      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00555-CR




                                           In re Diana Dial




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
       NO. 97-569-K277, HONORABLE WILLIAM S. LOTT, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Diana Dial appeals from an order by the district court denying her request for forensic

DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01-.05 (West Supp. 2004). Dial is serving a

sixty-year prison term for murder. Her conviction was affirmed by this Court and is now final. See

Dial v. State, No. 03-98-00040-CR, 1999 Tex. App. LEXIS 3366 (Tex. App.—Austin May 6, 1999,

pet. ref’d) (not designated for publication).

                By her pro se motion, Dial sought to have biological samples from the deceased

tested. It is Dial’s contention, discussed at length in her brief to this Court, that the deceased, Wilber

Jackson Pharris, was in fact Ilyich Ramirez Sanchez, the international assassin also known as “the

Jackal.” Dial contends that the deceased had been hired to kill her by a conspiratorial group

including many well-known political figures. She asserts that DNA testing will serve to identify the

deceased as this paid assassin.
               Dial’s motion was not accompanied by an affidavit containing statements of fact in

support of the motion. See id. § 64.01(a). Dial’s identity as the person who killed the deceased was

not and is not an issue. See id. § 64.03(a)(1)(B). Even if the evidence Dial seeks to have tested is

available, there are no facts in the record before us that would support a finding that the results

would be exculpatory or that Dial would not have been convicted had DNA testing been performed

prior to her trial. See id. § 64.03(a)(2)(A).

               The district court did not abuse its discretion by denying the motion for testing. The

order is affirmed.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: May 6, 2004

Do Not Publish




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