’s third post-conviction motion is the one at issue in this appeal. Specifically, Radke

in October 2016 filed a “Motion for Appointment of Counsel for Proceeding Under Chapter 64

Motion for DNA Testing.” The motion was based on newly discovered evidence, i.e., the affidavit

of Harry J. Bonnell, M.D., a forensic pathologist. Dr. Bonnell opined that (i) the State’s forensic

expert testimony at trial regarding the victim’s shotgun entry-wound was contradicted by other

trial evidence, and (ii) DNA testing was necessary regarding the blood spatter on the pants worn

by Radke at the time of the offense. The trial court signed an order denying Radke’s motion. The

court’s order described Radke’s motion as requesting both the appointment of counsel and post-

conviction DNA testing. This appeal followed.

                                           ANALYSIS

       Article 64.01(c) of the Code of Criminal Procedure establishes when a convicted person

who intends to file a motion for post-conviction DNA testing is entitled to appointed counsel. TEX.

CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2017); Gutierrez, 307 S.W.3d at 321. A trial

court’s decision to deny appointed counsel is not an “appealable order” under Rule of Appellate

Procedure 25.2(a). Gutierrez, 307 S.W.3d at 323 (citing TEX. R. APP. P. 25.2(a)(2)). At this early

stage, a convicted person “has only contemplated the filing of a motion for DNA testing.” Id. Only




                                                –2–
after a motion for DNA testing has been filed and denied can a convicted person appeal any alleged

error made by the trial judge in refusing to appoint counsel. Id.

          The State contends that the trial court’s order should be construed solely as denying a

request for appointment of counsel—notwithstanding that the order purported to also deny a

request for post-conviction DNA testing—on the basis that the appointment of counsel was the

only relief that Radke requested in his motion. Two of our sister courts have so held under identical

circumstances and have dismissed the appeals before them for lack of jurisdiction, as required by

Gutierrez. Alfred v. State, No. 12-14-00319-CR, 2015 WL 3777213, at *1 (Tex. App.—Tyler June

17, 2015, no pet.) (mem. op,, not designated for publication); Lipscomb v. State, No. 06-15-00033-

CR, 2015 WL 2090923, at *1–2 (Tex. App.—Texarkana May 6, 2015, no pet.) (mem. op., not

designated for publication). The State seeks to dismiss Radke’s appeal in this case for the same

reason.

          Radke responds that he “effectively made his argument for testing and for counsel in the

same motion,” and he cites by analogy to case law holding that a complaint preserves error for

appeal if it is sufficient to make the trial court aware of its grounds. Duke v. State, 365 S.W.3d

722, 725 (Tex. App.—Texarkana 2012, pet. ref’d). While Radke’s motion urged that a “reasonable

probability of [his] innocence” warrants proceeding under Article 64.01, we disagree that the

motion can be construed as a request for DNA testing. Specifically, the motion argued that Radke

“has a statutory right to the appointment of counsel in a proceeding under Article 64.01(c),” and it

requested that the trial court “appoint counsel in an Article 64.01 proceeding Motion for Forensic

DNA Testing.” On its face, Radke’s motion is a preliminary request that precedes the initiation of

Chapter 64 proceedings, Gutierrez, 307 S.W.3d at 323, and it contains no independent request for

DNA testing that could itself be construed as initiating such proceedings. We therefore conclude




                                                –3–
that the trial court’s order denying the motion was not an appealable order under Rule 25.2(a)(2).

Id.



                                         CONCLUSION

       We have no jurisdiction to consider the merits of Radke’s appeal. Accordingly, we grant

the State’s motion to dismiss, and we dismiss this appeal for lack of jurisdiction.




                                                   /Jason Boatright/
                                                   JASON BOATRIGHT
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2

170039F.U05




                                                –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 CHRISTOPHER ARIC RADKE, Appellant                 On Appeal from the 195th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-17-00039-CR         V.                     Trial Court Cause No. F-9602380-N.
                                                   Opinion delivered by Justice Boatright.
 THE STATE OF TEXAS, Appellee                      Justices Francis and Evans participating.

        Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.


Judgment entered this 29th day of January, 2018.




                                             –5–
