      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00163-CR




                                      In re Sylvester Majors




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
          NO. 925573, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Sylvester Majors, acting pro se, appeals the district court’s order denying his motion

for post-conviction DNA testing. We affirm the order.

               Majors is serving the thirty-eight year prison sentence imposed following his

conviction for aggravated assault. As described in this Court’s opinion affirming the conviction,

Majors entered a closed restaurant through the back door and robbed the manager. During the course

of the robbery, Majors stabbed the manager in the abdomen and another restaurant employee in the

hip. Both victims testified at appellant’s trial. The knife was not recovered. See Majors v. State,

No. 03-93-00239-CR (Tex. App.—Austin Apr. 20, 1994, pet. ref’d) (not designated for publication).

               In his motion, Majors sought DNA testing of vomit and blood found on his shirt

following his arrest shortly after the robbery, fingerprints found at the restaurant, and the knife. In

neither his motion nor his brief to this Court does Majors contend that identity was an issue in this

case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (West 2006). To the contrary, Majors
admits being in the restaurant. He argues, however, that he was intoxicated and ill, and that he left

without entering the kitchen where the robbery took place. He contends that DNA testing of the

vomit and blood on his shirt would confirm his exculpatory story that he was ill and had cut himself

while shaving, DNA testing of the fingerprints would show that he left the restaurant through the

front door, and DNA testing of the knife would prove that he never threatened anyone with it.

               As previously mentioned, the knife used in the robbery was never recovered, so DNA

testing of the weapon is impossible. See id. art. 64.03(a)(1)(A)(i). Fingerprint evidence that Majors

left the restaurant through the front door, if it exists, would not prove that he did not later reenter

through the back door. Similarly, proof that the vomit and blood on Majors’s shirt belonged to him

would not exculpate him as to the robbery. The district court could reasonably conclude that Majors

failed to establish that he would not have been convicted if exculpatory results had been obtained

through DNA testing. See id. art. 64.03(a)(2)(A).

               The order denying DNA testing is affirmed.




                                               ___________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 10, 2007

Do Not Publish



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