                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                   NO. 02-14-00410-CR


ALLEN KEITH ANDERSON SR.                                            APPELLANT

                                           V.

THE STATE OF TEXAS                                                       STATE


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      FROM CRIMINAL DISTRICT COURT ONE OF TARRANT COUNTY
                    TRIAL COURT NO. 1190510D
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                          MEMORANDUM OPINION1

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      Appellant Allen Keith Anderson Sr. attempts to appeal an order denying his

request for the appointment of counsel to assist him in filing a motion for post-

conviction DNA testing. We hold such an order is interlocutory and dismiss his

appeal for want of jurisdiction.




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

      On October 28, 2010, Appellant was sentenced to imprisonment for six

years in the Institutional Division of the Texas Department of Criminal Justice for

the offense of sexual assault.

      On June 5, 2014, Appellant filed a pro se “Request for Appointment of

Counsel Pursuant to Article 64, Code of Criminal Procedure.” Appellant wanted

the assistance of counsel for the purpose of submitting a motion for DNA testing

under article 64. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp.

2014) (requiring appointment of counsel if (1) the person informs the court that

the person wants to file a motion for DNA testing, (2) the court finds reasonable

grounds for a motion to be filed, and (3) the court determines that the person is

indigent). Appellant attached a “Declaration of Inability to Pay Cost.”

      On August 7, 2014, the trial court signed an order denying Appellant’s

“Request for Appointment of Counsel” because identity was not an issue and

because there were no reasonable grounds for a motion for DNA testing.

      On August 26, 2014, Appellant filed a notice of appeal and identified the

August 7, 2014 order denying his “Motion for Appointment of Counsel” as the

order he wanted to appeal.

      On January 2, 2015, Appellant filed a “Motion to Abate Appeal.” Appellant

wanted the appeal abated so he could obtain a copy of the record and prepare

his brief and so that he could file a motion for new trial.




                                           2
          On January 7, 2015, this court wrote Appellant, informed Appellant he was

appealing an interlocutory order, and instructed him to file a final order by

January 20, 2015. The court’s letter relied on Gutierrez v. State, 307 S.W.3d

318, 323 (Tex. Crim. App. 2010). The court informed Appellant that if no order

was signed and furnished by January 20, 2015, his appeal would be dismissed

for want of jurisdiction.

          On January 22, 2015, Appellant filed a letter in which he indicated he had

moved to a transitional center and provided the court with his new address.

Appellant gave no indication of having received this court’s January 7, 2015

letter.

          On January 29, 2015, the court sent Appellant the same letter that it had

sent him on January 7, 2015. This letter, however, was sent to Appellant’s new

address. The court gave Appellant until February 9, 2015, to file a final order.

          On February 4, 2015, Appellant filed a letter in which he acknowledged he

had until February 9, 2015, to respond. On February 9, 2015, Appellant filed

another letter in which he asserted the court had jurisdiction over the order

denying counsel. Although unclear, Appellant appears to understand the issue

as being one of timeliness and not one of finality.




                                           3
                                       Discussion

      An order denying the appointment of counsel is not a final, appealable

order. Gutierrez, 307 S.W.3d at 323. An appeal of the order denying counsel is

premature because, at this stage, the convicted person has only contemplated

filing a motion for DNA testing. Id.

      The better course is for a convicted person to file a [pro se] motion
      for DNA testing and, if and when the motion is denied, appeal any
      alleged error made by the trial judge in refusing to appoint counsel.
      If a reviewing court determines that the trial judge erred in failing to
      appoint counsel, then the case will be remanded to the trial court so
      the convicted person can file a subsequent motion for DNA testing
      with the assistance of counsel.

Id.

      Our review of the clerk’s record shows that the only motion Appellant filed

was his motion for the appointment of counsel. Appellant has not filed a motion

for DNA testing. It necessarily follows that the trial court has not denied any such

motion. Gutierrez requires this court to dismiss Appellant’s appeal as premature.

Id.; Chavez v. State, Nos. 02-10-00250-CR, 02-10-00251-CR, 2010 WL

3001176, at *1 (Tex. App.—Fort Worth July 29, 2010, no pet.) (mem. op., not

designated for publication).




                                           4
                                    Conclusion

      Because an order denying appointed counsel under article 64.01(c) of the

Texas Code of Criminal Procedure is not an immediately appealable order, we

dismiss this appeal for want of jurisdiction.     Appellant’s motion to abate the

appeal is dismissed for want of jurisdiction as well. Tex. R. App. P. 43.2(f).



                                                    /s/ Anne Gardner
                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

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

DELIVERED: March 26, 2015




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