NO. 

THE STATE OF TEXAS	§	IN THE DISTRICT COURT OF
§
§	COUNTY, TEXAS
§
Mr. Defendant	§	JUDICIAL DISTRICT

MOTION FOR FORENSIC DNA TESTING
OF SAMPLES OF SPERMATOZOA

	Mr. Defendant hereby petitions this Honorable Court under the authority of chapter 64 of the Code of Criminal Procedure1 to appoint the undersigned attorney for purposes of this Motion pursuant to Article 64.01(c) of the Code of Criminal Procedure, and order the _______________ County District Attorney’s office to make available a certain sample of forensic evidence for testing by   [DNA LAB]   In support thereof, Applicant respectfully shows the Court the following matters as set forth in this motion:
Statement of the Case 
	Mr. Defendant was convicted of capital murder and sentenced to death on ________.  His death penalty conviction was affirmed by the Texas Court of Criminal Appeals on_________. See Mr. Defendant v. State, 000 S.W.2d 000 (Tex.Crim.App. ______).  After an unsuccessful petition for certiorari to the United States Supreme Court, he filed his state writ application.  On____________, after a hearing, this court issued finding of fact and conclusions of law and recommended that relief be denied.  On _______________, the Texas Court of Criminal Appeals denied his writ application.  Ex parte Mr. Defendant, 000 WL 0000000 (Tex.Crim.App. No. 000000000, delivered ________)(unpublished).  He later filed a federal writ petition, which is currently pending in the Federal District Court of ___________under Civil Action No. _____________.
Samples Containing Biological Material Exist
And Can Be Subjected to DNA Testing

	In the possession of the ____________ County District Attorney’s Office are certain samples of forensic evidence used in the state prosecution of Applicant, ___________, namely, samples of spermatozoa found in the victim’s body (Ms. Victim) and blood samples from Applicant.  The DNA from these items have never been compared to determine if the spermatozoa came from Applicant.
	These items were collected pursuant to the __________ County District Attorney’s Office 19___ capital murder prosecution against Applicant. 
	On the vaginal swab, _________ could not do an RFLP analysis, but did do PCR testing.  However, at that time no DNA could be amplified from the spermatozoa. [DNA Lab] now has the technology to extract the DNA from the vaginal swab sample and compare it with Mr. Defendant’s DNA.  Applicant therefore moves this Court to order this DNA testing, costs to be borne by Applicant.

State is Required to Deliver Evidence to this Court on Receipt of Motion
	Article 64.02 of the Code of Criminal Procedure provides:
On receipt of this motion, the convicting court shall provide the attorney representing the state with a copy of the motion, and require the attorney representing the state to deliver the evidence to the court, along with a description of the condition of the evidence,  or explain in writing to the court why the state cannot deliver the evidence to the court.

Court’s Authority to Order DNA Testing
	Article 64.01 of the Code of Criminal Procedure provides that the convicting court may order forensic DNA testing of evidence containing biological material secured in relation to the offense and was in the possession of the state during the trial of the offense, but was not previously subjected to DNA testing or “although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.”  Tex. Code Crim. Proc. art. 64.01(b).  The biological material was subjected to DNA without probative results.  The technology now exists which would remove any uncertainty  about the identity of the person to whom the spermatozoa belonged.

If Exculpatory Results are Obtained,
It is Unlikely Applicant  would have been Convicted

	Applicant was charged with the offense of capital murder by indictment, alleging that he knowingly and intentionally caused the death of Ms. Victim by cutting her with a knife and by striking her with a blunt object and that he intentionally caused her death while he was in the course of committing and attempting to commit burglary of a habitation.   The case against Applicant was entirely circumstantial.  The State relied upon blood samples taken from the scene, a palmprint at the victim’s window, and bite marks.  The opinion from the Court of Criminal Appeals is attached.  The palmprint was hotly contested at trial.  Bite mark evidence is dubious evidence.  DNA evidence favorable to Applicant would have created a reasonable probability that Applicant would not have been convicted.
	This motion for DNA testing is not and does not delay any execution of sentence, but is consistent with the goals of the criminal justice system, i.e., freeing the innocent and punishing the guilty. 
Request for Findings
	
	Applicant requests that the Court make the following findings: 

(1) the evidence still exists and is in a condition making DNA testing possible; 

(2) the evidence has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; 

(3) that identity was or is an issue in the case; and

(4) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and

(5)  Applicant’s request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

PRAYER FOR RELIEF

	WHEREFORE, PREMISES CONSIDERED, Applicant respectfully requests that this Court order the _________ County District Attorney’s office to deliver to the Court the above-referenced forensic samples available for testing and forward them to Gene Screen to compare Applicant’s DNA with the sample of spermatozoa.
							Respectfully submitted,

							                                                          
							Signature Block

CERTIFICATE OF PRESENTMENT

	I hereby certify that I have mailed a true and correct copy of this motion, this day, May 10, 2001, to:

	Assistant District Attorney	
	_________ County District Attorney’s Office
	_________, Texas 
	(000/000-0000)

	Honorable Judge _____________
	Courthouse
	__________, Texas 000000

NO. 

THE STATE OF TEXAS	§	IN THE DISTRICT COURT OF
§
§	COUNTY, TEXAS
§
Mr. Defendant	§	JUDICIAL DISTRICT

ORDER

ON THIS day came on to be heard the foregoing Defendant’s Motion for Forensic Testing  of Samples of Sepermatozoa.  The Court, having considered the Motion and the argument fo counsel, find the Motion should be ______________________________.

SIGNED THIS ____day of _____________, 20_____.

________________________
JUDGE PRESIDING