Ronny Gene Smith v. State

Opinion

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.

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.

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,

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.

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

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