                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-16-00095-CR



                                 LEE VERT SMITH, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                             On Appeal from the 5th District Court
                                    Bowie County, Texas
                                Trial Court No. 06-F0743-005




                        Before Morriss, C.J., Moseley and Carter,* JJ.
                        Memorandum Opinion by Chief Justice Morriss



________________________

*Jack Carter, Justice, Retired, Sitting by Assignment
                                   MEMORANDUM OPINION
        In 2008, Lee Vert Smith pled guilty to and was convicted of aggravated sexual assault of a

child. Pursuant to a plea agreement, Smith was sentenced to twenty-five years’ imprisonment. In

February 2016, Smith filed a post-conviction motion for DNA testing of evidence gathered during

the victim’s examination by a Sexual Assault Nurse Examiner (SANE). In response, the State

denied that any evidence was gathered during the SANE examination. The trial court denied

Smith’s motion, prompting this appeal.1

        “We review a trial court’s denial of a motion for post-conviction DNA testing under a

bifurcated process.” Watkins v. State, 155 S.W.3d 631, 633 (Tex. App.—Texarkana 2005, no pet.)

(citing Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955

S.W.2d 85 (Tex. Crim. App. 1997))). “We afford almost total deference both to the trial court’s

determination of historical fact and to its application of law-to-fact issues that turn on credibility

and demeanor.” Id. (citing Rivera, 89 S.W.3d at 59; Green, 100 S.W.3d at 344). “But we review

de novo all other application[-]of[-]law-to-fact issues.” Id. (citing Rivera, 89 S.W.3d at 59; Green,

100 S.W.3d at 344).

        Motions for post-conviction DNA testing are subject to the requirements of Article

64.03(a), which authorizes forensic DNA testing only if the court finds that the evidence “still

exists and is in a condition making DNA testing possible.” TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(A)(i) (West Supp. 2016). In support of its response to Smith’s motion, the State



1
 Smith was convicted of another count of aggravated sexual assault of a child in companion cause number 06-16-
00096-CR, and he appeals the denial of an identical motion for DNA testing filed in that case.

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attached the affidavit of Sara Tacker, a custodian for the Texarkana Texas Police Department

(TTPD), in which she averred that the TTPD was “never in possession of any evidence relating

to” Smith’s case.

         On appeal, Smith does not contest the State’s position that the SANE examination

produced no evidence that can be tested.2 “Affidavit testimony from a relevant witness that no

biological evidence from the case is maintained or possessed is sufficient, absent any contrary

evidence, to support denial of a motion for forensic DNA testing.” Lewis v. State, 191 S.W.3d

225, 228 (Tex. App.—San Antonio 2005, pet. ref’d) (citing Shannon v. State, 116 S.W.3d 52, 55

(Tex. Crim. App. 2003)). We conclude that the response filed by the State was sufficient to enable

the trial court to determine that no evidence still exists for DNA testing, and, thus, that the trial

court did not err in overruling Smith’s motion for DNA testing.




2
 Instead, Smith now requests testing of items of clothing, a thong, and a silk robe contained in the TTPD’s property
records. From our record, it is unclear whether these items of clothing belonged to the victim or Smith’s girlfriend,
but it appears that Smith “walked around the apartment wearing” the thong and the silk robe. In any event, Smith’s
motion for DNA testing did not request testing of these items, and the trial court has not ruled on such a request.
          Citing to Smith v. State, 165 S.W.3d 361, 365 (Tex. Crim. App. 2005), Smith argues that he was not required
to request DNA testing of the clothing in order to preserve error on appeal because his motion for DNA testing also
contained an actual innocence claim. The Smith case does not support Smith’s argument. Once a defendant meets
the threshold requirement of demonstrating that an item he wants tested exists under Article 64.03(a)(1), Article
64.03(a)(2) also requires him to show, by a preponderance of the evidence, that he “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) (West
Supp. 2016). The court of appeals’ decision in Smith determined that the defendant did not bring forth sufficient facts
to meet the Article 64.03(a)(2) requirement, even though his motion for DNA testing stated that he was actually
innocent. In reversing the court of appeals, the Texas Court of Criminal Appeals held in Smith that a plea of actual
innocence in a pro se motion for DNA testing is “equivalent to an assertion that there is at least a 51% chance that [the
defendant] would not have been convicted,” and is sufficient to meet the requirements of Article 64.03(a)(2). Smith,
165 S.W.3d at 365. Smith does not absolve a defendant from asking the trial court for DNA testing of certain items
before he can complain on appeal that the items were not tested.
          A point of error on appeal must complain of a ruling by the trial court. Because the trial court has not had an
opportunity to determine whether DNA testing of the clothing is required, we do not address Smith’s complaint at this
juncture. See TEX. R. APP. P. 33.1.
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      We affirm the trial court’s denial of Smith’s motion for DNA testing.




                                           Josh R. Morriss, III
                                           Chief Justice

Date Submitted:     November 22, 2016
Date Decided:       December 9, 2016

Do Not Publish




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