Hmmm.... Looks good for Darlie so far.
Here are the court documents
THE STATE OF TEXAS
DARLIE LYNN ROUTIER
IN THE CRIMINAL
DISTRICT COURT NO. 3
ORDER FOR ADDITIONAL DNA TESTING
Following a hearing on the matter, the Court has determined that counsel
for the defendant, Darlie Lynn Routier and counsel for the State have agreed to
have additional DNA testing performed in this case. The parties have agreed to
have Quantifilier Duo testing performed on extracts for the items 24-DI3, 24-DI4,
L-4, L-10, 24T9, 24Tl2, 24Tl3, and 24Tl5. The parties have also agreed to have
Jim Hammond of the Dallas County District Attorneys Office transport the items
from the Department of Public Safety Laboratory in Austin to the University of
North Texas for testing.
IT IS THEREFORE ORDERED that the Department of Public Safety
Laboratory shall release custody of the listed extracts to Jim Hammond. The said
Jim Hammond shall take custody of the listed items from the Department of
Public Safety Laboratory and shall transport said items to the University of North
Texas for testing. Jim Hammond shall coordinate with the University of North
Texas Laboratory for delivery of the items. The University of North Texas is to
conduct Quantifiler Duo testing at the quantification stage on the above listed
items to determine how much human and male DNA is present.
Case 5:05-cv-01156-FB Document 59-1 Filed 12/10/13 Page 1 of 3
On completion of the testing, the results of the testing and all data related to
the testing required for an evaluation of the test results shall be filed with this
Court, and copies of the results and data shall be served on the defendant's
attorneys of record, J. Stephen Cooper, firstname.lastname@example.org, and Richard
Smith, email@example.com, and the attorney representing the State, Lisa Smith,
Lis a. Smith@dallascounty .org.
No additional testing is to be conducted on the samples following the
Quantifiler Duo tests until a determination is made by this Court on whether
additional YSTR testing is necessary.
SIGNED this let 1t4 day of November, 2013.
GRACIE LEWIS, JUDGE
CRIMINAL DISTRICT COURT NO. 3
DALLAS COUNTY, TEXAS
Case 5:05-cv-01156-FB Document 59-1 Filed 12/10/13 Page 2 of 3
THE STATE OF TEXAS
IN THE CRIMINAL DISTRICT
DALLAS COUNTY, TEXAS
The Court hereby ORDERS the Dallas County Clerk to provide the State and
counsel for Darlie Routier access to the evidence in the Clerk's custody in this case and
the opportunity to photograph it.
Judge Giacie Lewis
Case 5:05-cv-01156-FB Document 59-1 Filed 12/10/13 Page 3 of 3
Last edited by CathyR; 12-20-2013 at 07:19 PM.
IN THE CRIMINAL DISTRICT COURT NO.3
OF DALLAS COUNTY, TEXAS
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
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.
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 2 of 16
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.
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 3 of 16
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).
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 4 of 16
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 5 of 16
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 6 of 16
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
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 7 of 16
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
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 8 of 16
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 9 of 16
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 10 of 16
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
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 11 of 16
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.
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 12 of 16
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.
Richard A. Smith
State Bar No. 24027990
LYNN, TILLOTSON, PINKER & Cox LLP
2100 Ross A venue, Suite 2700
Dallas, TX 75201
Lauren E. Schmidt
Pro hac vice
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, 22nd Floor
Denver, CO 80202
Richard Burr, Esq.
State Bar No. 24001005
Leggett, TX 77350
J. Stephen Cooper
State Bar No. 04780100
4 711 Gaston A venue
Dallas, TX 75246
Counsel for Darlie Lynn Routier
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 13 of 16
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:
Assistant District Attorney
133 N. Riverfront Blvd. LB-19
Dallas, Texas 75207-4399
Tel. (214) 653-3625
Fax (214) 653-3643
J. STEPHEN COOPER
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 14 of 16
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
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
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 15 of 16
materials collected from in and around my former residence, located at 5801 Eagle Drive, Rowlett,
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
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
Case 5:05-cv-01156-FB Document 59-2 Filed 12/10/13 Page 16 of 16
Lol... Yea, I fixed the link.
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DARLIE LYNN ROUTIER, §
v. § Civil No. SA-05-CA-1156-FB
WILLIAM STEPHENS, Director, §
Texas Department of Criminal Justice, §
Correctional Institutional Division, §
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER
TO THE HONORABLE COURT:
Counsel for Petitioner Darlie Lynn Routier (“Petitioner”) respectfully submits this
response to the Court’s Show Cause Order dated November 21, 2013. Petitioner requests that
the Court continue to maintain the stay currently in effect in this case because the parties and the
state trial court are actively continuing the process of obtaining and completing the DNA and
forensic testing at issue in both the state and federal proceedings. In support whereof, Petition
would show the Court as follows:
1. Counsel for Petitioner have reviewed the Status Report (Doc. 58) filed by
Respondent on December 10, 2013, and it appears that Petitioner and Respondent agree on both
the status of the DNA testing pending before the state court and their mutual request that this
federal case continue to be held in abeyance until that testing is concluded. Petitioner files this
separate response in order to more fully address the matters contained in the Court’s order.
Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 1 of 6
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 2
2. Much, but not all, of the DNA testing authorized by the Texas Court of Criminal
Appeals in this case has been completed. On November 19, 2013, the state trial court issued an
order requiring that three final extracts maintained by the Texas Department of Public Safety be
transferred to the University of North Texas for Quantifiler Duo testing. That testing is being
performed to determine how much human DNA is present in the extracts and how much of it is
male. Following the completion of the Quantifiler Duo testing, the state court will make a
determination as to whether additional Y-STR testing will be conducted on those samples. See
Exhibit 1 (Order for Additional DNA Testing). Although the samples have been transferred to
the UNT lab, the testing has not been completed at the present time.
3. In addition to the foregoing, on November 1, 2013, Petitioner filed her Second
Motion for Forensic DNA Testing Pursuant to Chapter 64 of Code of Criminal Procedure. See
Exhibit 2. In that motion, Petitioner seeks DNA testing on six additional items of evidence,
including blood stains and limb hairs from the tube sock found in the alley behind Petitioner’s
home the morning after her sons were stabbed to death. Petitioner had previously sought DNA
testing on those items, but it was denied by the Court of Criminal Appeals because the state
DNA statute required Petitioner to demonstrate that the items had not been tested at the time of
trial through no fault of her own. However, the state legislature subsequently amended the
statute to eliminate that requirement and permit testing of all evidence not previously subject to
DNA testing. See Tex. Code Crim. P. art. 64.01(b).
4. Petitioner’s motion for additional DNA testing is pending before the state trial
court. However, for this Court’s own decision-making process, there are two important items the
Court should consider. First, the items Petitioner has asked to have tested consist of some of the
same items for which this Court has previously granted Petitioner’s request for forensic
Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 2 of 6
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 3
discovery. See Order Granting in Part Motion for Discovery (Doc. 40); Order Regarding Motion
for Funding of DNA Testing (Doc. 47). The Chief Judge of the Fifth Circuit subsequently
disallowed the funding for that testing (Doc. 49), but the issue of funding would be mooted if the
state court orders the testing to be performed pursuant to its own authority in the case. Second,
counsel for Petitioner and counsel for the Dallas County District Attorney are attempting to reach
an agreement by which the items may be voluntarily tested by the University of North Texas
laboratory. If such an agreement can be finalized, it would also dispose of this Court’s need to
make any subsequent ruling on the testing of the requested items.
5. Petitioner requests that the Court continue to maintain this cause on the docket.
The original rationale for holding the case in abeyance remains as valid today as it was when the
Court first issued that order:
[I]n an order dated April 27, 2009, docket no. 49, the United States Court of
Appeals for the Fifth Circuit rejected authorization of federal funding for DNA
retesting and concluded ‘in the interest of comity, the federal courts should defer
until the proceedings connected to that retesting have run their course in state
court.’ This Court will therefore grant petitioner’s unopposed motion to vacate
the latest scheduling order and establish a status report procedure to facilitate
future scheduling. This Court will also stay and administratively close this case
until the proceedings connected to the DNA testing and retesting have run their
course in state court. In the interest of justice and closure, the State of Texas will
hopefully move expeditiously to conclude the DNA testing and any other relevant
(Doc. 53). While the DNA testing has not proceeded to an expedited conclusion, it has
nevertheless continued to move forward while this federal case has been stayed to permit the
testing to be accomplished. Moreover, the State’s recent proposal to resolve of Petitioner’s
renewed motion for testing of additional items of evidence by agreement would materially
advance, and perhaps partially negate, the DNA testing issues presented to this Court.
6. By law, Petitioner’s application for federal habeas corpus relief was required to be
filed on or before December 1, 2005, one year after the Texas Court of Criminal Appeals denied
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PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 4
her habeas corpus petition under state law. See 28 U.S.C. § 2244(d). Second or successive
applications for habeas corpus are permitted only in very narrow circumstances. Id. § 2244(b).
Dismissing Petitioner’s application would work a substantial injustice, as it would deny her the
ability to have the issues presented in her motion determined by the federal courts. The
undersigned attorney apologizes for the oversight of maintaining the 180-day status reports
required by the Court’s prior order, and will ensure that in the future they are timely and properly
filed on whatever schedule the Court may wish to impose.
Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 4 of 6
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 5
DATED: December 10, 2013 Respectfully submitted,
/s/ Richard A. Smith
Texas Bar No. 24001005
BURR &WELCH, PC
412 Main Street, Suite 1100
Houston, Texas 77002
(713) 893-2500 (fax)
Lauren E. Schmidt
Colorado Bar No. 37002
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, Colorado 80202
J. Stephen Cooper
Texas Bar No. 04780100
4711 Gaston Avenue
Dallas , TX 75246-1013
Richard A. Smith
Texas Bar No. 24027990
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3839 (fax)
COUNSEL FOR PETITIONER
DARLIE LYNN ROUTIER
Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 5 of 6
PETITIONER’S RESPONSE TO SHOW CAUSE ORDER Page 6
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing document was served on the Attorney
General for the State of Texas, Counsel for Respondent, on December 10, 2013, via ECF filing
and by mailing a copy of the instrument, with first class postage affixed to:
Tomee Heining, Esquire
Postconviction Litigation Division
P.O. Box 12548
Austin, Texas 78711-2548
/s/ Richard A. Smith
Richard A. Smith
4818-8892-1367, v. 1
Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 6 of 6
Ok Sinsaint has the results and I got the documents for the additional request that UNT complete the profiles that could not be done by the DPS labs. This should keep you reading a while. If you want the short version the limb hairs do not match Darlie Darin or the boys. The boys by default because Darlie is most certainly the mother and their DNA would match hers as they were testing the "mother" contributing factors. If additional test can find this DNA match on other items then there is absolute proof an intruder was in home. BTW all limb hairs match each other so one contributor of the hairs is found on the INSIDE of the sock. You can't claim the hairs were randomly picked up from the ground where it was thrown as the sock only touched the ground on the OUTSIDE of the sock.
I would like those hairs submitted to see if it matches any known people already in custody somewhere or ever in custody somewhere.
I want a re do. She really deserves all the dna testing they can do to really come to a conclusion in this case. One that isn't silly string related for petes sake. This case so reminds me of WM3; just get er done mentality.
Wow and wow on the results.
That sock. That sock has so bothered me and I don't think that a woman; could slit her own throat. I just don't. If ever a trial needed a do over, it's this one. Death is Different, dare I say it.......HJBP did and often.
Dont Be A Sheep
I'm not certain how to view the shirt testing evidence. Most of the numbers in the report are the same as the numbers used at trial. If so, 24T8 is really going to screw the prosecutions case. If that blood stain is actually Darlie's and not Devon's... Wow. Gene Screen screwed the pooch big time.
I wonder why the normal "Darlie done it" mob isn't here contesting the results yet. They were all foaming at the mouth that the results weren't released because they probably proved she did it. The results seem to say otherwise and now everyone is just so awkwardly silent? I don't get it.
Pipe in... Let's hear the arguments that Darlie was loaning out her socks. Or Texas limb hair storms. Or some random person walking the alley that night who had nothing to do with crime just happened upon the sock, tried it on, decided it wasn't a good fit or too stained for his liking so he just left it there. Something? Anything?
Last edited by Sinsaint; 12-21-2013 at 12:10 AM.
I haven't followed the case closely, so totally uneducated response, but I never thought she did it. I'm glad to hear that for once my instincts may have been right!
Rescuing one animal may not change the world, but for that one animal their world is changed forever! -Unknown
Were deer known to wander into Rowlett where Darlie lived? I believed the verdict, but if all 3 hairs are from the same person then am not going to argue about further testing especially if a limb hair was inside the sock. A limb hair, one of several from the same person even being in the house and ending up outside the sock would cause me some problems if I were on a jury. I googled and read that there are 3 hairs not from family. A pubic, facial, and limb hair.
Rescuing one animal may not change the world, but for that one animal their world is changed forever! -Unknown
I've never been convinced either way, but always hoped she didn't do it. Such a sad case. Maybe this latest info will be enough to get the Innocense Project involved. I want to see everything reviewed. I have a feeling her family hasn't had the resources or support needed for a thorough and timely review. I didn't read every word of these latest documents, but on the surface, it seems as if this DNA testing has been going for many many years. That's just not right.
So many things about this case have bothered me since the beginning. Chief among them was the presumed and allowed "expert testimony" of small town cops.
I don't think Darlie will be granted a new trial because the point will be moot. She just proved her innocence and maybe she will be FREED. With all the testing that is to be done if she is forced into another trial I would let the judge decide because 12 people may fall for the same BS again but a judge won't.
The case is complicated and comments made on tape to TV shows by Waddell will be used to impeach him and blow his testimony out of water.
Other blood splatter experts will show because of the size and lack of pattern the Bevel drops as I will call them are false junk science.
Darlie's blood being under the boys blood on her shirt will show she bled first before coming into contact with the boys blood.
Her lawyer will not object to the silly string tape so he will be allowed to submit the tape of her near collapse at the graves.
The doctor will be asked to clarify what is superficial.
The nurses will be asked to describe the steps of grieving and her being "flat" is denial.
Need I go on?
If anyone knows the answer, I want to make sure about the hairs. Have they proven by mitochondrial dna that the limb hair found in the sock is from the same person who left the other hairs in the home, or is that going for further testing?
YES!!!! There will be true justice served one day!!!!
Merry Christmas, Darlie. Some of us have believed in your innocence from the beginning.
I've never believed in her guilt. She was young, dumb, naïve, had poor legal representation, and a lot of people were jealous of her, but she was never a double murderer. I've kept quiet because of the " strong feelings" here, especially, but since my local newspaper printed a whole new series on the TRIAL, I've known justice wasn't on the table.
The judge slept, the Silly String video was botched by her attorneys, and she was a victim of PTSD, thus, her testimony was not valid.
Her neck wound could not have been inflicted by a medical person and come closer to her major blood vessels. The wound was meant to kill, and her defense wounds were REAL. No one would sit or lie through that kind of pain- inducing bruising and cuts. She was fighting.
Keep fighting Darlie. One day, you will be exonerated. I believe.
Note: No disrespect is meant to those who believe in her guilt. This is simply one case where I could not go along with public opinion for several reasons, some stated above, some not stated. I hope we can all get along despite differences of opinion.
UNLESS A LINK IS POSTED, MY POSTS REFLECT MY OPINION ONLY.
So, not that it means a damn thing, but I must be honest and admit that I, too would have a renewed sense of my instincts not being the "damaged goods" I've felt they were since this case..
But on a different note.. A note that actually does matter..
if this testing does bring about truth that has been hidden away all these years, then I must say that these boys as well as their momma, Darlie, DESERVE TO HAVE JUSTICE SERVED FOR WHAT'S BEEN CRUELLY TAKEN FROM THEM ALL!
I believe there are more of us than what anyone thinks..jmo.. Many who have believed that Darlie didn't kill her boys, but as you so respectfully, and much more eloquently than I could ever say, the extreme, strong stances have made it a case that some of us have purposely avoided even so much as dipping a toe into the, at times, heavy, torrential rains of drama, so to speak...
Anyhow, no matter the outcome these latest steps being taken are ONLY RIGHT, and sadly, should've been long since done, completed, and over with..but as the old, used up cliché says, "it's better late than never.."
The quickest way to become a fool is to argue with one..
Interesting case. I wonder if some of the belief in her guilt has been due to the fact that there are a lot of female posters here, and females tend to react more strongly to a possible scenario of a mother killing her children. (Also the Casey Anthony effect...it has caused a lot of anger and I've definitely seen that anger get played out in other cases, although I realize this case predates that one.)
I've also been one of those lurkers who assumed that with all the strident voices, she probably did it.
“Evil begins when you begin to treat people as things.” -- Terry Pratchett
There are also some outspoken posters still posting on the case from the area. This is their right, but I'm from the area as well and I don't have a one way viewpoint of the case.
When my local newspaper, the Hood Country News, did a 10 part expose' on the BEHAVIOR of those who mattered at the trial ( judge, jury, defense team and prosecution) my eyes were opened to the fact that Darlie, despite being her own worst enemy back then publicity- wise, DID NOT get a fair trial by due process of law.
Here are some of the procedural errors as I see them. Again, IMO.
1) Parkland doctors and nurses charted things about Darlie being upset, depressed, crying. Somber mood. Even suicidal because her sons were dead. The charted documentation IS the final word. At trial, most if not all of them lied, couldn't remember, " didn't mean what they had charted" or had different " recollections" than what was charted. I'm sorry, but what you record at the time of the incident is Canon. It stands and would have stood in court if her defense lawyers had been any good.
2) The Hood County News spoke with DARIN'S aunt, who had a journal from the trial. She was not allowed to write down what was said but could write her impressions of the courtroom. She noted how many times after lunch the judge went to sleep. It was over 40 times with testimony and examination and cross- examination of witnesses still going on. He was not presiding over the court. Again, Darlie was denied basic lack of due process due to inadequate courtroom procedure.
3) Rowlett PD was highly influenced by the Susan Smith incident in SC, IMO. She drowned her two little boys so she could have an affair with a man who didn't want the children around. Despite evidence of break- ins in Darlie's neighborhood, no one searched for an intruder. The focus was on Darlie before the blood had dried.
4) The crime scene was, of course, highly emotional. I read the autopsy reports for the two boys. Sentiment was extremely high that justice be done. Darlie was the easy target due to her youth, her relationship to the boys, her proximity to them that night, and things she said while in a pain- and painc induced state. IMO, Darlie had severe PTSD from seeing her boys cut to pieces, from her own assault in the living room with the knife wounds, the extreme bruising to her hands and arms and cuts there as well. Also, her panties were missing and she didn't know how or why. That's why her words were not always exactly the same She didn't KNOW who did this to her and her boys.
5) Darlie bore the brunt of criticism for everything from getting towels for the boys like a paramedic asked, to putting one on her own bleeding neck wound, to telling the 911 dispatcher after she called 911 and the DISPATCH said " Don't touch the knife" and Darlie replied " I already did". Darlie didn't initiate the talk about the knife, the dispatcher did. It's in the transcripts.
6) The Silly String video was part of a much longer video where the famiy came to remember one of the boys on his birthday. He had recently been buried. Darlie had cried and cried at the scene, but that part was cut out and not shown to the jury. MANY jurors have said that if they had seen the entire video, it would have made a difference. Might have changed their minds. This is another failure of Darlie's defense team.
7) Rowlett needed to solve this case and Darlie was the easiest person to pin it on because of Susan Smith, because she tried to live above her means. because she was seen as a tacky young bleached blonde with big implants. and because she often said things without thinking. She was very young, and immature. She was NOT a murderer, though, IMO.
Darin's testimony at trial hurt Darlie's case. He was rude at times, impudent, not well- spoken or well- mannered at all. Darlie was in no condition to testify emotionally ( again, I believe she had PTSD for years from trauma related to her own attack by a stranger that night as well as her boys dying in front of her) but her attorneys allowed both to make the situation for Darlie a lot worse through their own testimonies.
8) The bloody sock in the back alley way has always been used to point to Darlie's guilt. IDK why as it is believed that the sock did not come from the home. Also, it appears that the perp. put the sock over their hand to keep from cutting it. Not sure if it worked. Now it may be the piece of evidence which points to her innocence because of the unmatched foreign hairs not belonging to any one in the household. It is the smoking gun in the case, not anything Darlie said, and should be the piece of evidence which sets her free.
I have heard that the one living son, now grown, has leukemia. This breaks my heart. He was a small baby in a crib, not yet walking, when his brothers were killed. Darlie had no time with him when he was a baby because of the legal proceedings against her. Now it may be too late.
The only way this case can be looked at fairly is with truly open eyes and minds. With hearts that hurt but bear no ill will.
Praying for justice for Darlie, and for Drake's health.
Last edited by fran; 12-22-2013 at 06:33 PM. Reason: Unnecessary
UNLESS A LINK IS POSTED, MY POSTS REFLECT MY OPINION ONLY.