Here are the minimum facts.

1. Young woman is killed.
2. Four suspects.
3. Two statements relate a gang rape and then victim is beaten to death. (Really ugly autopsy report.)
4. Non motile spermatazoa found in dead woman.

Question: Is DNA testing feasible to identify one donor out of four?

Hearing on Art. 64 next week.

(BTW two statements relate rape participation by applicant. Does this kill the identity issue?)

Would the absence of the defendant's dna mean a reasonable probability exists that the person would not have been prosecuted or convicted? I am just not sure how absence is exculpatory, especially if conviction was obtained on a parties theory. If eyewitness said defendant participated directly in the rape, then i guess absence casts doubt on truth of that testimony. Was alibi defense relied on?

Applicant pled to lesser Sexual Assault, in exchange for testimony capital murder was dismissed against him. Applicant's statement more inculpatory than the other statement.

So, are you saying Defendant is now admitting to committing aggravated perjury?

I understand the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis that the defendant pleaded guilty, but in your case it appears the defendant testified or gave an out-of-court statement that he had committed the offense (or at least was present). To my feeble mind that should be enough to say identity was not an issue at the trial and he fails to meet the initial "only if" criteria for testing. 64.03(a)(1)(B). In any event, the evidence was not exculpatory. At best the missing evidence would merely have muddied the waters. Thompson, 95 S.W.3d at 472.

Interesting angle. Maybe I'll look into that if my primary argument fails.

Your example highlights why plea papers should make it clear that the defendant is agreeing to waive the right to additional discovery and testing if he pleads guilty. The US Supreme Court held last year that there is no right to exculpatory evidence if the defendant pleads guilty.

Now, the Court did not address whether a defendant can waive a claim of innocence, but the type of DNA evidence you describe sounds more in the nature of something the defendant could have used to muddy the waters, not establish innocence.

John my post after Martin's was a response to your post on perjury.

To both thanks, your post confirm my feelings about the writ in this case. Martin, thanks for the cite.