                                  NO. 07-03-0383-CR
                                  NO. 07-03-0384-CR
                                  NO. 07-03-0385-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  FEBRUARY 24, 2005

                          ______________________________


                       DAVID MATTHEW LAYTON, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

     NO. 34,435-C, 34,436-C, 34,437-C; HONORABLE PATRICK PIRTLE, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


      In these companion cases, appellant David Matthew Layton was convicted of

aggravated kidnapping and aggravated sexual assault of a child. We affirmed the trial court

conviction in each case. See Layton v. State, No. 07-96-0234-CR, 1997 Lexis 5257 (Tex.

App.–Amarillo Oct. 3, 1997, pet. ref’d); Layton v. State, No. O7-96-O235-CR, 1997 Lexis



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
5258 (Tex. App.–Amarillo Oct. 3, 1997, pet. ref’d); and Layton v State, No. 07-96-0236-CR,

1997 Lexis 5259 (Tex. App.–Amarillo Oct. 3, 1997, pet. ref’d). Appellant now asserts that

the trial court reversibly erred in denying his motions for post-conviction forensic DNA

testing. For the reasons set out below, we disagree the trial court erred, and we affirm the

trial court’s denial of those motions.


       Texas Code of Criminal Procedure article 64.03(a)(2)(A) provides that a trial court

may only order forensic DNA testing if the convicted person establishes by a

preponderance of the evidence that the person would not have been convicted if

exculpatory results had been obtained through DNA testing. Tex. Code Crim Proc. Ann.

art 64.03(a)(2)(A) (Vernon Supp. 2004-05). In advancing his contention that his motions

should have been granted, appellant, for the most part, again challenges in some detail the

legal and factual sufficiency of the evidence to support his conviction. In addition, he

specifically argues that the victims never made a firm identification of him as the culprit and

emphasizes that the State’s evidence shows he arrived at the scene of the crimes just after

the commission of the crimes.


       However, the evidence in these cases was reviewed in somewhat exhaustive detail

in our opinions affirming the convictions, and appellant has not presented any contentions

here that were not within the bounds of our prior discussion of the sufficiency of the trial

evidence.   Because of the nature of the evidence sustaining appellant’s conviction,

appellant has not borne his burden to show by a preponderance of the evidence that he

would not have been prosecuted or convicted if exculpatory results had been obtained

through DNA testing.

                                              2
      Accordingly, the trial court’s denial of appellant’s amended motions for DNA testing

of evidence must be, and are hereby, affirmed in each case.



                                                John T. Boyd
                                                Senior Justice

Do not publish.




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