Opinion
No. 05-02-01411-CR.
Opinion filed February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F86-90792-Ul. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
Billy James Smith appeals the trial court's order denying his motion for post-conviction forensic DNA testing. In a single point of error, Smith argues the trial court erred in denying his chapter 64 DNA motion because a reasonable probability exists that DNA tests would prove his innocence. We overrule his point of error and affirm the trial court's order. In 1986, a jury convicted Smith of the aggravated sexual assault of S.B. while using and exhibiting a deadly weapon, a knife. The jury assessed a life sentence. In 1988, this Court affirmed Smith's conviction. See Smith v. State, No. 05-87-00191-CR (Tex.App.-Dallas Jan. 26, 1988, no pet.) (not designated for publication). In December 2001, Smith filed a motion for forensic DNA testing of evidence, supported by his affidavit. In his motion, Smith requested the trial court find "that movant has proven by a preponderance of the evidence that a reasonable probability exists that movant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." In his affidavit, Smith stated he was not guilty of the offense of aggravated sexual assault and that he believed the district attorney had "information and evidence that will establish that [he was] actually innocent" of the offense. However, Smith's affidavit did not contain any statement of fact tending to show that he would not have been prosecuted or convicted if DNA test results favorable to him had been obtained prior to his trial. Neither did Smith present any such evidence when the trial court heard his motion. The trial court took judicial notice of the record of Smith's trial and denied Smith's motion. In its order, the trial court specifically found that "the sworn affidavit attached to Smith's motion fails to allege specific facts supporting his motion for DNA testing" and that "Smith's motion fails to establish by a preponderance of the evidence that exculpatory DNA tests would prove his innocence." This appeal followed. In 2001, the legislature enacted chapter 64 of the code of criminal procedure, which governs motions for forensic DNA testing. Several requirements must be met to obtain DNA testing under chapter 64. However, only one of the requirements is disputed in this case. Specifically, we must determine if Smith met his burden to establish by a preponderance of the evidence that he "would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3, amended by Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16, 16 (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2004)). A trial court is never required to grant a convicted person's request for testing absent a showing pursuant to article 64.03(a)(2)(A). Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim.App. 2002). This provision requires a convicted person to show that a reasonable probability exists that exculpatory DNA tests would prove his innocence. Whitaker v. State, No. 74,612, slip op. at 5, 2004 WL 63981 (Tex.Crim.App. Jan. 14, 2004); Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002). In other words, DNA testing must conclusively outweigh all other evidence of guilt. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002); Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We review de novo the trial court's decision on this article 64.03(a)(2)(A) requirement. Whitaker, slip op. at 5; Rivera, 89 S.W.3d at 59. On appeal, Smith argues that, if the samples taken from S.B. and contained in a rape kit were tested and Smith were eliminated as the source of the sperm, Smith's guilt would be eliminated. According to Smith, there was testimony at the trial that the seminal fluid taken from S.B. indicated she had sexual intercourse within the twenty-four hours preceding the offense, but nothing in the record indicated that S.B. had intercourse with anyone other than her attacker during the twenty-four-hour period. Smith reasons that the source of the seminal fluid must be the man who raped S.B. However, these arguments and factual allegations were not made in the trial court. In his motion and affidavit, Smith argued only that he was innocent. Absent any factual allegations that, if true, would support the showing required by article 64.03(a)(2)(A), we cannot say that the trial court erred in denying Smith's motion for forensic DNA testing. See Watson v. State, 96 S.W.3d 497, 499 (Tex.App.-Amarillo 2002, pet. ref'd) (appellant called witness at hearing on motion, who offered no evidence as to article 64.03(a)(2)(A) requirement); In re Fain, 83 S.W.3d 885, 889 n. 4 (Tex.App.-Austin 2002, no pet.) (appellant's sworn motion did not contain factual allegations to demonstrate article 64.03(a)(2)(A) requirement); In re McBride, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (appellant's affidavit accompanying motion did not contain any statement of fact to show article 64.03(a)(2)(A) requirement). Accordingly, we overrule Smith's single point of error. We affirm the trial court's order denying Smith's motion for post-conviction forensic DNA testing.