      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00528-CR




                                     In re Sterling Shepard




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



                            MEMORANDUM OPINION


               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.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: March 12, 2008

Do Not Publish




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