in Re Sterling Shepard

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-07-00528-CR

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In re Sterling Shepard

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 9034124, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

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

Appellant Sterling Shepard was convicted for possessing more than four grams of cocaine. This conviction was affirmed. See Shepard v. State, No. 03-04-00038-CR, 2006 Tex. App. LEXIS 2793 (Tex. App.--Austin, Apr. 6, 2006, pet. ref'd) (mem. op., not designated for publication). On June 22, 2007, Shepard filed a pro se motion for forensic DNA testing of the bag in which the cocaine was found. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2007). The district court denied the motion in a written order dated August 10, 2007, and this appeal followed.

Shepard represents himself on appeal. On December 10, 2007, Shepard was notified that his brief was overdue and advised that if he did not respond by January 11, 2008, the appeal would be submitted for decision without briefs. See Tex. R. App. P. 38.8(b). Shepard has not filed a brief or otherwise responded to the Court's notice.

The district court concluded that Shepard had not established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (West Supp. 2007). This conclusion is supported by the record. We find no error that should be considered in the interest of justice.

The order denying forensic DNA testing is affirmed.

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Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: March 12, 2008

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