                                    NO. 07-11-0356-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                      APRIL 10, 2012


                               REGINALD DORRELL DEARY,

                                                                    Appellant
                                              v.

                                  THE STATE OF TEXAS,

                                                                    Appellee
                            _____________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 96-423,368; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING


                                  Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

         Appellant, Reginald Dorrell Deary, appeals from the trial court’s order denying his

motion for post-conviction DNA testing. He contends that the decision was erroneous

because 1) identity was an issue, and 2) current DNA testing procedures are more

probative than those used at the time of the initial testing in the case. We affirm the

order.

         Statute obligates one seeking post-conviction forensic DNA testing to accompany

the motion with “an affidavit, sworn to by the convicted person, containing statements of
fact in support of the motion.” TEX. CODE CRIM. PROC. ANN. art. 64.01(a)(2) (a-1) (West

Supp. 2011). No such affidavit accompanied either of the motions filed at bar. This

omission is of import because the legislature contemplated that “a post-conviction

proceeding with submissions of affidavits from the applicant and a written response

from the State, rather than an evidentiary hearing,” would be the way to dispose of the

request. Haynes v. State, No. 14-02-01195-CR, 2003 Tex. App. LEXIS 8590 *3-4 (Tex.

App.–Houston [14th Dist.] October 7, 2003, pet. ref’d) (not designated for publication).

Without such an affidavit containing factual statements supporting the motion, we

cannot say that appellant carried his burden to prove by a preponderance of the

evidence that he would not have been convicted if exculpatory results had been

obtained through DNA testing and the request was not made to unreasonably delay

execution of the sentence or the administration of justice. See TEX. CODE CRIM. PROC.

ANN. art. 64.03(a)(2)(A & B) (West Supp. 2011). And, because statements contained in

briefs are not evidence, Guzman v. State, 923 S.W.2d 792, 796 (Tex. App.–Corpus

Christi 1996, no pet.), utterances contained in the briefs submitted by appellant and the

State do not fill the void.

       Accordingly, the order is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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