ACCEPTED
03-15-00549-CR
7963248
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/24/2015 9:41:31 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00549-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 11/24/2015 9:41:31 AM
JEFFREY D. KYLE
Clerk
********
RONNY GENE SMITH
vs.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 426th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 67764
******
STATE'S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co. bell. tx. us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3
Statement Regarding Oral Argument .... .. .. .. .. .. .. .. .... .. .. .... .. .. .. .. .... .. ... 4
Statement of the Case ... .. . .. . .. ... . ... ... .. . .. ... ... . .. . .. . .. . .. . .. . .. . ... ... .. . ... .. . ... ... 4
Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 4
Summary of State's Argument........................................................... 7
Argument and Authorities ... .. ... .. .. .. . ... .. ....... ... ... ... ...... ... .... .. ... .... .. .. ... 8
First Issue on Appeal .. . ... ... .. . .. . ... ... ... .. . ...... ... ... .. . .. . .. .... .. . ... ... .. . 8
TRIAL COURT ABUSE DISCRETION IN
DENYING APPELLANT'S PROSE MOTIONS
FOR DNA TESTING?
Standard of Review .. . .. . ... ... .. ... . .. . .. . ... .. . .. . .. . ... .. . ... .. ... . ..... 8
The Statutes ... ... ... ... ... .. . .. . .. . .. ... . ... .. . ... .. . .. . .. . ... .. . ... .. .... ..... 8
Application and Analysis ............................................... 10
Prayer.................................................................................................. 13
Certificate of Compliance with Rule 9 ...... ...... ...... ...... ... ...... ... ... ....... 14
Certificate of Service ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... ... ... ..... 14
2
INDEX OF AUTHORITIES
CASES PAGE
Holberg v. State, 425 S.W.3d 282 (Tx. Cr. App. 2014) ....................... 8- 9
Smith v. State, No. 03-11-00427-CR, 2013 Tex............................... 4
App. LEXIS 807 (Tx. App. Austin 3rd Dist. 2013 rev.ref.),
not designated for publication.
OTHER
Texas Code of Criminal Procedure
Article 64.01 ............................................................................... 8, 10
Article 64.01(b) .......................................................................... 10
Article 64.03 ........................................................................... 9- 11
3
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
This is an appeal of the trial court's order denying the Appellant's
pro se motions for post-conviction DNA testing. Those motions were
denied by the trial court, without a hearing, based upon its findings of
facts. (CR-74, 74, 103).
The Appellant gave timely notice of appeal (CR-105) and the trial
court certified his right to do so. (CR-106).
STATEMENT OF FACTS
The Appellant was convicted of the offense of sexual assault and
was subsequently sentenced as a habitual offender to sixty years in
prison. He appealed his conviction to this court and that conviction was
affirmed. Smith v. State, No. 03-11-00427-CR, 2013 Tex. App. LEXIS 807
(Tx. App. Austin 3rct Dist. 2013 rev. ref.), not designated for publication.
In that opinion, this court thoroughly reviewed the facts of the
case. Facts contained in that opinion that are germane to the issue now
before the court in this case are as follows:
4
• After the victim, A.T, was sexually assaulted by vaginal
penetration, her assailant took her cell phone and cigarette
lighter. Use of her cell phone led the police to the Appellant and
both items were discovered in his room.
• A.T. was examined by a SANE nurse and swabs were taken from
her vagina.
• The Appellant voluntarily gave his own DNA samples to the
investigating officers.
• Police also collected DNA samples from another individual who
had been in the area of the assault, but those samples were never
submitted for testing because that person was eliminated during
the course of the investigation as a suspect.
• The DNA recovered from the vagina of the victim was compared
to the known DNA sample taken from the Appellant and they
matched with a reasonable degree of scientific certainty.
• A.T. positively identified the Appellant as the person who had
sexually assaulted her at the trial.
Smith, Slip Op. at 1-3.
In his motion for post-conviction DNA testing (CR-36), as well as
his Amended Motion filed after the motion was denied (CR-83), the
5
Appellant primarily complained about the effectiveness of his trial
counsel, the same issue raised on direct appeal and rejected. It is very
difficult to determine from his motions exactly what the Appellant
requested as his DNA sample was tested and compared with that
recovered from the sexual organ of the victim. Apparently his primary
concern is whether or not his trial counsel should have pursued chain of
custody questions with respect to that test, rather than actually
requesting another test.
The State filed a response to the motions, with supporting
attachments (CR-51, 95). The trial court, in denying the motions
entered its findings of fact. Those findings were:
"1. The defendant was indicted in the 426th Judicial
District of Bell County, Texas on April 9, 2011 in
Cause Number 67,764 for the offense of Sexual
Assault".
2. The offense occurred on or about September 1, 2010
in Bell County, Texas.
3. The defendant's case was tried to a jury, who, after
hearing the evidence, found him guilty of Sexual
Assault, and who, after hearing punishment evidence,
sentenced him to sixty (60) years imprisonment.
4. The victim testified at trial and identified the
defendant as her attacker in court.
6
5. The known DNA profile extracted from cheek swab
that the defendant voluntarily gave to police matched
the DNA profile extracted from a vaginal swab taken
from the victim with a reasonable degree of scientific
certainty.
6. The defendant does not establish that his identify was
or is at issue in this case.
7. There is no showing that exculpatory test results
would have prevented the defendant from being
convicted of this crime.
8. There are no reasonable grounds for this Motion for
DNA Testing to be filed, hence the defendant's Motion
11
for Appointment of Counsel is denied. (CR-73, 74).
SUMMARY OF STATE'S ARGUMENT
The Appellant has failed to show by a preponderance of the
evidence that there was evidence in his case containing biological
material that has not been previously tested. He has also failed to show
that identity was at issue in the case, or that he would not have been
convicted if exculpatory results had been obtained through DNA testing.
The DNA of the Appellant and that recovered from the sexual organ of
the victim were tested and found to a reasonable degree of scientific
certainty to be from the same person.
7
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Did the trial court abuse its discretion in denying the Appellant's
Motions for Post-Conviction DNA testing?
Standard of Review
A trial court's decision to deny a request for DNA testing is
reviewed according to a bifurcated standard. The appellate court must
give almost total deference to the trial court's resolution of questions of
historical fact and application of law to fact questions that turn on
witness credibility or demeanor. All other questions are reviewed de
novo. The burden of proof is upon the petitioner by a preponderance of
the evidence. Holberg v. State, 425 S.W.3d 282, 284, 285 (Tx. Cr. App.
2014).
The Statutes
Article 64.01 of the Texas Code of Criminal Procedure provides that
a convicted person may submit a motion for forensic DNA testing of
evidence containing biological material. Under the law applicable at the
time of the filing of the Appellant's motion on April 28, 2015, this
required proof that the evidence contained biological material, not
8
merely a probability that it might. 1 Holberg at 285. Such a motion may
request DNA testing only if the evidence containing biological material
was secured in relation to the offense of which the defendant was
convicted and in the possession of the State during the trial, but was
either not subjected to DNA testing or, although previously tested, it can
now be tested with newer techniques that provide a reasonable
likelihood of results that are more accurate and probative than the
results of the previous test.
Article 64.03 of the Code sets out the requirements for an order
for DNA testing. A court may order such testing only if the court finds:
1. That the evidence still exists and is in a condition making
DNA testing possible; and
2. The evidence has been subject to a chain of custody
sufficient to establish that it has not been substituted,
tampered with, replaced, or altered in any material
respect; and
3. Identity was or is an issue in the case; and
1
The statute was amended to require only proof of a reasonably likelihood of biological
material, however, that amendment applies only to motions filed after the effective date
of September 1, 2015, and motions filed prior that date must be reviewed by the law in
effect at the time the motion was filed. S.B. 487 (3).
9
4. The convicted person establishes by a preponderance of
the evidence that (a) he would not have been convicted if
exculpatory results had been obtained through DNA
testing and (b) that his request for testing was not made
to unreasonably delay the execution of sentence or the
administration of justice. 2
Application and Analysis
In this case the Appellant's Motion for Post-Conviction DNA
testing fails to comply with the statutory requirements for such testing.
Article 64.01(b) states that the convicted person may request testing
only if he shows that evidence containing biological material was not
previously subject to testing or that new methods of testing now
available would be reasonably likely to produce more accurate and
probative results. In this case swabs were taken from the vagina of the
victim and the Appellant voluntarily gave DNA samples from his cheeks
to the officers. The DNA profiles developed from those samples were
tested by the Texas Department of Public Safety Laboratory and were
determined to a reasonable scientific certainty to be from the same
person. The DNA from the sperm recovered from the victim's vagina
came from a single source, with A.T., herself, as the only other
contributor. Not only was the biological evidence tested prior to trial, it
2
64.03 was also amended to add a requirement that there be a reasonable likelihood that
the evidence contains biological material as to motions filed on or after September 1,
2015 in accord with the amendments to 64.01.
10
was presented to the jury. The Appellant has made no effort to try to
show that any newer techniques might reasonably be expected to
produce different or more reliable or probative results.
Similarly, the Appellant has failed in his burden under Article
64.03. While he complains of the effectiveness of his counsel in what he
sees is a failure to contest the chain of custody of the evidence that was
tested, he has shown nothing concerning the custody of the samples
since. However, in the State's response to the motion the whereabouts
of those samples is established.
It its findings of fact, the trial court expressly found that the
Appellant did not show that identity was an issue in the case. It was not.
The victim identified the Appellant as the man who sexually assaulted
her, he had property taken from her purse at the time of the attack in his
room, and he gave a sample of his own DNA that matched that
recovered from the sexual organ of the victim. (See summary of
evidence in opinion on direct appeal. Smith at pgs. 1-3.). There was no
issue as to identity at the time of trial nor is there at the present.
The Appellant has failed to show by a preponderance of the
evidence that he would not have been convicted if DNA tests had been
conducted with exculpatory results. First, this is impossible since DNA
11
tests were conducted and the result were completely inculpatory.
Secondly, the victim's positive and unequivocal identification of the
Appellant as her attacker; his possession of her property taken from her
at the time of the assault by the perpetrator; and use of her cell phone
certainly negate the existence of identity as an issue.
It must be noted that the Appellant's pro se motions and brief on
appeal are confusing and are unclear as to exactly what he now wants
tested. The sample taken from him and from the victim's sexual organ
have been tested and found to match and are no way exculpatory. The
only other mentioned of DNA in the case was a sample the police took
early in the investigation from a schizophrenia sufferer known to
frequent the area, however, there was never a comparison done with
respect to that sample because police had quickly eliminated him as a
suspect. Even if the Appellant is requesting such testing, and assuming
those samples still exist, he has not shown that he would not have been
convicted if that test had been conducted and a match obtained. Again,
that would be impossible because the laboratory found DNA taken from
the victim's vagina only from the victim herself and DNA that matched
the Appellant. Furthermore, even if there had been a test showing DNA
from this third person that would not have indicated that the Appellant
12
would not have been convicted given the presence of his DNA in the
victim's sexual organ and the other evidence identifying him as the
attacker. There has been no showing that even a positive match with
the third person would exculpate the Appellant or raise the issue of
identity.
The Appellant has failed to show by a preponderance of the
evidence any of the statutory requirements for post-conviction DNA
testing.
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
fsf $an Q). 9rlmn
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
13
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State's Brief is in compliance with Rule 9
of the Texas Rules ofAppellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 1,886 words.
jsj $a6 £3. ffc/m,;
BOB D. ODOM
Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Ronny Gene Smith, Appellant pro se, by U.S. Mail,
addressed to him at: Ronny Gene Smith #1722493, Wayne Scott Unit
B-3-98, 6999 Retrieve Rd., Angleton, Tx 77515 on this 24th day of
November, 2015.
jsj $a6 £3. ffc/m,;
BOB D. ODOM
Assistant District Attorney
14
A. Signature
• Cc BRIEF- Ronny Gene Smith D Agent
• Prl COA # 03-15-00549 -CR 3verse X D Addressee
so
• Atl Cause # 67764 . .
___ _.. _. ___ ... J1lp1ece, B. Received by (Printed Name) C. Date of Delivery
or on the front if
1. Article Addressed to: D. Is delivery address different from Item 1? 0 Yes
Ronny Gene Smith If YES, enter delivery address below: D No
TDCJ # 1722493
Wayne Scott Unit B-3-98
6999 Retrieve Road
ANGLETON TX 77515
3. Service '!Ype 0 Priority MaB Express®
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