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
1
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.”
3
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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