NO. _________________

STATE OF TEXAS	

vs.

JOHN DOE

§	IN THE _____________ COURT
§
§	OF
§
§	____________ COUNTY, TEXAS

SUPPLEMENTAL MOTION FOR FORENSIC DNA TESTING

	TO THE HONORABLE JUDGE OF SAID COURT:

	Now comes the Petitioner in the above styled and numbered cause, by and through his attorney of record, and pursuant to Vernon’s Ann. Code of Criminal Procedure Articles 64.01 and 64.03, files this supplemental motion for forensic DNA testing.  Petitioner respectfully requests that this Court order autosomal (“STR”) and Y-Chromosome (“Y-STR”) DNA testing, to be performed at a private laboratory.  Petitioner would show in support of this motion the following:
Brief Statement of Facts

	In _____, a judge convicted Petitioner of sexual assault.  The trial court assessed punishment, enhanced, at sixty years. Petitioner’s first Motion for Forensic DNA Testing contains a complete statement of facts describing the assault. In brief, Petitioner’s conviction hinged primarily on the victim’s eyewitness identification, and serological testing of the biological material collected could not exclude him as the contributor of the sample.  

I.	abTo avoid potentially inconclusive results arising from the quality of biological material collected from the assault, items should be subjected to both traditional STR DNA testing and newer Y-STR testing.  

The assault of the victim occurred in _____, and biological material collected during the sexual assault examination (“rape kit”) is now nineteen years old.  The quality and quantity of the available biological material is currently unknown and cannot be determined until the evidence is submitted for forensic testing.  Degradation of the sample due to environmental factors, the presence of a “mixed” sample, or the possible absence of sperm can all lead to inconclusive results using traditional STR DNA testing.  
DNA testing can consume all available biological material and prevent any further testing.  In the event that there is only enough evidence for one attempt at analysis, the evidence should be analyzed by a laboratory capable of performing both STR and Y-STR DNA testing.    An ASCLD accredited lab is capable of performing both forms of testing and can determine which form of testing is appropriate and feasible after ascertaining the quality of the sample.
Currently, the Texas Department of Public Safety (“DPS”) can only perform STR testing.  Utilizing only STR testing through DPS poses a risk that all biological material will be consumed, thereby preventing further testing, without obtaining definitive results.  In addition, if STR testing fails to yield interpretable results and biological material still exists, Petitioner will likely return to this Court to seek private testing on the remaining materials.

A.	abBiological material should be subjected to traditional STR DNA testing.

The parties agree that Petitioner’s case is one in which traditional STR DNA testing can provide determinative proof of guilt or innocence.  If possible, traditional STR testing is preferred due to its higher power of discrimination and ability to uniquely “identify” the true perpetrator.  John M. Butler, Forensic DNA Typing 203 (2d ed. 2005).  It is also the foundation of the Federal Bureau of Investigation’s (“FBI”) CODIS DNA databank, which can produce a “cold hit” to identify the true perpetrator of the crime.

B.	abBiological material should be subjected to Y-STR testing. 

In the event that STR testing fails to yield results, Petitioner’s case is also suitable for a newer form of DNA testing called Y-Chromosome (“Y-STR”) testing.  Y-STR testing analyzes markers found exclusively on the Y chromosome, which only males have.  Greg Hampikian, The Future of Forensic DNA, 3 Canadian J. of Police & Security Services 5, 11 (2005).  Since the vast majority of sexual assaults involve male perpetrators, Y-STR testing is gaining importance in forensic testing because of its ability to examine only the male portion of a sample.  Butler, supra, at 201-02.  
Y-STR testing has obtained interpretable results where autosomal tests have failed due to extremely low levels of male DNA or extremely old samples where conventional differential extraction is not successful.  In one recent study, Y-STR typing was performed on fifty unsolved rape cases that failed to yield a male profile after differential extraction.  In 48% of the cases, sufficient male DNA existed to produce a Y-STR profile.  A.F. Dekairelle & B. Hoste, Application of a Y-STR-pentaplex PCR (DYS19, DYS389I and II, DYS390 and DYS393) to sexual assault cases, 118 Forensic Sci. Int’l 122 (2001).
Y-STR testing has also had a higher success rate in producing a male profile in sexual assault cases with mixed samples where only minor amounts of male DNA may exist or where no visually identifiable sperm were observed.  Sexual assault samples, such as vaginal swabs, often contain large amounts of female DNA and relatively small amounts of male DNA.  Cassie L. Johnson et al., Analysis of Non-Suspect Samples Lacking Visually Identifiable Sperm Using a Y-STR 10-Plex, 50 J. of Forensic Sci. 1116 (2005).  In the case of a mixed sample, the large amount of DNA from the female victim mixed with a relatively small amount of DNA from the perpetrator can “mask” the male suspect’s profile, resulting in inconclusive or interpretable results.  Id.   Since Y-STR testing only amplifies the male markers in a mixed sample, it ignores the female DNA present and can produce a profile of the male suspect even when the male component of a sample is extremely small. Hampikian, supra, at 11.  In one recent study comparing autosomal testing with Y-STR testing, partial detection of non-victim alleles occurred in four cases (4%) using autosomal STRs while Y-STR testing detected non-victim alleles in nine cases (16%).  A clean male type was obtained in only 34% of cases using autosomal testing, compared with a clean male type obtained in 52% of cases using Y-STRs.  Mechthild Prinz et al., Validation and casework application of a Y chromosome specific STR multiplex, 120 Forensic Sci. Int’l 177, 181 tbl.4 (2001).
In the event that the samples in the Petitioner’s case fail to yield an interpretable profile through conventional STR testing, Y-STR has a proven track record of success in producing interpretable results and can be used to conclusively exclude Petitioner as a contributor of the biological material in this case.
II.	Y-STR DNA testing is a scientific method sufficiently reliable and relevant to be admissible under Rule 702 of the Texas Rules of Evidence as required by Article 64.03 of the Code of Criminal Procedure.

No Texas case addresses the admissibility of Y-STR testing results.  See Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005) (denying relief because applicant failed to establish that his request for Y-STR testing was not made to unreasonably delay the execution of sentence or the administration of justice); Fox v. State, 2006 WL 488586 *4 (Tex. App. – Houston [1st Dist.] 2006, no pet.) (not designated for publication) (refusing Y-STR testing because appellant failed to establish by a preponderance of the evidence that a reasonable probability exists that he would not have been convicted if exculpatory results had been obtained through the requested testing).
However, other jurisdictions have considered the results of Y-STR testing for Daubert admissibility hearings and trial.  In every case, the courts have accepted the results as sufficiently reliable.  See Sudhir K. Sinha et al., Utility of the Y-STR Typing Systems Y-PLEX™ 6 and Y-PLEX™ 5 in Forensic Casework and 11 Y-STR Haplotype Database for Three Major Population Groups in the United States, 49 J. Forensic Sci. 691, 699 (2004).  See also id. at 693 tbl. 1 (listing cases where Y-STR testing has been accepted).

III.	Petitioner meets all of the requirements for DNA testing as required by Article 64 of the Code of Criminal Procedure and is prepared to bear the costs of private testing.

Having met all of the requirements of Article 64 as established in Petitioner’s first Motion for Forensic DNA Testing, Petitioner respectfully requests that his motion be granted and DNA testing ordered.  To ensure that any DNA testing ordered is performed without delay, counsel for Petitioner agrees to bear the costs of DNA testing at a private laboratory rather than wait for DPS to conduct testing given that agency’s backlog and inability to perform Y-STR testing.  See Governor’s Criminal Justice Advisory Council, January 2006 Report 6, 15 (2006) (noting the DPS backlog and need for assistance with technological capabilities).  

								Respectfully Submitted,

________________________