### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00549- CR

Ronny Gene Sm ith, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 677 64, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ronny Gene Smit h was convicted of the offe nse of sexual assault and was sentenc ed
to six ty y ear s’ imprisonment. See Tex. Penal Code § 22.011(a) (setting out elements of offe nse), (f) (desc ribing o f

f e n s e level); see also id. § 12.42(d) (ele vating permissible punishment rang e for person

c o nv ic te d of felony who “has previously been finally convicted of two felony offe nses” se q u e n ti a ll y )

. The victim in that cas e, A. T

. , was vag inally penetr ated by an assailant, and the assailant took her purse, which contained her cell phone. See Smith v. State , No. 03-11-00427- CR, 2013 WL 363685,
at *1 (Tex. App.—Austin J an. 15, 2013, pet. ref ’d) (mem. op., not desig nated for publication). After being taken to a local hospital, A.T. was examined by a sexual-assault-nurse examiner, and the nurse took swabs of A.T.’s vag ina in an eff ort to collect DNA evidenc e. Id. The police later found Smit h in possession of A.T.’s phone, and he ag ree d to provide “a DNA sample by means of a chee k swab.” Id. DNA testing compa

ringSmit h’s voluntary

sample with the sample take n from A.T. “ matchedthem with a ‘reasona ble degr ee of scientific certa inty .’” Id. During the i nvestig ation, the “p o l ice also took a DNA sample fr o m J

. R.T., a person who suffe red from schizophrenia and was known
to fre quent the are a in which A.T. was at tacke d,” but “[t] he sample was never tested beca use police eliminated J .R.T. as a possible suspect.” Id. I n the trial, Smit h’s attorney communicated to the district court that Smit h wanted a continuance so that the sample from J .R.T. could be tested and

so that the sample taken from Smit h could be rete sted, but the di s t ri ct court denied the reque st. Id. at *2. On appe al, Smith urg ed, among other claims, that his trial attorney provided inef

fec tive assistance of counsel by “fa iling to move for independe nt rete sting of the DNA samples taken from [S mith] and J .R.T.” Id. at *3. After considering his issues on appea l, this Court overr uled them and aff irmed the district cour

t’s judgme nt of conviction. Id. at *3-6. Following this Co u rt ’s ruling , Smit h filed a pro se motion entitled “Motion Requesting For ensic Deoxy ribonucleic Act (‘DN A’) Testing .” I n the motion, Smit h asser ted that 1 he never rec eived the results of the fore nsic DNA testing that he voluntarily provided a sample for until the first day of trial, argued that he was not g iven the proper notice reg arding important events related to his trial o r re gar ding when his appointed counsel was chang ed, contende d that the

The c lerk’s r ecor d reve als that Smit h filed a motion requesting DNA testing , an af fidavit 1 in support of t hat m otion, and a motio n fo r t h e appointment of counsel to aid hi m in pursuing the relief that he was reque sting. I n response , the State filed a motion asking the district c ourt to de ny Smit h’s motions. After considering the parties’ arguments, the district court issued an order denying Smit h’s reque sts and containing various finding s of fac t. Fol lowing that ruling , Smit h filed an amende d mot i o n re q uesting DNA testing and an aff idavit, and the State simil arly filed a motion asking the district court to deny Smit h the rel i ef t h at h e was reque sting. After considering the amende d motion and the State’s re s p o n s e, t he dis trict court iss ued another order deny ing Smi th’s motion and containing various finding s of fac t. The notice of appea l in this case indicates that Smit h is appea ling the second order by the district court. Acc ording ly , we will limit our discussion to the motions forming the basis for the second ruling , but we also note tha t those motions are similar to the ones that we re f

iled prior to the first ruling

. 2appointment of his second trial attorney was “questionable ,” urg ed that his appointed counsel wa s

not prese nt during a cr

ucial pretrial hearing , and asserted that his appointed counsel was deficient for various rea sons. I n addition, Smit h argued in his motion that althoug h A.T. identified him as her attacke r at trial, she was not a ble to identify him in two photo lineups and instead identified J .R.T. in the first lineup. Fur

ther, Smit h asser

ted that J .R.T.’s biologica l sam p l e was never tested even though the police had it in their possession. I n addition, Smit h contende d that the results of the trial would have been differ ent if testing had been perf ormed on J .R.T.’s sample and if Smit h’s sample had been rete sted beca

use it would have destroy ed A.T.’s cre dibilit y . Finally , Smi t h u rged that various ruling s by the district c ourt harme d his a bility to pr esent a defe nse and that the State failed
to comply with an “a ffirmative duty to provide all evidenc e ‘ava ilable to the prosec ution team’ related t o documents reg arding ‘cha in of custody ’” for t he samples collecte d from him and J .R.T.

I n his aff idavit in support of his motion, Smit h repe ated many of his arguments from his motion, asser

ted that the State possesses “biolog ical materia l” that was either not previously subjected t o DN A t es ting or was tested but could now be tested “with newe r testing techniques,” and challeng ed the propriety of the manner in which his sample was labeled. Fur ther, Smit h asser

ted that his trial attorney should have challeng ed the ch ai n o f custody reg arding the sample that he voluntarily g ave to the police and should have filed “a motion for production of independe nt testing of” his sample a s well as the one obtained fr om J .R.T.

I n response , the State filed a motion urg ing the district c ourt to de ny the motion for DNA testing. See Tex. Code Crim. Proc. art. 64.02(a) (2). I n its motion, the State asser ted that the purpose of Smit h’s motion was to “cha lleng e the eff ectivene ss of his trial counsel, and the char acte r of the evidenc e introduced at his tria l.” Fur ther, the State urg ed that those ty pes of claims may not 3proper ly be pursued under the provisions of the Code of Criminal P ro ce d ure authorizing postconviction DNA testing. Relatedly , the State asser ted that Smit h d id not satisfy his burden of showing that he would not have been co n v i ct ed if exculpatory results had been obtained throug h DNA testing, that i d en t i ty was an issue in the case , and that the reque st for DNA testing was not made to dela

y execution of his sentence

. See id. art. 64.03. After revie wing the motions by the parties, the district court denied Smit h’s reque st for DN A testing and issued the f ollowing f

indings of f

act : 2

1. The defe ndant fails to establish by a preponde ranc e of the evidenc e that he would not be convicte d if furthe r DNAtesting pr oved exculpatory

. 2. There is stil l no issue of the def endant’ s identity

in this case. 3. There are no rea sonable g rounds for the defe ndant’s Motion to be filed.

Smit h appea ls the district c ourt’s order denying his motion. See id. art. 64.05. We will affirm the district c ourt’s orde r deny ing Smith’s reque st for DNAtesting.

I n its orig inal order denying Smit h’s first reque st for DNA testing, the district court issued 2 the following rele vant finding s of fa ct: 5. The victim testified at the trial and identified the defe ndant as her attacke r in court. 6. The known DNA profile extracted from [t he] chee k swab t h at t h e defe ndant voluntarily g ave to the po l i ce m at ched the DNA profile extracted from a vag inal swab take n from the victim with a re asonable deg ree of scientific cer tain[t ]y

. 7. The de fenda

nt does not establish that his identity was or is a

t issue in this case . 8. There is no showing that exculpatory test results would have preve nted the defe ndant from be ing c onvicted of this cr ime. 4GOVERN INGLAW AND STANDARD OF REVIEW Post-conviction DNA testing is g overne d by chapte r 64 of the Code of Criminal Procedur e. See Tex. Code Crim. Proc. arts. 64.01-.05. Chapter 64 “is simply a proce dural vehicle for obtaining evide nce ” to be used in a later habea s proce eding , In re Garcia , 363 S.W .3d 819, 822 (Tex. App.—Austin 2012, no pet.) (empha sis added) , “author izes DNA testing in case s in which the applicant meets the require ments enumer ated,” id. at 821-22 (empha sis added) (citing Tex

. Code Crim. Proc. art. 64.03), and allows appellate courts to revie w a trial court’s o rd er d en y i ng DNA testing, Tex. Code Crim. Proc. art. 64.05. “Howe ver, chapte r 64 is not an invitation to revie w ever y potential err or in the underlying trial proce eding s” and does not “c o n fe r jurisdiction on appellate
courts to consider ‘collater al att ac k s o n the t rial court’s judgme nt or t o revie w, under the guise of a DNAtesting a

ppeal, a ny thing be y ond the scope of those ar ticles.’” In re Garcia , 363 S.W .3d at 822 (quoting Rege r v. State , 222 S.W .3d 510, 513 (Tex. App.—For t Worth 2007, pet. ref’d)) ; see also Board of Pardons & Paroles ex rel. Keene v. C o u r t o f Appeals f

or Eighth Dist. , 910 S.W .2d 481, 483 (Tex. Crim. App. 1995) (explaining that court of criminal appea ls has complete jurisdiction

over post-conviction relief from final felony convictions under article 11.07 of Code of Crim i n al Procedur e); In re Briscoe , 230 S.W .3d 196, 196-97 (Tex

. App.—Houston [14t h Dist.] 2006, orig

. proce eding ) (stating that i n t er m ediate appellate courts have no jurisdiction over “post-convic tion writs of habe as cor

pus in felony

case s” under

article 11.07). A convicted person “may reque st fore nsic DNA testing only of evidenc e . . . that was

secur ed in relation to the offe nse that is the basis of the challeng ed con v i ct i o n an d was in the possession of the state during the trial of the offe ns e” b u t “wa s not previously subjected to DNA

5testing” or was previ o u s l y s u b j ec ted to testing but can now “be subjected to testing with newe r testing techniques that provide a r e a s o nable likelihood of results that are more acc urate and probative than the results of the previous test.” Tex. Code Crim. Proc. art. 64.01(b). Article 64.03 of the Code of Criminal Procedur e outlines the require ments that must be satisfied befor e DNA testing may be order ed. Id. art. 64.03. I n particula r, t he court must find that the evidence “s t i l l exis ts and is in a condition making DNA testing possible” and “has been subjected to a chain of custody sufficie nt to establish that it has not been substitut ed, tampere d with, repla ced, or altere d in any materia l respe ct” and that “identity was or is an issue in the case .” See id. art. 64.03(a) (1). I n addition, the “convic ted 3 person” must establish “by a preponde ranc e of the evidenc e that” he “would not have been convicted if exculpatory results had been obtained throug h DNA testing” and that “the reque st for the proposed DNA testing is not made to unrea s o nably delay the execution of sentenc e or administration of justice.” Id. art. 64.03(a )(2)

.

When revie wi n g a trial court’s decision reg arding DNA testing, appellate courts “def er to the tria l court’s de termination of historical facts, and its application of law to t he fa cts if it turns on cre dibilit y and demea nor, and revie w d e n o vo applications of law to the undisputed fac ts.” Caddie v. State , 176 S.W .3d 286, 289 (T ex . Ap p . — Hous ton [1st Dist.] 2004, pet. ref ’d). Howeve r, when, as here , the trial rec ord and the convicted person’ s aff idavit are the only source s of

The curr ent version of the statute also require s that the trial co u rt fi n d that “ther e is a 3 rea sonable likelihood that the evidenc e contains biologica l materia l suitable for DNA testing,” Tex. Code Crim. Proc. art. 64.03(a )(1) (B ), but that require ment was not contained in the version of the statute in eff

ect when Smit h filed his reque st, see Act of Apr. 3, 2001, 77th L eg ., R.S., ch. 2, § 2, art. 64.03, 2001 Tex. Gen. L aws 2, 3 (ame nded 2003, 2007, 2015) (cur rent version at Tex. Code Crim. Proc. ar t. 64.03(a))

. 6information supporting the motion, the trial court is in no better position than an appellate court in

making the deter

mination, a

nd acc ording ly , appellate courts revie w the issues de novo. See Sm ith v. Stat e , 165 S.W .3d 361, 363 (Tex. Crim. App. 2005) (expl aining that beca use t rial court did not hold live hear ing on r equest for DNA testing , appellate court should conduc t reviewde novo).

DISCUSSIO N On appea l, Smit h prese nts two issues challe n g in g th e district court’s order

. I n his first issue, Smit h asser

ts that the district court err ed b y fa i l i n g to g rant his motion for post-conviction DNA testing; howeve r, the entirety of his argument section for that issue alleg es that his trial counsel provided him with ineffe ctive assistance of counsel and lists particula r actions by his trial attorney that Smit h urg es denie d h i m d u e p roce ss. I n his second issue on appea l, Smit h argues that the district court er

red by failing to allow him “to conduct pretria l discovery and inspec tion of cer tain documents, cer

tain examination and test repor ts, and the content and bases of expert testimony upon which the g overnme nt intended to rely , prior to trial, as a pro se Def endant.” Fur

ther, he asser

ts in the argument portion of his second issue how those ruling s by the district court wer e wrong and how they prejudice d his ability to prese nt a proper defe nse. None of the arguments listed a bove perta in
to the elements t h at m u s t b e satisfied befor e a trial court may order DNA testing or fall within the scope of chapter 6 4 , and we do not have jurisdiction to consider those ty pes of claims in a chapte r 64 appea l beca

use we may not addre ss issues that exceed the scope of chapte r 64. See In re Garcia , 363 S.W .3d at 822; see also Nelson v. State , No. 03-12-00187- CR, 2014 WL 902497, at *1 (Tex. App.—Austin Marc h 5, 2014, no pet.) (mem. op., not desig nated for publication) (noting that appellant argued in reque st for DNA testing that his trial attorney provided ineffe ctive assistance of

7counsel, that trial judge was not impartial, and that State prese nted improper argument, deter mining that this Court did not have jurisdiction over those claims in chapte r 64 proce eding , and explaining that “we may not consider any claims that fall outside the scope of chapte r 64”). Moreove r, we note that this Court over ru l ed h i s previous appellate complaints alleg ing that he was denied eff ective assistance of co u nsel and that the district court err ed by deny ing “two motions for continuance made by his attorney s.” See Sm ith , 2013 WL 363685, at *1, *4, *6. I n the rema ining portion of the argument section of his second issue on appea l, Smit h

asser ts that the re ports from the DN A testing perf ormed for the t rial i n this case wer e problematic beca use they “did not disclose the chain of custody for the bucca l swabs [of Smit h and J .R.T.] provided to the

. . . lab for DNA testing,” did not provide an explanation for the delay s in transfe rring the swabs to the lab, and did not explain why J .R.T.’s swab was not tested. Fur ther, Smit h contends that if the swabs ha d been inde pendently tested, they would have show n “that ther e wa s a mistake with the chain of custody which could have led to [his] fre edom.” Although it is not e ntirely clea r that Smit h has prese nted a claim falling within the scope of chapte r 64 by prese nting what seem to be cha lleng es to the admis sion of evidence in the under ly ing pr ocee ding a nd althoug h Smit h does
not set out how rete sting his own DNA sample and testing J .R.T.’s sample could establish a chainof-c ustody problem with the evidenc e or exculpate him, we note that Smit h sug g ested in his motion seeking DNA testing, but not in his appellate brief, that i d en t i t y wa s an issue in the case , and the district court specific ally d et er m ined that identity was not an issue in the case . I n the interests of justice, we will c onstrue Smit h’s argument on appea l a s a claim that identity “wa s or is a n issue in the ca se.” See Tex. Code Crim. P roc. a rt. 64.03(a) (1)( C).

8“The identity require ment in Chapter 64 rela tes to the issue of identity as it perta ins

to the DNA evidenc e.” Prible v. State , 245 S.W .3d 466, 470 (Tex. Crim. App. 2008). Acc ording ly ,

a n in c a r c e r a te d p e r s o n “ c a

n ma k e id e n ti ty a

n is s u e b y s h o w in g D N A te s ts w o u ld p r o v e h is in n o c e n c e ” reg ardle ss of “the streng th of identification evidenc e at trial.” Cloud v. State , Nos. 05-13-01235- CR, -01237-CR, 2014 WL 1413818, at *2 (Tex. App.—Dallas Mar. 26, 2014, pet. ref ’d) (mem. op., not d e s ig n a te d f o r p u b li c a ti o n )

. “ H o w e v e r , if D N A te s ti n g w o u ld n o t d e te r mi n e th e id e n ti ty o f th e p e r s o n who committed the offe nse or would not exculpate the person convicted, then the require ments for D N A te s ti n g u

n d e r Ch a p te r 6 4 a r e n o t me t. ” S

im s v . S ta te , N o . 0 3

- 1 4

- 0 0 2 0 1

- CR , 2 0 1 4 WL 7 4 7 5 2 3 5 , at *3 (Te x . App.—Austin Dec

. 17, 2014, no pet.) (mem. op., not desig nated for publication). I f identity is not or was not an issue, a trial court cannot order DNA testing. Rege r , 222 S.W .3d at 514.

Be fore addre ssing the issue, we note as a preliminary matter that there appea rs to be

a proce dural hurdle to Smit h’s reque st to rete st the sample collecte d from him. Chapter 64 does allow for reque sts to rete st evidenc e that was p re v iously subjected to DNA testing but only in ci rc umstances wher e the evidenc e “ca n be subjected to testing with newe r testing techniques that p rovide a rea sonable likelihood of results that are more acc urate and probative than the results o f the previous test.” Tex. Code Crim. Proc. art. 64.01(b)( 2). Although Smit h acknow ledg es that his sample was tested and althoug h he mentioned briefly in his a ffidavit acc ompanying his reque st for DNA testing that new techniques could be utiliz ed, a convicted person must provide statements of fac t supporting his claim that the evidenc e can be subjected to testing with newe r techniques that will provide a rea sonable likelihoo d o f mor e acc urate and probative results, and the convicted person may not simply rely on g ener al and conclusory statements. See Padilla v. State , Nos. 03-12-00299- CR,

9-00300-CR, -00301-CR, 2013 WL 3185896, at *5 (Tex. App.—Austin J une 20, 2013, pet. ref ’d) (mem. o p . , n o t desig nated for publication); see also Mede aris v. State , No. 03-12-00698- CR, 2013 WL 4822944, at *3 (Tex. App.—Austin Aug

. 30, 2013, no pet.) (mem. op., not desig nated for publication) (noting that fac t that samples had alre ady been tested prese nts “proc edura l problem” to reque st for testing beca

use chapte r 64 applies to evidenc e that has not been previously tested or that

can be subjected to new t esting techniques providing acc urate and probative results and beca use motion seeking testing acknow ledg ed that testing had alre ady occur red but did not “pre sent any argument about newe r testing techniques” ). Ac cording ly , it appea rs t hat S mith may not have laid the prope r foundation for re questing the re testing of his DNA sample. Turning to Smit h’s arguments, he urg ed in his motion that A.T. was unable to identify him as the assailant and instead identified J .R.T. in a photo lineup. Reg arding the lineups, Detec tive Tammy Br ace well testified during the trial that afte r Smit h was identified as a suspect, she showed A.T. a photo lineup with S m i t h i n i t and that A.T. was not able to pick out her attacke r from that lineup. I n addition, Detec tive Br ace well rela ted that befor e Smi t h was a suspect in the case , she asked A.T. to look at a photo lineup that included J .R.T. as well as five other men but did not include Smit h. When descr ibing A.T.’s rea ction to the lineup, Detect i v e Br ace well explained that A.T. related that she “d[id] n’t know” if the assailant was in the lineup but that if she had to pick someone, J .R.T. looked the most like the person that she reme mbere d from the assault beca use of his dark skin and hairline. Howeve r, Detec tive Br ace well clar ified that A.T. did not make a positive identification of J.R .T. as the a ssailant.

Moreove r, in her testimony during the trial, A.T. identified Smit h as her attacke r. I n particula r, althoug h A.T. admitted that it was “ver y dark” when the attack happene d and that she did 10not g et a g ood look at t he man, she d es cribe d her assailant as an Afric an-A merica n man who was taller than she was and identified Smit h as the man that she believed attacke d her. I n addition, she explained that she could identify Smit h as her attacke r, in part, beca use his ear s are distinctively big and “stick out” and beca

use she was a

ble to see that part of her attacke r’s head during the assault. Fur ther, A.T. e x plained that her attacke r stole per sonal items from her , including he r ce ll phone. After A.T. identif

i ed S m ith as her attacke r, Br andy Hende rickson, who was a coworke r of Smit h’s and was sharing a hotel with Smit h on the night in question, testified that Smit h told her that night that “he was so horny that he was seeing blurry ” and neede d to f ind a g irlfriend, that he lef t the hotel room shortly there afte r, and that when he returne d the following morning , he had a new cell phone with him. That phone was seiz ed b y t he poli ce when they went to the hot el room as par

t of their investig ation and wa s later shown to be long to A.T

. Moreove r, evidenc e was prese nted establishing that a biologica l sample taken from A.T.’s vag ina matched the DNA profile from the sample that Smit h provided. Cf. Blackloc k v. State , 235 S.W .3d 231, 232 (Tex. Crim. App. 2007) (conc luding that in ca s e wh er e DNA testing had alre ady been done for trial but was inconclusi ve o n i s s u e of identity and wher e convicted person soug ht testing of biologica l evidenc e left by single assailant, “exculpatory test resu l ts, excluding [Blacklock] as the donor of this materia l, would est ab l i sh [hi s] innocenc e” beca use his motion “alleg ed” and “show[ed] by a preponde ranc e of the evidenc e[] that the victim’s lone attacke r is the donor of the materia l for which [he] seeks DNA testing” ). Specifica l l y , t h e fo rensic analy st who tested the samples, Serena Z boril, testified that she found “[a] single source DNA profile” for sperm from the sample taken from A.T.’s vag ina, meaning that there was onl y DN A fr o m one person’ s

11sperm. Moreove r, she explained that the profile from the sample was consistent with Smit h’s, that

Smit h could not b e excluded as a contributor, that “[t] he probability of selec ting an unrela ted [] person at random who could be the source of this DNA profile is about” one in 5.464 quintill ion for Afric an Americ ans, and that “[t] o a rea sonable deg ree of scientific cer tainty ,” Smit h was “the source of this sperm fra ction of the vag inal swabs.” Moreove r, she rela ted that she did not need to test any other samples beca

use she “only found a single source profile i n [ t h e] sperm fra ction” and that profile matc hed Smith’s.

I n addition, Smit h has failed to explain and nothing in the rec ord shows how his DNA profile could match that of the sam p l e collecte d from A.T. other than throug h sexual intercour se. To the extent that Smit h is sug g esting that identity could have been an issue beca use of the alleg ed absenc e of a chain of cust ody or t he potential for contamination betwee n his sample and J .R.T.’s,

we note that evidenc e co n ce rn i n g both topics was prese nted during the trial. See Sereal v. State , No. 01-09-00192- CR, 2011 WL 1234739, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet.

r e f ’ d ) ( me m. o p . , n o t d e s ig

n a te d f o r p u b li c a ti o n ) ( e xp la in in g th a

t c h a in o f c u s to d

y ma y b e e s ta b li s h e d “throug h witness testimony ”). I n particula r, Offic er Steve Ermis testified that he was the one who took the sample from Smit h by swabbing the inside of Smit h’s chee k; that he place d the swab in the orig inal packa g ing; that he seale d th e packa g ing in an evidenc e envelope ; that he wrote the case number, his badg e number, and the date on the envelope ; and that he place d the envelope in a locked storag e locker unt il he was able to take it to the evidence technician. Rega rding the s ample taken from J .R.T., Detec tive Br ace well explained that she was prese nt when an o ther office r took the sample from him. Fur

ther, she explained that the sample taken from Smit h and the sample taken

12from J .R.T. wer e obtained by differ ent police office rs, that the samples wer e taken on separ ate day s,

and that the samples were stored in diffe rent locations.

After the office rs conclude d their testimonies, the evidenc e intake technicia n for the Temple Police De partment, Monna H err ing, testified reg arding how the var ious ty pes of e vidence in this case wer e identified and stored. Specifica lly , Her ring explained that in g ener al she rec eives all piece s of evidenc e that the var ious office rs collec t, verifies the m, labels them, and store s them. Moreove r, she related that she rec eived from Offic er Ermis the biologica l sample that he took from Smit h, that she labeled the sample as swabs taken from the “suspec t,” and that she stored the sample until she transfe rre d it to the l ab for testing. Reg arding the sample obtained from J .R.T., Her ring explained that she rec eived that sample later from Detec tive Br ace well, and Her ring rela ted that she labeled the sample as swa bs from J.R .T. She also explained that she t ook both samples t o the lab for testing but that she took the sample from Smit h first and the sample from J .R.T. approximately
two months later. I n her testimony , Her ring emp h as i z ed that she would not have mislabeled the samples or exchang ed them, that there was zero chanc e that she took the wrong sample to be tested,

a n d th a t th e s a mp le s w e r e s to r e d s e p a

r a te ly

. Si mi la

r ly , Z b o r il e xp la in e d th a

t w h e n s h e w a s p e r f

o r mi n g testing on the sample obtained from Smit h, th ere was no potential for contamination betwee n the sample taken from Smit h and the one taken from J .R.T. beca use she did not open or test the sample from J.R .T. For all of these rea son s , we must conclude that the district court did not err by deter mining that identity

is not an issue in this ca se and, ther efor e, by denying Smith’s reque st for DNA testing . Acc ording ly , we ove rrule Smith’s two issues on appea l.

13CONCLUSION Having overr

uled both of Smit h’s issues on appea l, we aff irm t he district court’s order denying Smith’s reque st for DNAtesting.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: June 10, 2016 Do Not Publish

14