                                                                             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®
                                                                                                               0 Adult Slgnatur8                        0 Registered Mall""
                                                    1111111111111111111111111111111111111111111111             0 Adult Signature Restricted Delivery    0 ~ered MaD Restr1cted
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                                                      9590 9403 01 88 5 120 630 1 86                        0 Certlfled Mal Resll1ated Delivery         • Ratum Receipt l'ar
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                                             -;::---;~-:--::---:--;;:----:;--:-----:-..,......,---:------lj 0 Collect on Delivery
                                               2. Article Number (Transfer from service label)                 0 Collect on Delivery Resb1cted Delivery 0 Signature ConftnnaUon""
                                                                                                               0 Insured Mall                           0 Signature Conflnnatlon
                                                                                                                              Reab1cted Delivery          Restricted OeUvery


                                              PS Form    3811, April2015 PSN 753D-02-000-9053                                                          Domestic Return Receipt




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