
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00250-CR


In re Kennith Wayne Thomas





FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT

NO. 3852, HONORABLE CURT F. STEIB, JUDGE PRESIDING






Kennith Wayne Thomas appeals from an order dismissing his pro se motion for
forensic DNA testing of evidence relating to his conviction for aggravated sexual assault.  See Tex.
Code Crim. Proc. Ann. arts. 64.01-.05 (West Supp. 2002). (1)  We will affirm the district court's order.

In his motion, Thomas requested DNA testing of hair and blood samples taken from
him following his arrest.  The motion was not supported by the required affidavit.  Id. art. 64.01(a). 
Nevertheless, the court instructed the State to respond to the motion.  Id. art. 64.02.  In its response,
the State informed the court that no physical evidence was obtained during the investigation of this
case.  The court thereafter dismissed Thomas's motion finding that the motion did not comply with
the statutory requirements, that there is no evidence subject to DNA testing and, alternatively, that
the testing of hair and blood samples taken from Thomas would merely prove that the samples were
taken from him and would not be exculpatory.  Id. art. 64.03.
In his brief to this Court, Thomas asserts his innocence and complains of several
violations of his rights at trial.  The brief does not discuss the merits of his motion for DNA testing
or the court's order thereon other than to urge that the district court improperly placed the burden
of proof on him.  This complaint is without merit.  Under the statute, the movant must establish by
a preponderance of the evidence that a reasonable probability exists that he would not have been
prosecuted or convicted if exculpatory results had been obtained through DNA testing.  Id. art.
64.03(a)(2)(A).
Having reviewed the record, we find no error in the court's dismissal of the motion. 
Accordingly, the order is affirmed.


  
				Mack Kidd, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   August 30, 2002
Do Not Publish
1.        Appellant's conviction was affirmed by this Court.  Thomas v. State, No. 03-91-00058-CR
(Tex. App.--Austin Aug. 28, 1991, pet. ref'd, untimely filed) (not designated for publication).
