Lee Vert Smith v. State
06-16-00095-CR
| Tex. App. | Dec 9, 2016Background
- In 2008, Lee Vert Smith pled guilty to aggravated sexual assault of a child and received a 25-year sentence under a plea agreement.
- In February 2016 Smith filed a post-conviction motion under Tex. Code Crim. Proc. art. 64 seeking DNA testing of evidence from the SANE (Sexual Assault Nurse Examiner) examination.
- The State responded that no evidence from the SANE examination exists; it attached an affidavit from the Texarkana PD custodian stating the department never possessed any evidence related to the case.
- The trial court denied Smith’s motion for DNA testing; Smith appealed the denial.
- On appeal Smith did not dispute the State’s position that no SANE evidence exists; he instead sought testing of certain clothing items listed in police property records but had not requested testing of those items in the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying post-conviction DNA testing under Art. 64.03 when the State says no evidence exists | Smith sought DNA testing of SANE evidence; alternatively points to clothing in property records he wants tested | State asserted via affidavit that no biological evidence from the SANE exam is maintained or possessed by TTPD | Trial court did not err: the State’s affidavit was sufficient to show no evidence exists for testing, so motion denial affirmed |
| Whether Smith can raise on appeal an unrequested request to test clothing in TTPD property records | Smith contends actual-innocence claim allows appellate complaint about unrequested testing of clothing | State/record: Smith never asked the trial court to test those items; trial court never ruled on them | Court declined to address testing of clothing because Smith did not request testing below; preserved error not met |
Key Cases Cited
- Watkins v. State, 155 S.W.3d 631 (discusses standard of review for denial of post-conviction DNA testing)
- Rivera v. State, 89 S.W.3d 55 (explains bifurcated review and deference to trial court fact findings)
- Guzman v. State, 955 S.W.2d 85 (authority on appellate review principles cited in Rivera)
- Lewis v. State, 191 S.W.3d 225 (affidavit that no evidence is maintained can support denial of DNA testing)
- Shannon v. State, 116 S.W.3d 52 (same principle: custodial affidavit sufficient absent contrary evidence)
- Smith v. State, 165 S.W.3d 361 (addresses sufficiency of an actual-innocence assertion in an Art. 64 motion)
Disposition
The court affirmed the trial court’s denial of Smith’s motion for DNA testing of SANE-derived evidence; it refused to reach Smith’s unraised request to test clothing items because the trial court had not been given the opportunity to rule on that request.