                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00033-CR



       DORNELL LAMAR LIPSCOMB, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 114th District Court
                 Wood County, Texas
             Trial Court No. 19,261-2006




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                MEMORANDUM OPINION
       Dornell Lamar Lipscomb is serving a ten-year sentence for aggravated sexual assault of a

child and has had a motion of his denied by the trial court. Because his motion was simply for the

appointment of counsel and because there is no right of appeal from the denial of such a motion,

we dismiss Lipscomb’s appeal for want of jurisdiction.

       On November 26, 2014, Lipscomb filed his motion in the trial court seeking the

appointment of counsel to assist him “in obtaining an order for DNA testing from the court

pursuant to Article 64.01(c), Code of Criminal Procedure.” On December 4, 2014, the trial court

reviewed Lipscomb’s file and denied his request for the appointment of counsel. The trial court

then entered a written order memorializing its ruling March 3, 2015. Lipscomb appeals from the

trial court’s denial of his motion for the appointment of counsel.

       The trial court’s March 3, 2015, order states, “IT IS THEREFORE ORDERED that

Defendant’s Request for Counsel and for DNA Testing be and hereby is DENIED.” While this

sentence could be interpreted as a substantive ruling on a request for forensic DNA testing, we

find nothing in the record filed with this Court to suggest that Lipscomb actually made a request

for forensic DNA testing. Consequently, we deem the March 3, 2015, order entered by the trial

court solely as an order denying Lipscomb’s request for the appointment of counsel. We further

deem this appeal solely as an appeal from the trial court’s March 3, 2015, order denying

Lipscomb’s request for theappointment of counsel.

       In the State of Texas, a party may only appeal when the Texas Legislature has authorized

an appeal. Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App. 1981). When the Legislature


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passes legislation authorizing appeals, in addition to granting its citizens a right of appeal, it also

grants the appellate courts of this State jurisdiction to hear such appeals. In the absence of such

authorizing legislation, appellate courts are without jurisdiction and have no authority to act.

       In the criminal context, the Texas Legislature has authorized appeals from written

judgments and/or appealable orders. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim.

App. 2010). The order denying Lipscomb’s motion for the appointment of counsel is not, under

these circumstances, the type of order from which the Texas Legislature has authorized an

interlocutory appeal. Id. In the absence of such an authorization, we are without jurisdiction to

hear the appeal.

       By letter dated March 11, 2015, we notified Lipscomb of this potential defect in our

jurisdiction and afforded him an opportunity to respond. Lipscomb’s response was two-fold. First,

Lipscomb continued to claim a right to appointment of counsel pursuant to Article 64.01 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp.

2014). Lipscomb failed, however, to cite any authority for the proposition that the denial of a

motion for the appointment of counsel in this scenario is an appealable order. Second, Lipscomb

contended that his November 26 motion was not only a motion for the appointment of counsel, but

included a request for forensic DNA testing. He contended that, because his motion for DNA

testing was denied, the order denying that motion is appealable. We disagree. Lipscomb’s motion

was captioned, “Request for Appointment of Counsel Pursuant to Article 64, Code of Criminal

Procedure.” The motion reads,

       Comes now Defendant Dornell Lamar Lipscomb, # 1456044 and requests
       appointment of counsel to assist defendant in obtaining an order for DNA testing
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       from the court pursuant to Article 64.01(c), Code of Criminal Procedure.
       Defendant wishes to submit a motion pursuant to Chapter 64 requesting DNA
       testing and defendant is indigent. An affidavit of indigency is attached and
       incorporated hereto as Exhibit “1.”

Although Lipscomb’s motion indicates that he wishes to file a motion for DNA testing, the instant

motion makes no such request. By its terms, the motion is limited to a request for the appointment

of counsel. The denial of a motion for the appointment of counsel in this circumstance is not an

appealable order. See Gutierrez, 307 S.W.3d at 323.

       In light of the foregoing, we dismiss this appeal for want of jurisdiction.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:       May 5, 2015
Date Decided:         May 6, 2015

Do Not Publish




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