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Click here for the full text of this decision FACTS:The appellant was convicted of aggravated rape in 1987 and the jury assessed a life sentence. In 2001, he filed a pro se motion for forensic DNA testing under Texas Code of Criminal Procedure Chapter 64 and requested that counsel be appointed to represent him. Counsel was appointed and a formal motion for forensic DNA testing was filed, accompanied by an affidavit by Smith stating that he is actually innocent of the offense for which he was convicted. The trial court denied the motion, stating that the motion failed to include an affidavit alleging specific facts in support of his motion and failed to establish by a preponderance of the evidence that exculpatory DNA tests would prove his innocence. The appellant’s request that the trial court take judicial notice of the record was granted. The court of appeals affirmed the trial court’s denial of DNA testing. The appellant filed a pro se petition for discretionary review stating that his claim of actual innocence in his motion and affidavit was the equivalent of asserting that he would not have been tried or convicted if favorable DNA results were obtained. HOLDING:The cause is remanded to the trial court to order DNA testing under Article 64.03(c). The state argued that because the victim lived with her boyfriend, it is possible that she had intercourse with him in the 24 hours preceding the attack and that it was his seminal fluid that was found during the exam and not the attackers. The state argued that a test indicating that Smith’s DNA does not match the seminal fluid would not be exculpatory because perhaps no seminal fluid was left at the time of the attack. Trial testimony by the victim indicated that seminal fluid was left by the attacker. This rebuts the state’s argument that even if the DNA does not match Smith, he could still be guilty because the attacker may not have left behind any seminal fluid. Additionally, although the issue was discussed at trial, there was no testimony in the record indicating that the victim had intercourse with anyone other than her attacker within 24 hours of the rape exam. The evidence that the attacker did leave seminal fluid at the time of the attack, combined with the lack of any evidence that the victim had intercourse with anyone other than her attacker during the 24 hours preceding the exam indicated that the seminal fluid belongs to the attacker. Results indicating that Smith’s DNA does not match the seminal fluid would be exculpatory, the court determines. Because Appellant argued only that he was innocent, the trial court and the court of appeals held that there were not sufficient facts supporting the motion. Innocence is a contested fact that was raised by the appellant in support of his motion for DNA testing. The court of appeals failed to consider the fact that the trial judge took judicial notice of the trial record which did contain facts supporting the motion, the court holds. The appellant arguably should have included in his affidavit supporting additional statements. However, the plea of actual innocence in this pro se motion is equivalent to an assertion that there is at least a 51 percent chance that he would not have been convicted. The trial record, which the trial court took judicial notice of, contained the additional facts. Therefore, the trial court had enough evidence in front of it to determine, by a preponderance of the evidence, that the appellant would not have been convicted if the DNA results were favorable. As such, this motion meets the requirements of Chapter 64 and Appellant is entitled to DNA testing, the court concludes. OPINION:Meyers, J., delivered the opinion of the unanimous court.

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