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 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.
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.
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).
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NO. 07-10-00369-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 26, 2011
LONNIE MOORE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2010-460,904; HONORABLE LARRY B. "RUSTY" LADD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON ABATEMENT AND REMAND
Appellant Lonnie Moore appeals from the trial courts judgment finding her guilty of assault and sentencing her to 365 days of imprisonment. Appellant filed notice of appeal on September 22, 2010. The clerks record was received and filed on November 17. The reporters record was due on December 15. By letter of January 3, 2011, this Court advised the reporter that the appellate record was late and directed the reporter to advise the Court of the status of the appellate record on or before January 13. As of this date, the court reporter has failed to comply with the directive of the Court.
Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 35.3(c). On remand, the trial court shall utilize whatever means necessary to determine the following:
1. Why the reporter has not responded to the Courts directive;
2. Why the reporters record has not been filed;
3. When this Court can expect the record to be filed; and
4. Whether an alternative or substitute reporter should or can be appointed to complete the record in a timely manner.
The trial court shall cause any hearings to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk's record to be developed containing its findings of fact and conclusions of law and any orders it may issue relating to this matter, and (3) cause a reporter's record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk's record and any reporter's record transcribing the hearing with the clerk of this court on or before February 25, 2011. Should further time be needed by the trial court to perform these tasks, same must be requested before February 25, 2011.
It is so ordered.
Per Curiam
Do not publish.