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Click here for the full text of this decision FACTS:Appellant was convicted of capital murder and sentenced to death on May 8, 1994. This court affirmed his conviction and sentence on direct appeal, and the mandate for that affirmance issued on Feb. 7, 1997. The court denied habeas relief Dec. 19, 2001. On Oct. 13, 2005, appellant filed an application for post-conviction DNA testing. The trial court denied relief, finding, among other things, that appellant failed to establish that the request for DNA testing was not made to unreasonably delay the execution of sentence or the administration of justice. Appellant filed an appeal, which was received by this court on Nov. 3, 2005. Appellant is scheduled to be executed on Nov. 9, 2005. He seeks a stay of that execution to allow his counsel adequate time to prepare briefing on appeal, or in the alternative, “an accelerated briefing schedule, requiring the State to submit any reply brief and to have the matter considered by the Court immediately.” The appellant submitted an interim brief and the state submitted a reply. HOLDING:The court affirms the trial court’s judgment. Nothing legally prevented appellant from filing a motion for DNA testing during the pendency of his federal habeas proceedings. Unlike a state application for writ of habeas corpus, a motion for DNA testing cannot, by itself, result in relief from a conviction or sentence. It is simply a vehicle for obtaining a certain type of evidence, which might then be used in a state or federal habeas proceeding. Moreover, appellant does not assert that he made any attempt to ascertain whether a dual filing would be permitted � such as seeking leave from federal court to file a Texas Code of Criminal Procedure Chapter 64 motion, and appellant does not allege that he attempted to procure an abatement of federal proceedings to file a Chapter 64 motion, despite the fact that he now contends that DNA testing would provide him with crucial exculpating evidence. Appellant also contends that the technology required for the testing he seeks did not become available until 2002 (Y-STR testing) and 2004 (laser microdissection). But appellant did not file a motion for DNA testing in 2002, 2003 or 2004. He waited until October 2005, when his execution was imminent. The court denies appellant’s motion for stay of execution is denied. The court grants his motion to have the appeal considered immediately, and, having found that the trial court’s finding regarding unreasonable delay is supported by the record, the court concludes that there was no reversible error in the proceedings below. OPINION:Per curiam. Price, J., did not participate.

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