Routier exibit 2

IN THE CRIMINAL DISTRICT COURT NO.3 OF DALLAS COUNTY, TEXAS

EX PARTE

DARLIE LYNN ROUTIER

) ) ) ) ) ) ) )

Writ No. W96-39973-J (Trial Court No. F96-39973-J)

APPLICANT DARLIE LYNN ROUTIER'S SECOND MOTION FOR FORENSIC DNA TESTING PURSUANT TO CHAPTER 64 OF CODE OF CRIMINAL PROCEDURE

Applicant Darlie Lynn Routier ("Applicant"), through undersigned counsel, respectfully

moves this Court to order additional forensic DNA testing pursuant to Chapter 64 of the Texas

Code of Criminal Procedure on certain items of evidence that are in the State's possession and

that were not previously subjected to DNA testing. Specifically, Applicant seeks testing of the

following evidence recovered from 5801 Eagle Drive, Rowlett, Texas on June 6, 1996:

1. Previously untested blood stains from a tube sock found in the alley behind Applicant's residence on the morning of June 6, 1996;

2. Limb hair( s) taken from the same tube sock;

3. Blood from an unidentified fingerprint left on Applicant's glass coffee table on the morning of June 6, 1996;

4. Previously untested blood stains from the night shirt worn by the Applicant on the morning of June 6, 1996;

5. Previously untested blood stains and swabbings from a butcher knife found in Applicant's kitchen, believed to be the murder weapon; and

6. Previously untested blood stains on pillows located on or around the living room couch upon which Applicant slept during the morning of June 6, 1996.

Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 1 of 16

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EXHIBIT 2

Applicant previously sought and was denied testing of these items under a former version

of Article 64.01 on the ground that effective DNA testing was available at the time of trial and

Applicant did not show the previous lack of testing was through no fault of her own. However,

in September 2011, Article 64.01 was amended to make these considerations irrelevant and to

permit testing of all evidence that was not previously subjected to DNA testing. Accordingly,

Applicant now renews her request for forensic DNA testing of these items of evidence.

PROCEDURAL BACKGROUND

On November 4, 2003 and January 28,2005, Applicant filed her first Motion for Forensic

DNA Testing and a Supplemental Motion for Post-Conviction Forensic DNA Testing, requesting

DNA testing of the items of evidence listed above and other pieces of evidence pursuant to

Chapter 64 of the Texas Code of Criminal Procedure. After the motions were denied by the trial

court, the Texas Court of Criminal Appeals issued an opinion permitting Applicant to test certain

items of evidence but not others. Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008).

As pertinent here, the Court denied Applicant testing of the previously untested evidence

listed above because the Court found that Applicant was unable to satisfy the standard of former

Article 64.01 (b )(1 )(A) or (B), namely that: (1) DNA testing was not available at the time of trial;

(2) DNA testing was available, but not technologically capable of providing probative results; or

(3) the evidence was not previously subjected to DNA testing through no fault of Applicant.

Significantly, with respect to each of those items of evidence that the Court found did satisfy

former Article 64.01, the Court also found them to satisfy the additional requirements of Article

64.03, most notably that Applicant had established by a preponderance of the evidence that she

would not have been convicted if exculpatory results had been obtained. ld. at 257-59.

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Effective September 1, 2011, the Texas legislature amended Article 64.01 to delete

subsections (b)(1)(A) and (b)(l)(B) in their entirety. Thus, the provisions under which DNA

testing of the listed items was previously denied no longer apply. Under the current version of

the statute, which applies to any motion filed on or after September 1, 2011, a convicted person

is entitled to seek forensic DNA testing of any biological material that was not previously

subjected to DNA testing, regardless ofwhetl1er DNA testing was previously available and

without the no-fault qualifications included in the prior version of the statute. Thus, application

ofthe Court ofCrimina1 Appeals' opinion to the current version of the statute requires that

Applicant be permitted to test the above-listed evidence that was previously denied.

LEGAL STANDARD

The current version of Article 64.01 applies to any motion for forensic DNA testing filed

on or after September 1, 2011. Postconviction Forensic DNA Analysis, 2011 Tex. Sess. Laws,

ch. 366, §§ 4-5. Pursuant to that statute, a convicted person may submit a motion for forensic

DNA testing of evidence containing biological material if that evidence was: (1) secured in

relation to the offense that is the basis of the challenged conviction; (2) in the possession ofthe

state during the trial ofthe offense; and (3) not previously subjected to DNA testing. 1 Tex. Code

Crim. Proc. Ann. art. 64.01(a-1), (b) (West 2013). The motion must be accompanied by an

affidavit sworn to by the convicted person containing statements of fact in support of the motion.

Jd art. 64.01 (a-1 ). Applicant's affidavit in support ofthis motion is attached hereto.

Pursuant to Article 64.03, if the prerequisites of Article 64.01 are satisfied, the convicting

court may order forensic DNA testing if: (1) the evidence still exists and is in a condition to be

1 Article 64.01 also permits DNA testing of evidence previously subjected to DNA testing, if the evidence 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 ofthe previous test. Tex. Code Crirn. Proc. Ann. art. 64.01(b)(2) (West 2013). However, none of the ev~dence at issue in this motion was previously subjected to DNA testing.

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tested; (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) identity was

or is an issue in the case; (4) the convicted person establishes by a preponderance ofthe evidence

that the person would not have been convicted if exculpatory results had been obtained through

DNA testing; and (5) the request for the proposed DNA testing is not made to unreasonably

delay the execution of the sentence or the administration of justice. !d. art 64.03(a).

ARGUMENT

As an initial matter, "Chapter 64 does not prohibit a second, or successive, motion for

forensic DNA testing." Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006); see also

Ex parte Suhre, 185 S.W.3d 898, 899 (Tex. Crim. App. 2006). Indeed, Texas courts have

frequently considered successive motions for DNA testing on their merits. See, e.g., Birdwell v.

State, 2011 WL 6956113 (Tex. Crim. App. Dec. 28, 2011); In re Adeleke, 2008 WL 4052999

(Tex. Crim. App. Aug. 29, 2008). Moreover, a successive motion is particularly appropriate

here, where the statute was amended since the denial of Applicant's first motion to broaden the

availability of DNA testing and to eliminate the very grounds on which Applicant's request was

previously denied. Thus, Applicant's prior motions for forensic DNA testing do not limit the

availability of the DNA testing she requests in this motion. The only relevant inquiry is whether

Applicant has met her statutory burden under Articles 64.01 and 64.03. She undoubtedly has.

I. The Evidence at Issue Satisfies the Prerequisites of Article 64.01.

The evidence for which Applicant requests forensic DNA testing indisputably falls within

the scope of Article 64.0 1. First, there is no dispute that all of the evidence at issue contains

"biological material," as defined by the statute to include, as relevant here, blood, hair, or other

identifiable biological evidence that may be suitable for forensic DNA testing. Tex. Code Crim.

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Proc. Ann. art. 64.0l(a)(l). Second, there is no dispute that the evidence was taken from the

crime scene at the time of the investigation and was in possession of the state at the time of trial.

Third, none of the evidence at issue was ever previously subjected to DNA testing.

Although other blood stains on the tube sock, night shirt, knife, butcher knife and pillows were

previously tested, Applicant seeks in this motion only to test the untested blood stains on those

items. See Routier, 273 S.W.3d at 248 (holding that each individual sample of biological

material must be considered separately for purposes of Article 64.01, even if taken from the

same physical object). Similarly, the limb hair from the tube sock and the bloody fmgerprint on

the coffee table were never tested at all. Jd at 249 (limb hair), 252 (fingerprint). While

numerous samples of biological material taken from the crime scene were tested, the

determination of what items and samples were selected for testing and which were not was made

strictly by the state, without input from Applicant and Applicant's trial counsel. As a result, this

potentially exculpatory evidence was never submitted for DNA testing. Under amended Article

64.01, that is all that is required to entitle Applicant to DNA testing ofthis evidence now?

II. Applicant Is Entitled to Forensic DNA Testing Pursuant to Article 64.03.

The Texas Court of Criminal Appeals already held that Applicant satisfied each ofthe

requirements of Article 64.03 with respect to the evidence for which DNA testing was already

permitted. For the same reasons, those requirements are satisfied for the evidence at issue here.

A. This Court Has Already Found That the Evidence Still Exists, Is Subject to DNA Testing, and Has Been Subject to a Sufficient Chain of Custody.

In this Court's January 25, 2007 Order on Motion for DNA Testing, this Court already

found that the evidence at issue still exists, is in a condition making DNA testing possible, and

2 As discussed above, the only reason that DNA testing of these items of evidence was denied previously is because of the provisions requiring the unavailability of DNA testing at the time of trial and/or no fault on the part of the applicant. However, the 2011 amendments to the statute expressly removed those provisions.

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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. See Order on Motion for DNA

Testing, at 1 (Jan. 25, 2007). Nothing has changed in this respect since the Court's Order.

1. Blood stains from tube sock: One ofthe most critical items of evidence in this

case is a bloody tube sock that was found in the alley behind Applicant's home and that both the

State and Applicant agree is connected to the murders of Applicant's children. Although certain

portions of the tube sock were previously submitted to testing, additional blood stains on the

sock were not tested. These untested blood stains can be isolated or "cleaned" using current

technology that will allow Applicant to identify all DNA contained in those blood stains.

2. Limb hair from tube sock: In addition to the blood stains, human limb hairs were

also recovered from the tube sock. These hairs may be subjected to current mitochondrial DNA

testing techniques that may be able to identify their source.

3. Blood from unidentified fingerprint: In addition to the tube sock, the other most

critical piece of evidence in this case is an unidentified bloody fingerprint found on the coffee

table in Applicant's living room, which has been excluded as belonging to anyone who was in

Applicant's home during or shortly after the attacks. This fingerprint may be subjected to

current DNA testing to determine whether the blood also belongs to an unidentified individual.

Further, even if the blood in the fingerprint originated from one of the victims of the crime, it is

possible that the person who left the fingerprint may have deposited oils into the blood while

leaving the fingerprint. Y-chromosome testing (a form ofDNA testing) may be conducted on

this print to differentiate between male and female DNA and to determine whether the print

belongs to a male outside Applicant's household.

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4. Blood stains from night shirt: As with the tube sock, certain blood stains on the

night shirt were previously submitted to DNA testing, but the night shirt was not tested

extensively enough to create a comprehensive DNA "map" of the night shirt. The untested blood

stains may be tested with current DNA testing techniques to determine their source. In addition,

the untested blood stains can be subjected to Y -chromosome testing to isolate male DNA and

determine whether they contain the blood of an intruder.

5. Blood stains and swabbings from butcher knife: Again, random blood samples

were tested from the knife found in Applicant's kitchen, which the State and Applicant agree was

used in the murder of Damon Routier, but not all blood deposits on the knife were tested. These

samples can be tested with current DNA testing methods.

6. Blood stains on pillows: The December 2, 1996 DNA testing report indicated

there were two blood stains on a beige pillow that matched Applicant. However, as with the tube

sock, night shirt and knife, Applicant believes there were additional stains on the pillow that

were not tested and that can be tested with current testing methods.

To the best of Applicant's knowledge, all of the evidence above has been subjected to a

sufficient chain of custody, and none has been substituted, tampered with, replaced or altered

since it was collected from Applicant's residence on or about June 6, 1996. All of these items of

evidence were collected from Applicant's residence and, to the best of Applicant's knowledge,

have remained in the possession of the State, the Court, the Rowlett Police Department, or the

Southwest Institute of Forensic Sciences (a DNA testing laboratory) since that time.

B. Identity Is the Single Most Important Issue in Applicant's Case.

The next prerequisite to an order of forensic DNA testing is a finding by the Court that

"identity was or is an issue in the case." Tex. Code Crim. Proc. Ann. art. 64.03(a)(l)(B). As this

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Court is well aware, identity has been, and still is, the single most important issue in Applicant's

case. Applicant has consistently maintained that she did not commit the crime for which she is

convicted and that it was in fact an unknown intruder who committed the murders. DNA

analysis of this as-yet untested evidence may establish the identity of the actual perpetrator.

C. Applicant Has Established by a Preponderance of the Evidence That She Would Not Have Been Convicted if Exculpatory Results Had Been Obtained Through DNA Testing on the Requested Evidence.

Applicant must next establish by a preponderance of the evidence that she would not

have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code

Crim. Proc. Ann. art. 64.03(a)(2)(A). This provision requires Applicant to prove that "had the

results ofthe DNA test been available at trial, there is a 51% chance that [she] would not have

been convicted." Routier, 273 S.W.3d 257 (quoting Smith v. State, 165 S.W.3d 361,364 (Tex.

Crim. App. 2005)). For purposes of this inquiry, the Court must assume that the results of all of

the DNA testing to which Applicant is entitled under Article 64.01(b) would prove favorable to

her. Id The Coru1 must then determine whether there is a greater than 50 percent chance that

Applicant's jury would not have convicted her if it had been aware of those presumptively

favorable test results. Id. Moreover, in performing this analysis, the Court must consider the

presumptively exculpatory DNA testing results collectively rather than in isolation. !d. (holding

that although certain items may not prove much by themselves even if from an unknown source,

"when we combine the presence of the hairs with the blood evidence, a clearer circumstantial

picture begins to emerge corroborating the appellant's story of an unknown intruder").

The Court of Criminal Appeals has already found expressly that blood from an unknown

third party male on the tube sock and the night shirt would substantially corroborate Applicant's

exculpatory account of the murders and "have a strong tendency to engender a reasonable doubt

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in an average juror's mind." ld. at 257-58. The same reasoning applies to the other four pieces

of evidence for which DNA testing is requested. As detailed extensively in prior briefing in this

case, Applicant has steadfastly maintained that she is innocent of the crimes of which she was

convicted and that the murders were committed by an unknown intruder. Further, as the Court of

Criminal Appeals has already recognized, "the State's theory is hardly unassailable" and is not

"wholly consistent with the circumstantial evidence." ld at 259. Thus, as the court further

explained, exculpatory DNA testing results indicating the presence of an unknown intruder in

Applicant's home "could readily have tipped the jury's verdict in [Applicant's] favor." Jd.

All of the requested DNA testing is geared toward either: (1) proving the presence of

another individual at the scene of the crime, thereby confirming Applicant's version of events

and her innocence of the murders; or (2) disproving the State's theory of the crime.

1. Blood stains from tube sock: The presence of blood belonging to either an

unknown third party or Applicant on the tube sock found in the alley would severely undermine

the State's theory of the crime and call Applicant's conviction into doubt. At trial, the State

contended that Applicant stabbed her two sons, ran outside to plant the sock in the alley, returned

inside, and then stabbed herself to make it appear as if she also was attacked. If Applicant's

blood is found on the tube sock in the alley, it would demonstrate that she was already bleeding

when the sock was deposited. Since no blood was found between the house and the alley, such

evidence would prove that the sock was placed in the alley by a third party, thus corroborating

Applicant's account that the murders were committed by an unknown intruder. Similarly, the

presence of the blood of a third party on the tube sock, which also contains the blood of Devon

and Damon Routier would conclusively link that unknown third party to the scene of the crime.

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2. Limb hair from tube sock: Both the State and Applicant agree that the tube sock is

connected to the attacks on Applicant's children. If DNA tests show that the limb hair belongs to

an unidentified third party, those results would provide strong evidence that an intruder was in

Applicant's home on the night of the murders, corroborating Applicant's account of events.

3. Blood from unidentified fingerprint: The fingerprint on Applicant's coffee table,

which belongs to an unidentified adult, is strong evidence that an intruder was present at the time

of the attacks. If DNA tests establish that the blood in the fingerprint also belongs to an

unidentified individual, it would further support Applicant's account that a third party committed

the murders. Even if the blood in the fingerprint belongs to one of the victims of the crime, the

fingerprint may also contain the DNA of the individual who left the fingerprint. Such results

could establish that an intruder committed the crimes.

4. Blood stains from nightshirt: Again, exculpatory DNA testing results could show

the presence of a third party's DNA on Applicant's night shirt. It is common for attackers who

use a knife to cut themselves in the process. If DNA testing indicated that the blood stains on the

night shirt also contained the blood of an unknown third party, in addition to the overwhelming

amount of blood from Applicant, it would further corroborate Applicant's testimony that a third

party intruder committed the crimes. In addition, the State's expert testified at trial that a spot of

blood on the back of Applicant's nightshirt belonging to Damon Routier was "cast off," and was

consistent with Applicant having stabbed Damon. If this were true, however, one would expect

to see numerous spots of Damon's blood in a spatter pattern- not just the single spot identified

by GeneScreen. DNA testing results indicating the absence of such a spatter pattern would

further undermine the State's theory of the crime.

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5. Blood stains and swabbings from butcher knife: The State and Applicant agree

that this knife was used in the murder of Damon Routier and the attacks on Applicant. If the

perpetrator cut himself while wielding the knife, there may be trace amounts of the perpetrator's

blood on the weapon. As with the blood stains on the tube sock and nightshirt, results showing

the presence of an unknown third party would be highly exculpatory.

6. Blood stains on pillows: As with the other blood stains, the untested blood stains

on the beige pillow referred to in the December 2, 1996 DNA testing report may yield

exculpatory results revealing the presence of an unidentified intruder at the scene of the crime.

Exculpatory results from any one of these six pieces of evidence - whether the DNA of

an unknown third party, or in the case of the tube sock, the blood of Applicant- would strongly

support, if not conclusively prove, that the murders were committed by an intruder and that

Applicant is innocent of the crimes for which she was convicted. When such results are viewed

collectively, however, their exculpatory effect becomes even stronger. For example, if DNA

testing shows the presence of DNA from the same unknown source on the tube sock, the bloody

fingerprint, the nightshirt, the knife and the pillows, there could be no other explanation than that

that an unknown individual was present at the scene of the crime. As the Court of Criminal

Appeals has already held, such proof of an unknown intruder "would more likely than not have

caused the jury to harbor a reasonable doubt as to [Applicant's] guilt and decline to convict her."

Routier, 273 S.W.3d at 259. In other words, with such exculpatory results, there is at least a 51%

likelihood that Applicant would not have been convicted of the crimes of which she was charged.

D. Applicant's Request for DNA Testing Is Not Made to Unreasonably Delay the Execution of Her Sentence or the Administration of Justice.

Finally, Article 64.03(a)(2)(B) requires that Applicant establish by a preponderance of

the evidence that her request is not made to unreasonably delay the execution of her sentence or

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the administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(B). "Unreasonable

delay" has been found only in the most extreme circumstances, such as where a motion for DNA

testing is filed on the eve of a scheduled execution. See, e.g., Swearingen v. State, 303 S.W.3d

728,736 (Tex. Crim. App. 2010) (denying motion filed 21 days before scheduled execution and

noting "established pattern of filing motions shortly before an execution date"); Thacker v. State,

177 S. W.3d 926, 927 (Tex. Crim. App. 2005) (motion filed less than a month before scheduled

execution); Swearingen v. State, Hughes v. State, 2012 WL 5878821, at *1 (Tex. Crim. App.

Nov. 15, 2012) (motion filed three days before execution); Wilson v. State, 2012 WL 3206219, at

*4 (Tex. Crim. App. Aug. 7, 2012) (motion filed less than a week before scheduled execution).

In contrast, Applicant is still in the midst of her post-conviction proceedings and no

execution date has been scheduled. Applicant has filed a Petition for Writ of Habeas Corpus in

the United States District Court for the Western District of Texas, and all proceedings on that

Petition have been stayed pending the completion of state-ordered DNA testing. Further,

Applicant and the State have both been working to complete the DNA testing that has previously

been ordered and have only recently received the results of that testing. Applicant does not file

this Motion to delay these proceedings, but rather to obtain access to evidence that will properly

and expeditiously advance her claims in the federal habeas proceedings. Applicant seeks the

requested DNA testing as soon as reasonably possible so that the results of that testing may be

considered in conjunction with Applicant's federal habeas proceedings. Significantly, as

described above, Applicant originally sought the DNA testing sought by this Motion nearly ten

years ago, but her requests were denied under the now-obsolete prior version of the statute.3

3 In this Court's January 25, 2007 Order on Motion for DNA Testing, this Court found that Applicant's request was not made for the purpose of unreasonably delaying the execution of sentence or the administration of justice.

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CONCLUSION

For the foregoing reasons, Applicant respectfully requests that this Court grant her

motion for forensic DNA testing of the above-referenced items of evidence pursuant to Chapter

64 of the Texas Code of Criminal Procedure. Applicant further requests that this Court order

such testing to be completed at a neutral laboratory to be designated by Applicant and the costs

be paid by the State of Texas.

DATED: November 1, 2013.

OF COUNSEL: Richard A. Smith State Bar No. 24027990 LYNN, TILLOTSON, PINKER & Cox LLP 2100 Ross A venue, Suite 2700 Dallas, TX 75201 (214) 981-3824

Lauren E. Schmidt Pro hac vice BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth Street, 22nd Floor Denver, CO 80202 (303) 223-1207

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Respectfully submitted,

Richard Burr, Esq. State Bar No. 24001005 P.O.Box525 Leggett, TX 77350 (713) 523-2299

J. Stephen Cooper State Bar No. 04780100 4 711 Gaston A venue Dallas, TX 75246 (214) 522-0670

Counsel for Darlie Lynn Routier


CERTIFICATE OF SERVICE

I hereby certifY that I caused a copy of Applicant Darlie Lynn Routier's Second Motion

for DNA Testing to be served by hand delivery on November 1, 2013:

Lisa Smith Assistant District Attorney Appellate Division 133 N. Riverfront Blvd. LB-19 Dallas, Texas 75207-4399 Tel. (214) 653-3625 Fax (214) 653-3643

J. STEPHEN COOPER

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EX PARTE

IN THE CRIMINAL DISTRICT COURT NO. 3 OF DALLAS COUNTY, TEXAS

§ § § Writ No. W96-39973-J § (Trial Court No. F96-39973-J) §

DARLIE LYNN ROUTIER §

DECLARATION OF DARLIE LYNN ROUTIER IN SUPPORT OF MOTION FOR FORENSIC DNA TESTING

STATE OF TEXAS § § §

On this day Darlie Lynn Routier, Applicant, stated the following:

1. My name is Darlie Lynn Routier. I am 43 years of age and am competent to make this

declaration. I have personal knowledge of the facts stated in this declaration, and these facts are all

true and correct.

2. I am the applicant in the above-captioned writ of habeas corpus. In support of this

writ and my other post-conviction proceedings, I am seeking forensic DNA testing of certain

evidence containing biological material as provided by Chapter 64 of the Texas Code of Criminal

Procedure.

3. Prior to my trial for the crime for which I was convicted, the State submitted the

results of forensic DNA testing that had been perfom1ed on samples of blood and other biological

AFFIDA VJT OF DARLIE LYNN ROUTIER JN SUPPORT OF MOTION FOR DNA TESTING --Page 1


materials collected from in and around my former residence, located at 5801 Eagle Drive, Rowlett,

Texas.

4. I am currently seeking testing of samples of biological material collected from in and

around my former residence, including blood and human hairs, that were not selected for DNA

testing prior to my trial.

5. I have always maintained, and maintain today, that I did not commit the crime for

which I was convicted.

6. It is my belief that the DNA testing I have requested may prove my innocence. I

believe that some or all of these tests will conclusively establish the presence of an unknown intruder

in my house at the time of the crime.

7. I am not making this request for the purposes of delay, but so that the evidence may

be considered in conjunction with my writ of habeas corpus and I may establish my innocence as

quickly as possible.

My name is DARLIE LYNN ROUTIER, my date of birth is October 4, 1970, and my inmate

identifying number, if any, is 999220. I am presently incarcerated in Mountainview Unit, 2305

Ransom Road, Gatesville, Texas 76258. I declare under penalty of perjury that the foregoing is true

and correct.

I p-/1? Signed on the .J_;L_ day of October, 2013.

DARLIE LYNN ROUTIER, Declarant

AFFIDAVIT OF DARLIE LYNN ROUTIER IN SUPPORT OF MOTION FOR DNA TESTING --Page 2


Documents

Routier exibit 2