In Re: Avery Thomas Reed--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00119-CV
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IN RE:

AVERY THOMAS REED

 

Original Mandamus Proceeding

 

 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

 

MEMORANDUM OPINION

 

Avery Thomas Reed has petitioned this Court for a writ of mandamus. Reed would have this Court order the 188th Judicial District Court of Gregg County to rule on Reed's request for DNA testing. For the reasons stated herein, we deny Reed's requested relief.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

Article 64.01 of the Texas Code of Criminal Procedure provides that a convicted person may request forensic DNA testing of evidence containing biological material. The motion must be accompanied by 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) (Vernon Supp. 2006). Attached to Reed's petition for mandamus relief is his request to the trial court for DNA testing. This motion contains no statement of facts and no affidavit. The motion simply alleges that "there was evidence containing biological material secured" in the prosecution of Reed's case which was "in the possession of the state" at trial; that such evidence "was not subject to DNA testing"; "there is a substantial likelihood that DNA testing of the biological evidence would show that the defendant is not guilty" of the charges presented against him. (1) These allegations simply mirror the requirements of Article 64.01.

To be entitled to forensic DNA testing, the convicted person must establish by a preponderance of the evidence that a reasonable probability exists that he or she would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and that the requested DNA testing is not made for dilatory purposes. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A), (B) (Vernon Supp. 2006). This means the convicted person must show that a reasonable probability exists that exculpatory DNA tests will prove his or her innocence. See Smith v. State, 165 S.W.3d 361, 363-64 (Tex. Crim. App. 2005).

Reed has provided the trial court with no statement of facts on which the trial court could determine if Reed was entitled to DNA testing. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (relator supplied no statement of facts averring what evidence he wanted tested or any other facts supporting his motion for DNA testing); see also Tex. Code Crim. Proc. Ann. art. 64.01(a). Further, Reed did not support his motion with an affidavit, also required by Article 64.01(a), nor did he affirm that all factual allegations (to the extent he made any) in his motion were true. Cf. In re Fain, 83 S.W.3d 885, 889 (Tex. Crim. App. 2002) (relator did not supply affidavit, but did affirm all factual allegations made were true) (citing Tex. Civ. Prac. & Rem. Code Ann. 132.001-.003 (Vernon 2005) (unsworn declarations by inmates)).

Reed has not provided the trial court with the requisite information on which to review his request for DNA testing. He, therefore, has not demonstrated to this Court that he is entitled to the relief sought.

We deny his petition for mandamus.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: December 14, 2006

Date Decided: December 15, 2006

 

1. This Court has found no record of an appeal presented by Reed in this Court; he states in his petition that he is currently incarcerated at the A.H. Unit in Gatesville and serving a sentence of twenty years, though he does not state of what crime he was convicted.