Smith v. State

Full title: JAY DEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 8, 2009

No. 01-06-00416-CR (Tex. App. Oct. 8, 2009)

Opinion

No. 01-06-00416-CR

Opinion issued October 8, 2009. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).

On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 428041.

Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

In 1985, appellant, Jay Dee Smith, pleaded guilty, without an agreed punishment recommendation from the State, to the offense of aggravated sexual assault. At a subsequent sentencing hearing, the trial court assessed punishment at eighty years' confinement. This Court affirmed appellant's conviction. See Smith v. State, No. 01-86-00076-CR, 1986 WL 11166 (Tex. App.-Houston [1st Dist.] Oct. 9, 1986, no pet.) (not designated for publication). In 2004, appellant filed a motion for post-conviction DNA testing, which the trial court denied for reasons reflected in its findings of fact and conclusions of law. In his sole point of error, appellant contends that the trial court erred in denying his motion for post-conviction DNA testing based on its finding that identity had not been an issue in the case. We affirm.

BACKGROUND

Appellant pleaded guilty, without an agreed punishment recommendation from the State, to the aggravated sexual assault of Rhonda Haight by penetrating her female organ. Appellant waived a record at the plea proceeding. At the subsequent punishment hearing, a record was made, but little from that record was admitted at the hearing on appellant's post-conviction motion. However, from our earlier opinion (which the trial court noted summarily in its findings of fact), we know that the evidence admitted at punishment included

appellant's testimony that he had found the complainant floating in a pool, already dead, and that he had dragged her body away and sexually abused it in various ways and testimony from the medical examiner that the complainant had not died from drowning, but instead from strangling, and that the injuries to her body were made while she was alive.

Id. at *2-3. We noted that "[t]he appellant's defensive theory, which was argued by counsel at the sentencing hearing, but not at the plea hearing, was that he performed the sexual assault on a corpse. . . ." Id. at *3 (emphasis added). In January 2004, appellant filed a pro se motion for DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(a). In denying the motion, the trial court made the following relevant findings of fact:

8. The Court finds, based on the exhibits submitted pursuant to the applicant's motion, that the applicant admitted to sexually assaulting . . . the complainant. . . .

9. The Court finds, based on the exhibits submitted pursuant to the applicant's motion for post-conviction DNA testing, that the defendant fails to show that identity was or is an issue in the instant case. . . .

. . .

11. The Court, based on the applicant's failure to meet the requirement of art. 64.03(a)(1), finds in the negative the issues listed in art. 64.03(a)(1).

12. The Court finds that the applicant fails to meet the requirement of Tex. Code Crim. Proc. art. 64.03(a)(2), concerning his burden of proof.

The trial court entered one conclusion of law: "The Court, based on its negative finding of the issues listed in art. 64.03(a)(1) and its finding that the applicant failed to meet the requirements of 64.03(a)(2), DENIES the applicant's request for DNA testing."

DENIAL OF POST-CONVICTION DNA TESTING

In a single point of error, appellant contends that "[t]he trial court erred in finding . . . that the appellant admitted the charged offense" and thus that identity was not an issue in the case.

A. Standard of Review

We review a convicting court's denial of post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). "Reviewing courts defer to a trial judge's findings of fact when they are supported by the record." Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009). "They also defer to a trial judge's application of law to fact questions when those questions turn on credibility and demeanor." Id. "Finally, pure legal issues are given a de novo review by appellate courts." Id.

B. Governing Law

Texas Code of Criminal Procedure article 64.03 provides, in pertinent part, that "[a] convicting court may order forensic DNA testing under this chapter only if: . . . the court finds that: . . . identity was or is an issue in the case. . . ." Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon 2006).

C. Discussion

Appellant contends (1) that the statute precludes relying solely on his guilty plea to find that identity was not in issue;¹ (2) that two statements that he gave to police indicate only that he attempted penetration, not that it actually occurred; and (3) that the sexual contact that he had with Haight's body occurred after she was dead, so that his offense was abuse of a corpse, not aggravated sexual assault. Appellant's statements, like his arguments here and at his punishment hearing, show that he at least attempted vaginal intercourse with Haight, but that she was dead at the time. This does not place identity at issue because it does not deny that appellant was the assailant: rather, it concerns whether he committed sexual assault or merely attempted it and whether Haight was alive at the time. The record thus supports the trial court's ruling that appellant failed to show that identity was an issue in the case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). We thus hold that the trial court did not err in overruling appellant's motion for post-conviction DNA testing. See id. art. 64.03(a)(1)-(2) (providing that cited requirements are in conjunctive, not disjunctive). We overrule appellant's sole issue.

CONCLUSION

We affirm the order of the trial court.