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 postconviction 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 

 

1See Tex. R. App. P. 47.4.
2

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. 
3

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.”
4

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