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
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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 

 

1Smith 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

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