COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00261-CR

DARRELL WAYNE PHILLIPS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Darrell Wayne Phillips attempts to appeal the trial court’s denial 

of his motion for appointment of counsel for post-conviction DNA testing. We 

dismiss for lack of jurisdiction.

 1

See Tex. R. App. P. 47.4.
2

Background Facts

On March 30, 1995, a jury convicted Appellant of involuntary 

manslaughter, and the jury assessed his punishment at sixty-seven years’ 

imprisonment. This court affirmed his conviction. See Phillips v. State, No. 02–

95–00136–CR, slip op. at 6 (Tex. App.—Fort Worth Sept. 26, 1996, no pet.) 

(mem. op., not designated for publication).

On August 7, 2007, Appellant filed a motion for appointment of counsel for 

DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2012). 

An attorney was appointed to represent him, and Appellant filed his request for 

DNA testing on October 8, 2010. The trial court denied Appellant’s request 

because his defense at trial had been that the shooting was an accident, an 

eyewitness testified that Appellant had shot the victim, and Appellant’s commonlaw wife testified that Appellant had admitted to her that he had shot the victim. 

This court affirmed the trial court’s denial of Appellant’s request for DNA testing. 

See Phillips v. State, No. 02-10-00560-CR, 2011 WL 4415494 (Tex. App.—Fort 

Worth Sept. 22, 2011, pet. ref’d) (mem. op., not designated for publication).

On or about March 20, 2013, Appellant filed a second request for 

appointment of counsel to assist in preparing a motion for post-conviction DNA 

testing.2

 The trial court denied the motion, stating that “there are no reasonable 

 2

The motion in the record before us does not bear a file-mark stamp 

indicating on what date it was filed. The certificate of service attached to the 

motion states that Appellant mailed the motion on March 20, 2013.
3

grounds on which a motion can be filed under article 64.01.” Appellant then filed 

this appeal.

Discussion

The State contends that an order denying a request for counsel for filing a 

chapter 64 motion for DNA testing is not an appealable order, and thus we 

should dismiss Appellant’s appeal for lack of jurisdiction. See Tex. R. App. P. 

25.2(a)(2).

An order denying DNA testing is an “appealable order” under rule 

25.2(a)(2). Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010). 

However, the decision to deny appointed counsel is not. Id. at 323 (“Such an 

appeal is premature; a motion for appointed counsel is a preliminary matter that 

precedes the initiation of Chapter 64 proceedings.”). The trial court’s order that 

Appellant now appeals denied his request for appointed counsel. It did not deny 

a request for DNA testing, nor is there such a request in the record before us. 

Because Appellant attempts to appeal the trial court’s denial of his motion for 

appointment of counsel rather than a final order denying a motion for DNA testing 

under article 64.01, we have no jurisdiction to consider his appeal. See id. at 

322–23. Accordingly, we dismiss this appeal for lack of jurisdiction. See id.; Tex.

R. App. P. 43.2(f).
4

Conclusion

Having determined that we have no jurisdiction over Appellant’s appeal, 

we dismiss this appeal for lack of jurisdiction. 

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: October 24, 2013