dissenting on denial of en banc review.
I dissent from the denial of en banc review. I believe we should follow the holding of the San Antonio Court of Appeals in Silva v. State, 933 S.W.2d 715, 719 (Tex.App.—San Antonio 1996, no pet.). The only issue in this appeal is whether the trial court abused its discretion by denying appellant’s motion for severance from his codefendant. The panel resolves the issue by finding waiver.
I acknowledge that the Code of Criminal Procedure art. 36.09 requires a defendant to support a motion to sever with evidence when it states “upon timely motion to sever, and evidence introduced thereon. ...” Tex.Code CRIM. P. art. 36.09 (emphasis added). The panel finds waiver because no evidence was introduced at the hearing on the motion to sever.
The hearing on the motion to sever was transcribed and filed with the appeal; it is 36 pages long. At that hearing, the two lawyers who made motions for a severance, argued that a joint trial with the third defendant, Celestine, would prejudice their clients’ trial. The prosecutor played an active role in the hearing, as did the judge, who questioned the lawyers about the claims of prejudice and the prosecutor on her plans for trial. At no time did the prosecutor object to the procedure. Although not actual evidence, I think those discussions amounted to the only “evidence” available in support of a motion to sever.
For practical reasons, evidence is seldom introduced to support a motion to sever because there is seldom any actual “evidence.”1 In most instances, as here, defense counsel simply argues to the court that the State will probably introduce certain testimony that will be prejudicial to the defendant. Seldom does a defense counsel have actual “evidence” of what the State will actually introduce at trial. Any statements about what will happen at trial is speculative because the trial has not yet occurred. Even if the defense counsel knew all the State’s evidence and the State’s trial strategy, a reason to sever based on that information would still be speculative and would not be actual “evidence.”
Lawyers, as officers of the court, are often allowed to present information to the court without the formality of taking the oath. See, e.g., Canada v. State, 660 S.W.2d 528, 530 (Tex.Crim.App.1983) (prosecutor’s un-sworn statements included in statement of facts put matter before the court); Mata v. State, 632 S.W.2d 355, 359 (Tex.Crim.App.1982) (defense counsel’s unsworn statement about mental condition of defendant met the “evidence” requirements of Tex.Code Crim. P. art. 46.02, § 4(a)); Hicks v. State, 525 S.W.2d 177, 179 (Tex.Crim.App.1975) (defense counsel’s unsworn statements included in statement of facts put matter before the court); see also Rumsey v. State, 675 S.W.2d 517, 522 (Tex.Crim.App.1984) (Teague, J., dissenting) (“I believe that an attorney’s un-sworn statements made in a court of law are synonymous with sworn statements_”). However, most courts that have faced the issue regarding “evidence” to support a motion to sever have held that unsworn statements by defense counsel are not evidence. Loveless v. State, 800 S.W.2d 940, 945-46 (Tex.App.—Texarkana 1990, pet.ref'd); Paez v. State, 693 S.W.2d 761, 767 (Tex.App.—Fort Worth 1985, no pet.).
I have found only one court that has held a lawyer’s unsworn statements will support a motion to sever. Silva, 933 S.W.2d at 719. In Silva, two attorneys made motions to sever; one argued at the hearing and the other actually testified. The court of appeals *313considered statements from “both attorneys” in support of the motions, even though only one testified. Id The case was reversed because the trial court should have granted the motions to sever. The Silva court clearly considered the unsworn arguments of one of the attorneys as evidence to support one of the two defendants’ motions. Thus, the opinion of the panel in this case is in conflict with the Silva opinion.
The Court of Criminal Appeals should grant petition for discretionary review to resolve this conflict between the San Antonio and the First Courts of Appeals. An attorney’s statements in support of a motion to sever should be considered as the “evidence” required by article 36.09.
Until the issue is resolved by the Court of Criminal Appeals, defense counsel should attempt to create sworn testimony in support of a motion to sever. Defense counsel should insist that they be sworn before beginning to discuss the reasons for the motion to sever, and should probably call the prosecutor as a witness.
. One example of when there is actual "evidence” to support a motion to sever is when the defendant moves for severance because the other defendant has a previous admissible conviction. Tex.Code Crim. P. art. 36.09. In such a case, the defendant making the motion can and must introduce evidence of the conviction at the hearing. Snow v. State, 721 S.W.2d 943, 945 (Tex.App.—Houston [1st Dist.] 1986, no pet.) (because no evidence was presented at hearing, ground waived); see also Sanne v. State, 609 S.W.2d 762, 775 (Tex.Crim.App.1980) (State stipulated to convictions).