                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00234-CR


CURTIS SHEPPARD, JR.                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Curtis Lee Sheppard, Jr. appeals from the order denying his

chapter 64 motions for forensic DNA testing.2 We will affirm.




      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Code Crim. Proc. Ann. art. 64.01 (West 2012).
                                  II. BACKGROUND

      A jury found Sheppard guilty of possession of more than one but less than

four grams of cocaine, and the trial court sentenced him to fifty years‟

confinement.     The Dallas court of appeals affirmed his conviction on

December 14, 2011.        Sheppard v. State, No. 05-11-00852-CR, 2011 WL

6228341, at *6 (Tex. App.—Dallas Dec. 14, 2011, pet. ref‟d) (not designated for

publication). On April 27 and May 1, 2012, Sheppard filed motions pursuant to

chapter 64 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc.

Ann. art. 64.01. Without holding a hearing, the trial court denied his motions, and

this appeal followed. See Tex. Crim. Proc. Code Ann. art. 64.05 (West 2006)

(“An appeal under this chapter is to a court of appeals in the same manner as an

appeal of any other criminal matter, except that if the convicted person was

convicted in a capital case and was sentenced to death, the appeal is a direct

appeal to the court of criminal appeals.”).

                              III. CHAPTER 64 MOTION

      In his sole issue, Sheppard argues that the trial court erred by denying his

chapter 64 motions and asserts that he should have been allowed to use these

motions as a vehicle to retest the weight of the controlled substance admitted

into evidence at his trial because, according to Sheppard, it is “the only way to

test „powder cocaine.‟”

      When a defendant makes a motion for post-conviction forensic DNA

testing of evidence, it only concerns the testing of biological material as defined


                                          2
in chapter 64 of the Texas Code of Criminal Procedure. Id. art. 64.01(a)(1). A

convicting court may order forensic DNA testing only of evidence containing

biological material if: (1) the court finds that the evidence still exists, is in a

condition making DNA testing possible, and has been subjected to a chain of

custody sufficient to establish that it has not been substituted, tampered with,

replaced, or altered in any material respect; (2) identity was or is an issue in the

case; (3) the convicted person establishes by a preponderance of the evidence

that a reasonable probability exists he would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA testing; and

(4) the request for the proposed DNA testing is not made to unreasonably delay

the execution of sentence or the administration of justice. Id. art. 64.03(a) (West

Supp. 2012); Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007,

pet ref‟d), cert. denied, 552 U.S. 1117 (2008).

      In this case, Sheppard is attempting to use his chapter 64 motions to test

the amount of a controlled substance and not DNA. This he cannot do. See

Jones v. State, No. 13-05-00718-CR, 2006 WL 1919823, at *3 (Tex. App.—

Corpus Christi July 13, 2006, pet. ref‟d) (not designated for publication) (testing

to determine weights and types of cocaine is beyond the scope of chapter 64,

which does not authorize DNA testing of non-biological material). Because

Sheppard‟s motions did not meet the requirements of chapter 64, the trial court

did not err by denying his motions. See Reger, 222 S.W.3d at 513. We therefore

overrule his sole issue.


                                         3
                                 IV. CONCLUSION

      Having overruled his sole issue on appeal, we affirm the trial court‟s order.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 11, 2013




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