11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jerry Mack Gentry

Appellant

Vs.                   No. 11-03-00279-CR -- Appeal from Nolan County

State of Texas

Appellee

Jerry Mack Gentry appeals from the denial of his postconviction motion for DNA testing.  He urges in a single issue that the trial court erred by denying his motion.  A court may order postconviction forensic DNA testing only if it finds that the evidence sought to be tested still exists.  TEX. CODE CRIM. PRO. ANN. art. 64.03(a)(1)(A)(i) (Vernon Pamph. Supp. 2004 - 2005).  In its response to the motion, the State noted that the material sought to be tested no longer existed, having been destroyed by the Sweetwater Police Department in the routine course of clearing out their evidence room.  At the hearing on the motion, Gentry presented no evidence contradicting the State=s assertion.  The court denied the motion, noting that the material sought to be tested had been destroyed and was unavailable.  We hold that the trial court did not err by denying Gentry=s motion.  See Shannon v. State, 116 S.W.3d 52, 55 (Tex.Cr.App. 2003).  Appellant=s issue is overruled.

The order denying postconviction DNA testing is affirmed.

PER CURIAM

January 13, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and Hill, J.^[1]