Harlon Ray Buckner, II v. The State of Texas--Appeal from 178th District Court of Harris County

Dismissed and Memorandum Opinion filed December 15, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-05-01112-CR &

14-05-01118-CR

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HARLON RAY BUCKNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause Nos. 755,721 & 755,722

M E M O R A N D U M O P I N I O N

These are attempted appeals of the trial court=s denial of appellant=s motion for appointment of counsel in his DNA testing cases. Because we hold the orders appellant seeks to appeal are interlocutory and not appealable, we dismiss the appeals for lack of jurisdiction.

On May 22, 2002, appellant=s appointed counsel filed a motion for DNA testing in these two causes. The record indicates that on June 5, 2002, the trial court granted these requests in both causes as to biological matter preserved and not already identified as being donated from appellant or another named individual. In September 2005, appellant filed pro se motions in both causes, again requesting DNA testing, and requested appointment of counsel. On September 1, 2005, the trial court denied the requests for appointment of counsel. On October 3, 2005, appellant filed notices of appeal from the denial of his motions for appointment of counsel.[1]

Although Chapter 64 of the Code of Criminal Procedure allows appeal of the trial court=s determination whether to order DNA testing, it provides no separate appeal for the denial of appointment of counsel. See Fry v. State, 112 S.W.3d 611, 613 (Tex. App.BFort Worth 2003, pet. ref=d). Thus, the trial court=s orders denying appellant=s motions for appointment of counsel are not appealable orders. See id. at 613-14.

Accordingly, the appeals are ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed December 15, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] These notices of appeal were mailed and the postmark shows they were it was mailed in September 2005, but the date in September isn illegible. Because the notices of appeal were mailed in September 2005, we consider them to be timely.