COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-04-281-CR

FRED DOUGLAS SUTHERLAND                                               APPELLANT

V.

THE STATE OF TEXAS                                                                  STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION¹

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        Fred Douglas Sutherland appeals the trial court’s denial of his motion for DNA testing.  In a single point, appellant contends that the trial court may have improperly considered his guilty plea and admission of sexual misconduct in denying the motion.  See Tex. Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2004-05) (providing that convicting court is prohibited from finding that identity was not an issue in case solely on basis of defendant’s guilty plea).  There is no evidence in the record to support this contention.  Rather, the trial court denied appellant’s motion because no evidence existed in a condition making DNA testing possible.  See id. art. 64.03(a)(1)(A)(i).  We overrule appellant’s point and affirm the trial court’s judgment.

                                                                  PER CURIAM

PANEL F:   CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: January 27, 2005

NOTES

1.  See Tex. R. App. P. 47.4.