Ex Parte Mark Anthony Moncada Estrada ( 2016 )

NUMBER 13-16-00312-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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EX PARTE MARK ANTHONY MONCADA ESTRADA
____________________________________________________________
On appeal from the 139th District Court
of Hidalgo County, Texas.
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MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Mark Anthony Moncada Estrada, attempts to appeal from the trial
court’s order denying petitioner’s third request for appointed counsel to assist in filing for
post-conviction DNA testing under the Texas Code of Criminal Procedure article 64.01.
See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West, Westlaw through 2015 R.S.). We
dismiss the appeal for want of jurisdiction.
The trial court signed the order denying the third motion for appointment of counsel
to assist in obtaining post-conviction DNA testing on May 17, 2016, and appellant filed
his pro se notice of appeal on June 2, 2016. On June 8, 2016, the Clerk of this Court
notified appellant that it appeared that the order from which the appeal was taken was not
a final, appealable order, and requested correction of this defect within ten days or the
appeal would be dismissed. Appellant has failed to respond to the Court’s directive.
An appeal in a criminal case is permitted only when specifically authorized by
statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011); see
Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002) (right of appeal “is a
statutorily created right”); see also Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim.
App. 1991) (“The courts of appeals do not have jurisdiction to review interlocutory orders
unless that jurisdiction has been expressly granted by law.”). “The standard for
determining jurisdiction is not whether the appeal is precluded by law, but whether the
appeal is authorized by law.” Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App.
2008).
The denial of a request for appointed counsel to assist in filing a motion for post-
conviction DNA testing is not immediately appealable. Gutierrez v. State, 307 S.W.3d
318, 322-23 (Tex. Crim. App. 2010). Any alleged error made by the trial court in refusing
to appoint counsel must be raised in an appeal from the final order denying DNA testing.
See id.
We are of the opinion that because there is not a final order denying a motion for
DNA testing under article 64.01, this Court lacks jurisdiction to consider the appeal.
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Accordingly, this appeal is DISMISSED for lack of jurisdiction.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of July, 2016.
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