CAUSE NO. 1978840

STATE OF TEXAS	§	IN THE COUNTY CRIMINAL	
	§
V.	§	COURT AT LAW NO. 8 OF
	§
________________________		§	HARRIS COUNTY, TEXAS
			
MOTION TO DISCOVER TESTING 
PROCEDURES AND DATA DERIVED THEREFROM

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, the above-referenced Defendant, by and through the undersigned counsel, and respectfully moves this Court to allow and order the discovery set forth below.  These requests are brought pursuant to:

•	Article 39.14 of the Texas Code of Criminal Procedure; 
•	The Due Process Clause of the 14th Amendment of the United States Constitution and Article I, §§ 13 and 19 of the Texas Constitution;
•	The right to effective assistance of counsel, the right to be informed of the nature of the accusation, the right of confrontation and cross-examination and the right to compulsory process as guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution;
•	The Defendant’s federal and Texas constitutional, and Texas statutory, right to present a full and fair defense; and
•	Texas Transportation Code §§ 724.016 and 724.018. 

Defendant seeks an order requiring the State to produce and permit examination, inspection and copying of the following items by the Defendant, undersigned counsel, co-counsel, and forensic experts employed by the Defendant, counsel or co-counsel:
1)	The testing procedures used by the examiner.
2)	The results of the testing procedures used by the examiner.
3)	Any data discovered as a result of testing procedures that had been conducted by the examiner on the above-stated items that were submitted to the Laboratory or
4)	Other materials needed to determine the validity of the government expert’s opinions rendered in his report.
5)	Evidence collection forms or logs (description of evidence, packaging, identification of specimens, identification of individuals collecting samples, sample collection procedures).
6)	Chain of custody records (field-to-lab transfers, and al transfers of evidence and associated analytical samples within the laboratory).
7)	Laboratory receiving records (records documenting the date, time and condition of receipt of the evidence in question; laboratory-assigned identifiers; storage location).
8)	Laboratory procedures for subsampling (collection of analytical aliquots) and contamination control.
9)	Copies of technical procedures in effect at the time the subject testing was performed (often termed Standard Operating Procedures, or SOP’s) for each procedure used during sample screening and confirmation, including; sample preparation, sample analysis, data reporting, and instrument operation.
10)	Copies of two-bracketing controlled substance proficiency results for each analyst and technician responsible for preparation or analysis of subject specimens, including: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence.
11)	Copies of traceability documentation for standards and reference materials used during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials certifications or traceability records from suppliers, assigned shelf lives and storage conditions.
12)	Sample preparation records, including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, extract volume.
13)	Copies of bench notes, log books, and any other records pertaining to case samples or instruments; records documenting observations, notations, or measurements regarding case testing.
14)	Instrument run log with identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift with subject samples (as appropriate: run sequence, origins, times of analysis and aborted run sequences).
15)	Record of instrument operating conditions and criteria for variables.
16)	Record of instrument maintenance status and activities for instruments used in subject testing, documenting routine and as-needed maintenance activities in the weeks surrounding subject testing.
17)	Raw data for the complete measurement sequence (opening and closing quality control included) that includes the subject samples.
18)	A description of the library used for spectral matches for the purpose of qualitative identification of controlled substances, including source(s) and number of reference spectra.
19)	Copy of records documenting computation of the laboratory’s theoretical production yield, including the basis for the computation, and the algorithm used, as appropriate.
20)	Procedure(s) for operation and calibration checks of analytical balances used to weigh controlled substances.
21)	Results of calibration checks and documentation of mass traceability for gravimetric determinations.
22)	Results of contamination control surveys for trace level analytes relevant to test methods at the time of analysis, including sampling design and analytical procedures.
23)	Records and results of internal reviews of subject data.
24)	Method validation records documenting the laboratory’s performance characteristics for qualitative identification and quantitative determinations of the controlled substance, to include data documenting specificity, accuracy, precision, linearity, and method detection limits.
25)	Copy of the laboratory’s Quality Manual in effect at the time the subject samples were tested as well as the laboratory’s most recent Quality Manual (however named; the document that describes the laboratory’s quality objects and policies).
26)	Copy of the laboratory’s ASCLD-LAB application for accreditation, and most recent Annual Accreditation Review report, as appropriate.
27)	Statement of qualifications of each analyst and/or technician responsible for processing case samples to include all names, locations and jurisdictions of cases in which these personnel testified concerning the same substances found in the present case.
28)	Copy of the laboratory’s ASCLD-LAB on-site inspection report, as appropriate, as well as any reports of on-site inspections by any other testing laboratory audit organization.
29)	Copies of internal audit reports generated during the period subject samples were tested.
30)	List of capital instrumentation in the laboratory at the time subject testing was performed, including manufacturer, model number, and major accessories.
31)	Production throughout data for the drug testing section: numbers of tests performed per month or per year, and the number of Full Time Equivalent personnel in the drug testing section of the laboratory.

In support of this MOTION, the Defendant shows as follows:
1.	The matters requested are in the exclusive possession, custody and control of the State of Texas by and through its agents, a law enforcement agency, or the prosecuting attorney's office, and the Defendant has no other way to obtain said information other than through this motion and an order from this court;
2.	The items requested are not privileged;
3.	The items requested are material and necessary for the preparation of the defense in this case;

4.	Absent all of the requested discovery, Defendant's rights under Article 39.14 of the Texas Code of Criminal Procedure, Article 1, Section 10 of the Texas Constitution, and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Texas Transportation Code §§ 724.016 and 724.018 will be violated to his irreparable injury and thus deprive the Defendant of a fair trial; and
5.	This MOTION is made in good faith and not for delay.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this motion be granted in its entirety.
Respectfully submitted,

						THE THIESSEN LAW FIRM

										 		         By:          _____________________________
							MARK THIESSEN
							SBN 24042025
							1221 Studewood Street
							Houston, Texas  77008
							Tel:  (713) 864-9000
							Fax: (713) 864-9006

						Attorney for Defendant,
						_____________________________

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has furnished to the Assistant District Attorney presently assigned to this case on this  _____ day of ___________, 20___.

						______________________________
						MARK THIESSEN

CAUSE NO. 1978840

STATE OF TEXAS	§	IN THE COUNTY CRIMINAL	
	§
V.	§	COURT AT LAW NO. 8 OF
	§
________________________		§	HARRIS COUNTY, TEXAS
			   
O R D E R
Pending before the court is Defendant’s MOTION TO DISCOVER TESTING PROCEDURES AND DATA DERIVED THEREFROM and after due consideration of same it is the Court’s opinion that said Motion should GRANTED or DENIED as follows:
1)	The testing procedures used by the examiner.
	GRANTED/DENIED

2)	The results of the testing procedures used by the examiner.
	GRANTED/DENIED

3)	Any data discovered as a result of testing procedures that had been conducted by the examiner on the above-stated items that were submitted to the Laboratory.
	GRANTED/DENIED

4)	Other materials needed to determine the validity of the government expert’s opinions rendered in his report.
	GRANTED/DENIED

5)	Evidence collection forms or logs (description of evidence, packaging, identification of specimens, identification of individuals collecting samples, sample collection procedures).
	GRANTED/DENIED

6)	Chain of custody records (field-to-lab transfers, and al transfers of evidence and associated analytical samples within the laboratory).
	GRANTED/DENIED
7)	Laboratory receiving records (records documenting the date, time and condition of receipt of the evidence in question; laboratory-assigned identifiers; storage location).
	GRANTED/DENIED

8)	Laboratory procedures for subsampling (collection of analytical aliquots) and contamination control.
	GRANTED/DENIED

9)	Copies of technical procedures in effect at the time the subject testing was performed (often termed Standard Operating Procedures, or SOP’s) for each procedure used during sample screening and confirmation, including; sample preparation, sample analysis, data reporting, and instrument operation.
	GRANTED/DENIED

10)	Copies of two-bracketing controlled substance proficiency results for each analyst and technician responsible for preparation or analysis of subject specimens, including: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence.
	GRANTED/DENIED

11)	Copies of traceability documentation for standards and reference materials used during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials certifications or traceability records from suppliers, assigned shelf lives and storage conditions.
	GRANTED/DENIED

12)	Sample preparation records, including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, extract volume.
	GRANTED/DENIED

13)	Copies of bench notes, log books, and any other records pertaining to case samples or instruments; records documenting observations, notations, or measurements regarding case testing.
	GRANTED/DENIED

14)	Instrument run log with identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift with subject samples (as appropriate: run sequence, origins, times of analysis and aborted run sequences).
	GRANTED/DENIED

15)	Record of instrument operating conditions and criteria for variables.
	GRANTED/DENIED

16)	Record of instrument maintenance status and activities for instruments used in subject testing, documenting routine and as-needed maintenance activities in the weeks surrounding subject testing.
	GRANTED/DENIED

17)	Raw data for the complete measurement sequence (opening and closing quality control included) that includes the subject samples.
	GRANTED/DENIED

18)	A description of the library used for spectral matches for the purpose of qualitative identification of controlled substances, including source(s) and number of reference spectra.
	GRANTED/DENIED

19)	Copy of records documenting computation of the laboratory’s theoretical production yield, including the basis for the computation, and the algorithm used, as appropriate.
	GRANTED/DENIED

20)	Procedure(s) for operation and calibration checks of analytical balances used to weigh controlled substances.
	GRANTED/DENIED

21)	Results of calibration checks and documentation of mass traceability for gravimetric determinations.
	GRANTED/DENIED

22)	Results of contamination control surveys for trace level analytes relevant to test methods at the time of analysis, including sampling design and analytical procedures.
	GRANTED/DENIED

23)	Records and results of internal reviews of subject data.
	GRANTED/DENIED

24)	Method validation records documenting the laboratory’s performance characteristics for qualitative identification and quantitative determinations of the controlled substance, to include data documenting specificity, accuracy, precision, linearity, and method detection limits.
	GRANTED/DENIED

25)	Copy of the laboratory’s Quality Manual in effect at the time the subject samples were tested as well as the laboratory’s most recent Quality Manual (however named; the document that describes the laboratory’s quality objects and policies).
	GRANTED/DENIED

26)	Copy of the laboratory’s ASCLD-LAB application for accreditation, and most recent Annual Accreditation Review report, as appropriate.
	GRANTED/DENIED

27)	Statement of qualifications of each analyst and/or technician responsible for processing case samples to include all names, locations and jurisdictions of cases in which these personnel testified concerning the same substances found in the present case.
	GRANTED/DENIED

28)	Copy of the laboratory’s ASCLD-LAB on-site inspection report, as appropriate, as well as any reports of on-site inspections by any other testing laboratory audit organization.
	GRANTED/DENIED

29)	Copies of internal audit reports generated during the period subject samples were tested.
	GRANTED/DENIED

30)	List of capital instrumentation in the laboratory at the time subject testing was performed, including manufacturer, model number, and major accessories.
	GRANTED/DENIED

31)	Production throughout data for the drug testing section: numbers of tests performed per month or per year, and the number of Full Time Equivalent personnel in the drug testing section of the laboratory.
	GRANTED/DENIED

It is therefore ORDERED that any evidence within the scope of the items granted above and as described in the attached motion be provided by the State to Defendant’s attorney at his office, 405 Main Street, Suite 200, Houston, Texas 77002, on or before 5 p.m. on the tenth day after the date of this order.
It is further ORDERED that this order is continuing and the State will immediately make available to the Defendant’s attorney any subsequent discoverable matter within the scope of the above granted items within 48 hours of the time it learns of or obtains such discoverable matter.
It is further ORDERED that any items herein not produced in violation of this order shall be and are excluded from evidence in this case if offered by the State.
It is further ORDERED that testimony concerning the items not produced in violation of this order or the information contained in those items, shall be and are excluded from evidence in this case if offered by the State.
It is further ORDERED that all orders herein for viewing, visual inspection, diagraming, and photographic recording are to occur during normal business hours at a mutually agreeable time, but in no event later than 10 business days after Defense counsel transmits this order to the law enforcement agency involved and specifically requests an agreeable time to view, visually inspect, diagram, and photographically record the items permitted in this order.
It is further ORDERED that any law enforcement agency, or person or entity having a contract with such law enforcement agency, shall be allowed as a copy cost that amount, and only that amount, that would be allowable under the Texas Public Information Act for copying the documents required to be produced by this order.
SIGNED AND ORDERED this date: _________________________.

_______________________________
							JUDGE PRESIDING