NO. _________________

STATE OF TEXAS	

vs.

JOHN DOE

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

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 motion for forensic DNA testing, and would respectfully show in support of this motion the following:

I.

The identity of the perpetrator was and is in issue in this case. In _____, a jury convicted Petitioner of sexual assault. The trial court assessed punishment, enhanced, at sixty years. Petitioner was convicted primarily on the victim’s eyewitness identification. Serological testing of the biological material collected could not exclude him as the contributor of the sample. Petitioner believes that DNA testing of biological material collected from the victim will exclude him as the perpetrator.  

STATEMENT OF FACTS

   Walking home from work, the victim was approached by the perpetrator when he pulled up beside her in a dark blue car and asked her if she would like a ride. The victim accepted; the perpetrator then drove to a road near the lake where he sexually assaulted the victim. After the assault, the perpetrator dropped the victim off on the side of the road. The victim memorized the first three digits of the perpetrator’s license plate number and then flagged a ride to the police station.   
When the victim arrived at the police department, an officer collected the victim’s clothing, placed it in a brown paper sack, and took it to the property control room. The officer then escorted the victim to the hospital for a sexual assault examination. After the examination, the officer took the contents of the exam in a sealed kit. That officer then accompanied the victim back to the scene to search for her underwear, but they could not locate it. 
On ______, the victim contacted a sergeant when she spotted a car similar to the one driven by her assailant. The sergeant photographed the car and located the registered owner. The sergeant then prepared a photo lineup that included the registered owner’s photograph. The victim could not identify her assailant in this lineup. 
On _____, the officer who assisted the victim earlier was on patrol and spotted a car with a partial license plate match, according to the victim, parked in a driveway. The officer notified the sergeant, and together they knocked on the front door of the house. The Petitioner answered, but declined to let the officers enter without a warrant. On the same day, the sergeant contacted the victim and asked her to look at another photo lineup. The victim identified Petitioner as her assailant during this subsequent lineup. 
II.

Biological evidence was secured in relation to the sexual assault of the victim, to-wit: a sexual assault kit collected at the hospital containing semen of the perpetrator on both a slide and a vaginal swab. Additional biological material was found on victim’s clothing, collected by the police department. This biological material was secured in relation to the offense that is the basis of the challenged conviction.  This evidence was in possession of the state during the trial of the offense, but was not previously subject to DNA testing because DNA testing was not available at the time.  
III.

	Evidence containing biological material still exists and is in the custody of the state as now required by Vernon’s Ann. Code of Criminal Procedure Article 38.43.   The evidence is in a condition that makes DNA testing possible and has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect.  
IV.

	Petitioner is prepared to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.  (See attached affidavit of Adam Petitioner).  The current standard governing Article 64.03(a)(2)(A) only requires the petitioner to show there is a 51% chance that he would not have been convicted had exculpatory results been available at trial.   See Smith v. State, 165 S.W.3d 361, 363-64 (Tex. Crim. App. 2005).  
V.

	This request is not made to unreasonably delay the execution of sentence or administration of justice.  

	Having met all of the requirements of Article 64, Petitioner respectfully requests that his motion be granted and DNA testing ordered.
								Respectfully Submitted,

________________________

PROPOSED ORDER

Having reviewed Defendant-Petitioner’s Motion for Forensic DNA Testing, it is ORDERED that:
1.  No party shall view or inspect any part of the evidence comprising State's Exhibits which include: (1) the bag containing clothing from the victim; (2) a collection containing items of evidence submitted to DPS for analysis; (3) the sexual assault kit samples from victim; (4) blood specimens, semen, and saliva samples from Petitioner; (5) swatch of clothing analyzed by DPS; and (6) the semen-free vaginal swab of victim currently in the possession of the State, until such time as the Court appoints a DNA expert to preserve the integrity of the evidence and protect it against the possible loss or degradation of the biological material on it.
2.  The attorney representing the state deliver the evidence to the court, along with a description of the condition of the evidence within twenty days of the signing of this order.  
3.  Testing be conducted by forensic laboratory to determine if Petitioner is the contributor of the biological specimen obtained from the victim.  The Petitioner will pay the costs.   
3.  DNA testing shall be conducted under reasonable conditions designed to protect the integrity of the evidence and the testing process. DNA testing will employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702, Texas Rules of Evidence.
4.  On completion of DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results shall be immediately filed with the court and copies of the results and data be served on Petitioner’s counsel and the attorney representing the state.
5.  The Clerk of the Court shall serve a copy of this motion and order upon the State.
Signed on this _______day of ______2007.

____________________________