In 2009, Pedro Trejo was convicted of sexually assaulting his niece who was 12 years old at the time of the crime. He was accused after his niece got pregnant and subsequently suffered a miscarriage. The tissue form the miscarriage was submitted to DNA testing prior to his trial and showed there was more than a 99% likelihood that he was the father of the unborn child.

Trejo submitted a motion for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The statute states that a court can grant a motion for evidence to be subjected to DNA re-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.” The statute further stipulates that the defendant must establish that “(1) evidence exists in a condition making DNA testing possible; (2) the evidence has been subjected to a sufficient chain of custody to establish its integrity; (3) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; (4) identity was or is an issue in the case; (5) he would not have been convicted if exculpatory results had been obtained through DNA testing; and (6) the request for DNA testing is not made to unreasonably delay the execution of his sentence or interfere with the administration of justice.”

Trejo’s request was denied because he did not assert any facts to support the requirements of the statute and rather just made a bare assertion that his case met the statutory requirements.