AUSTIN (KXAN) — The victim of a violent kidnapping and sexual assault from 2008 is still seeking justice after the Austin Police Department’s DNA lab mishandled the evidence in her case.

The victim, identified by the pseudonym Amy Smith, refuses to be silent anymore. In an exclusive interview with KXAN’s Sally Hernandez, Smith says she wants people to know she is not just a case number.

In 2016, APD’s DNA lab was the subject of a three-day onsite audit by The Texas Forensic Science Commission to investigate questionable practices within the lab. At the request of the Travis County District Attorney’s Office, the forensic team was also asked to examine the lab’s puzzling DNA results in a 2008 kidnapping and rape of a University of Texas student. At the time of the audit, the suspect in the attack had yet to go to trial. The case had troubled prosecutors from the beginning. Police records show DNA evidence played a key role in the investigation, as it often does in sexual assaults when the victim doesn’t know the attacker. It’s argued such forensic evidence can either make or break a criminal case. In this case, a KXAN Investigation revealed it did both.

The audit determined some of the DNA evidence in Smith’s case was likely cross-contaminated. The finding and subsequent questions of whether contaminated DNA played a role in other criminal cases led to the swift closure of APD’s DNA lab less than a week after the audit was complete. In a nearly 400-page report, the Texas Forensic Science Commission outlined a string of major problems such as that the lab did not have enough properly trained staff and that it was not up to date on standard protocols.

‘I didn’t know if I was going to live.

With the dual review underway into APD’s DNA lab past forensic findings and practices, the sexual assault survivor whose case helped shut it down will likely never see her attacker go on trial in Travis County, mainly because the contaminated DNA evidence created a nearly 10-year delay in the case being prosecuted.

In a disturbing twist, while out on bond in Smith’s case, the suspect is accused of sexually assaulting two other people in the Houston area. He is once again out on bond awaiting trial for one of the two sexual assault cases against him in Harris County.

Travis County District Attorney Margaret Moore says she decided to drop all the charges against the suspect in Smith’s case in October 2017 after learning of the charges in Harris County. “You got to look at the best case you got pending, whether it’s in this county or another,” Moore explains.

While Amy Smith is not her real name, Smith says she’s a real person who was really kidnapped and raped and the real forensic fallout has left her feeling violated all over again. “I feel like they disregarded me as a person, as a human being,” she says.

Today, Smith is a wife and mother, but she’s also a survivor.

“I really, really hoped that these people that you trusted to seek justice, that they would come through, and they never did.” She’s traumatized by a brutal attack and betrayed, she says, by the justice system.

In 2008, Smith was an engineering major at the University of Texas in Austin. She loved the lure of the Live Music Capital of the World and the vibe of a big city compared to her small, quiet hometown.

On Oct. 8, 2008, Smith was partying on Sixth Street with friends. “It was like any other night. I was going out with a group of friends. You don’t wake up thinking something so horrible is going to happen to you,” she says.

As the bars closed around 2:30 a.m., Smith walked to grab a cab by herself. She said she was walking towards Fourth Street when a black man with dreadlocks started harassing her out of the window of a white car. Smith said she ignored him and continued walking but the man was persistent. Before she knew, Smith says he got out of his car, threw her in the backseat and drove away. “It was a whirlwind — all of a sudden I was in the back of a car. Most of it is blurry now. What stays with you is how you react. I remember screaming a lot.”

Smith told police the doors would not unlock from inside the backseat. Unable to escape, Smith says her attacker turned up the radio to drown out her screams as he drove to a hotel and raped her. Smith remembers the hotel had a red sign out front and it was located off of Interstate 35. “I remember thinking, I didn’t know if I was going to live.”

When the sexual assault was over, Smith says her attacker put her back in the car, this time in the front seat. “He agreed to drive me somewhere, but he wouldn’t tell me where.” At a red light at St. Johns Avenue, Smith made the decision to escape. “I remember running. I remember thinking I had to get out of there and I ran as fast as I could and I hid.” She hid in nearby bushes waiting for the light to turn green and her attacker to drive away. After a few minutes, Smith jumped out and started banging on the windows of stopped cars at the intersection begging for help. “I needed to find somebody. I tried to flag anybody down. I remember jumping in front of cars.” A driver finally stopped and took her to a nearby hospital.

At the hospital, Smith was given a sexual assault forensic exam that collected intimate DNA samples for a rape kit to be sent to the APD’s DNA lab for analysis. Meanwhile, Austin police took Smith’s rape report. Smith described her attacker as a “heavy set, black man with dreadlocks driving a white vehicle possibly a Dodge Charger or Chrysler 300,” according to police records.

A BOLO (be on the lookout) was blasted to police on patrol describing the suspected rapist and his vehicle. A short time later, officers spotted a vehicle matching the description parked in front of a hotel on I-35. The vehicle was connected to a Hispanic man in one of the hotel rooms. Court records show when police questioned the man, they saw blood-stained sheets on his hotel bed. The man told police it was from consensual sex with a woman named Erica, but she was no longer in the room and he couldn’t give any other information about her to corroborate his story.

Even though the Hispanic man didn’t match Smith’s description of her attacker, the detective asked and got a sample of the Hispanic man’s DNA to test his story. The blood-stained sheets in the hotel room were also collected for evidence. Since the Hispanic man didn’t match the attacker’s description and because “no evidence was located linking him to the crime, he was released” and not arrested, according to police records. The documents also show detectives asked Smith to tell them if her DNA was going to be found on the Hispanic man and she said it should not be located on him.

Four months after the attack, on Feb. 4, 2009, the DNA results from the evidence collected came back from the lab. From the Hispanic man’s sample, the analyst found a three DNA mixture: the Hispanic man, an unknown woman and Smith’s DNA. The critical results by the APD DNA lab would essentially implicate the Hispanic man as a person of interest in Smith’s attack.

‘I’m extremely angry at the people who were supposed to help get me justice.’

Court records show prosecutors were highly skeptical of the lab’s findings since they did not add up to the description of Smith’s attacker. When KXAN checked if the DA’s Office filed a complaint or asked the lab to retest the Hispanic man’s sample, we found no such written documentation.

At the time of the investigation, police had no idea the forensic evidence was likely contaminated creating a cloud of suspicion. They could not explain the lab’s DNA results but neither could Smith. Even though she told police it was impossible for her DNA to be on the Hispanic man, Smith says police began to question if she were telling the truth. “They continued to ask if I had been with somebody else or if I had a boyfriend, if he was Hispanic. I was extremely angry. It finally got to the point where I yelled at the detective that I was gay. Up until that point I didn’t feel I needed to explain my sexuality, but I felt that validated why I didn’t have a boyfriend and why that would never happen.”

Smith’s rape kit showed a two-person DNA mixture: Smith’s DNA and that of an unknown man. When the unknown man’s DNA profile was entered into CODIS (Combined DNA Index System) it didn’t come back to the Hispanic man in question, but rather, it showed a match for Tyrone Robinson, a convicted thief living in Houston. Robinson also fit Smith’s description of her attacker as a heavyset black man with dreadlocks.

Investigators say around the time of Smith’s attack, hotel records showed Robinson had checked into an Austin hotel with a red sign in front off of I-35, as Smith had described. Detectives also found Robinson rented a white Chrysler 300 also matching Smith’s suspect vehicle. In April 2009, Robinson was arrested and charged with kidnapping and sexually assaulting Smith.

For years, Smith’s case would stall in the court system. Robinson posted his $150,000 bond and returned to Houston. Meanwhile, questions about how Smith’s DNA ended up on the Hispanic man’s sample would haunt prosecutors.

The Travis County District Attorney’s Office says it had to drop the charges in 2013 in order to refile the charges in 2014 after sending all the forensic evidence to outside labs for retesting. Court records show two outside labs excluded the Hispanic man as a person of interest and found the odds were 1 in 13 sextillion that the DNA found on Smith belonged to Robinson. Still, Smith says the risk of having to explain the forensic fallout to a jury may have been too much of a gamble for prosecutors.

While the local charges against Robinson were dropped, he is still awaiting trial in Houston. If Robinson is convicted there, Smith may be called to testify in the punishment phase. That’s of little comfort to her. “The last time I spoke to the DA’s Office they were relying on the other county he has charges in to put him in jail and I should seek my justice that way, and I don’t think that’s right. Call me selfish or whatever, but I’ve been through too much to sit here and say that’s OK. It’s just not right. It’s not right what they’ve done.”

Smith says no one is fighting for her anymore. “The case is dismissed and I don’t feel like I should be the one still fighting for it. Because they messed up. I don’t feel like I should still be fighting for it, fighting for justice for myself.”

KXAN asked the agency that investigated the lab who should be held accountable for the DNA contamination in Smith’s case. In a written statement, Lynn Garcia with the Texas Forensic Science Commission says, “For a case involving suspected carryover contamination, one would have expected a thorough vetting of evidence handling practices and remedial training for the analyst and technical reviewer at a minimum. We did not see any evidence of that in this case.”

Smith says no one is taking responsibility for what went wrong with the DNA evidence and says the only guilt in the case is the one she feels. “I cried a lot. I don’t know why, but I blamed myself. Maybe I didn’t push hard enough to seek justice?”

“I’m extremely angry at the people who were supposed to help get me justice,” Smith adds.

When asked if she feels anything went right, Smith pauses and says, “I feel like I did everything right, as much as I could. I survived. I guess that’s the biggest thing.”