In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00027-CR _________________
JOSEPH GLENN GOODRICH, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 19098 ________________________________________________________________________
MEMORANDUM OPINION
Joseph Glenn Goodrich appeals the trial court’s order denying his motion for
forensic DNA testing under article 64 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006). He raises one issue on
appeal. We affirm.
Background
A jury convicted Goodrich of murder, and this Court affirmed his conviction
on direct appeal. See Goodrich v. State, No. 09-10-00167-CR, 2011 WL 1417026 1 at *1, *5 (Tex. App.—Beaumont Apr. 13, 2011, pet. ref’d) (mem. op.). In
overruling his legal and factual sufficiency challenges, we described the evidence
from his trial as follows:
The evidence proving Goodrich’s guilt is largely circumstantial. The evidence before the jury established that Goodrich had purchased drugs from Bogany on several occasions before Bogany was murdered. Approximately ten days before the murder, Goodrich and Bogany argued about a drug deal, and Goodrich told a friend that he was going to shoot Bogany. On the day before and the day of the murder, phones available to Goodrich were used to place telephone calls to Bogany’s cellular phone; on the day of the murder, Goodrich left a voicemail message requesting that Bogany call him. Although there were no witnesses who testified they saw the murder occur, or witnesses who saw Goodrich and Bogany together on the day of the murder, there was also additional circumstantial evidence that a meeting between Goodrich and Bogany occurred around the time and at the scene of the murder. Additionally, a ballistics expert testified that shells found at the scene of the murder had been fired from the same gun as a shell from a gun known to have been in Goodrich’s possession prior to Bogany’s murder. After the murder, upon being initially questioned by a Texas Ranger, Goodrich denied that he knew Bogany, and denied having ever purchased drugs from him. In a subsequent interview, Goodrich admitted that he knew Bogany and admitted that he had purchased drugs from him on more than one occasion.
Id. at *2.
Goodrich’s motion for post-conviction DNA testing identified the following
evidence to be tested: (1) four spent shell casings and three spent projectiles; (2) a
photograph of a shoe print; (3) a plaster cast made from a tire impression; and (4)
fingerprints lifted from Bogany’s vehicle. No affidavit was made a part of 2 Goodrich’s motion for post-conviction DNA testing. On December 10, 2013, the
trial court denied Goodrich’s motion by written order without a hearing. The trial
court found that Goodrich did not establish by a preponderance of the evidence that
he would not have been convicted if exculpatory results had been obtained through
DNA testing of the items identified in his motion. Goodrich filed a timely notice of
appeal.
On the same day that Goodrich filed his notice of appeal in this case,
Goodrich, acting pro se, filed a motion requesting the trial court to rescind its order
denying his request for DNA testing. Goodrich’s motion included an oath stating
that he declared “under the penalty of perjury . . . that the facts stated herein are
true and correct.” Goodrich’s motion was denied by operation of law.
Denial of Forensic DNA Testing
Generally, we review a trial court’s decision on a motion for DNA testing
under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.
Crim. App. 2004). We afford almost total deference to the trial court’s
determination of issues of historical fact and issues of application of law to fact
that turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55,
59 (Tex. Crim. App. 2002). We review de novo other issues of application-of-law-
to-fact questions that do not turn on the credibility and demeanor of witnesses. Id.
3 Here, because the trial court did not conduct a live hearing, we review the trial
court’s denial of DNA testing de novo. See Smith v. State, 165 S.W.3d 361, 363
(Tex. Crim. App. 2005).
Article 64 of the Code of Criminal Procedure governs a convicted person’s
request for post-conviction forensic DNA testing and contains multiple threshold
requirements that must be met before an applicant is entitled to such testing. See
e.g. Tex. Code Crim. Proc. Ann. arts. 64.01 (West Supp. 2014) (requirements for
convicted person’s motion), 64.03 (West Supp. 2014) (requirements to be entitled
to DNA testing). The convicted person bears the burden of satisfying all article 64
requirements. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
A motion for post-conviction DNA testing may request testing of “evidence
containing biological material.” Tex. Code Crim. Proc. Ann. art. 64.01(a-1). As a
threshold matter, therefore, the convicted person is required to show the evidence
sought to be tested contains biological material. Swearingen v. State, 303 S.W.3d
728, 732 (Tex. Crim. App. 2010). Article 64 defines biological material in relevant
part as:
an item that is in possession of the state and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing[.]
4 Tex. Code Crim. Proc. Ann. art. 64.01(a)(1). On the motion of a convicted person,
a court may order forensic DNA testing of biological evidence only if (1) the court
finds that the evidence still exists, has been subjected to a sufficient chain of
custody, and is in a condition making DNA testing possible; (2) the court finds that
identity was or is an issue in the case; and (3) the convicted person establishes by a
preponderance of the evidence that he or she would not have been convicted if
exculpatory results had been obtained through DNA testing, and the request for
testing is not made to unreasonably delay the execution of sentence or
administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a). The convicted
person’s motion must be accompanied by an affidavit containing facts in support
of the motion. Id. at art. 64.01(a-1).
On appeal, Goodrich only complains about the trial court’s denial of his
motion for DNA testing on the fingerprints, palm print, and touch evidence found
on Bogany’s vehicle. Goodrich states that the Montgomery County Crime
Laboratory processed Bogany’s vehicle for latent prints and touch evidence.
Goodrich contends that several latent prints not belonging to Bogany or to
Goodrich were found on the vehicle and three of the prints were suitable for
identification purposes. In his first motion for DNA testing, Goodrich requested
5 that the court “submit latent prints recovered by using conventional powder for
DNA testing.” He then contends in his motion,
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00027-CR _________________
JOSEPH GLENN GOODRICH, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 19098 ________________________________________________________________________
MEMORANDUM OPINION
Joseph Glenn Goodrich appeals the trial court’s order denying his motion for
forensic DNA testing under article 64 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006). He raises one issue on
appeal. We affirm.
Background
A jury convicted Goodrich of murder, and this Court affirmed his conviction
on direct appeal. See Goodrich v. State, No. 09-10-00167-CR, 2011 WL 1417026 1 at *1, *5 (Tex. App.—Beaumont Apr. 13, 2011, pet. ref’d) (mem. op.). In
overruling his legal and factual sufficiency challenges, we described the evidence
from his trial as follows:
The evidence proving Goodrich’s guilt is largely circumstantial. The evidence before the jury established that Goodrich had purchased drugs from Bogany on several occasions before Bogany was murdered. Approximately ten days before the murder, Goodrich and Bogany argued about a drug deal, and Goodrich told a friend that he was going to shoot Bogany. On the day before and the day of the murder, phones available to Goodrich were used to place telephone calls to Bogany’s cellular phone; on the day of the murder, Goodrich left a voicemail message requesting that Bogany call him. Although there were no witnesses who testified they saw the murder occur, or witnesses who saw Goodrich and Bogany together on the day of the murder, there was also additional circumstantial evidence that a meeting between Goodrich and Bogany occurred around the time and at the scene of the murder. Additionally, a ballistics expert testified that shells found at the scene of the murder had been fired from the same gun as a shell from a gun known to have been in Goodrich’s possession prior to Bogany’s murder. After the murder, upon being initially questioned by a Texas Ranger, Goodrich denied that he knew Bogany, and denied having ever purchased drugs from him. In a subsequent interview, Goodrich admitted that he knew Bogany and admitted that he had purchased drugs from him on more than one occasion.
Id. at *2.
Goodrich’s motion for post-conviction DNA testing identified the following
evidence to be tested: (1) four spent shell casings and three spent projectiles; (2) a
photograph of a shoe print; (3) a plaster cast made from a tire impression; and (4)
fingerprints lifted from Bogany’s vehicle. No affidavit was made a part of 2 Goodrich’s motion for post-conviction DNA testing. On December 10, 2013, the
trial court denied Goodrich’s motion by written order without a hearing. The trial
court found that Goodrich did not establish by a preponderance of the evidence that
he would not have been convicted if exculpatory results had been obtained through
DNA testing of the items identified in his motion. Goodrich filed a timely notice of
appeal.
On the same day that Goodrich filed his notice of appeal in this case,
Goodrich, acting pro se, filed a motion requesting the trial court to rescind its order
denying his request for DNA testing. Goodrich’s motion included an oath stating
that he declared “under the penalty of perjury . . . that the facts stated herein are
true and correct.” Goodrich’s motion was denied by operation of law.
Denial of Forensic DNA Testing
Generally, we review a trial court’s decision on a motion for DNA testing
under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.
Crim. App. 2004). We afford almost total deference to the trial court’s
determination of issues of historical fact and issues of application of law to fact
that turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55,
59 (Tex. Crim. App. 2002). We review de novo other issues of application-of-law-
to-fact questions that do not turn on the credibility and demeanor of witnesses. Id.
3 Here, because the trial court did not conduct a live hearing, we review the trial
court’s denial of DNA testing de novo. See Smith v. State, 165 S.W.3d 361, 363
(Tex. Crim. App. 2005).
Article 64 of the Code of Criminal Procedure governs a convicted person’s
request for post-conviction forensic DNA testing and contains multiple threshold
requirements that must be met before an applicant is entitled to such testing. See
e.g. Tex. Code Crim. Proc. Ann. arts. 64.01 (West Supp. 2014) (requirements for
convicted person’s motion), 64.03 (West Supp. 2014) (requirements to be entitled
to DNA testing). The convicted person bears the burden of satisfying all article 64
requirements. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
A motion for post-conviction DNA testing may request testing of “evidence
containing biological material.” Tex. Code Crim. Proc. Ann. art. 64.01(a-1). As a
threshold matter, therefore, the convicted person is required to show the evidence
sought to be tested contains biological material. Swearingen v. State, 303 S.W.3d
728, 732 (Tex. Crim. App. 2010). Article 64 defines biological material in relevant
part as:
an item that is in possession of the state and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing[.]
4 Tex. Code Crim. Proc. Ann. art. 64.01(a)(1). On the motion of a convicted person,
a court may order forensic DNA testing of biological evidence only if (1) the court
finds that the evidence still exists, has been subjected to a sufficient chain of
custody, and is in a condition making DNA testing possible; (2) the court finds that
identity was or is an issue in the case; and (3) the convicted person establishes by a
preponderance of the evidence that he or she would not have been convicted if
exculpatory results had been obtained through DNA testing, and the request for
testing is not made to unreasonably delay the execution of sentence or
administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a). The convicted
person’s motion must be accompanied by an affidavit containing facts in support
of the motion. Id. at art. 64.01(a-1).
On appeal, Goodrich only complains about the trial court’s denial of his
motion for DNA testing on the fingerprints, palm print, and touch evidence found
on Bogany’s vehicle. Goodrich states that the Montgomery County Crime
Laboratory processed Bogany’s vehicle for latent prints and touch evidence.
Goodrich contends that several latent prints not belonging to Bogany or to
Goodrich were found on the vehicle and three of the prints were suitable for
identification purposes. In his first motion for DNA testing, Goodrich requested
5 that the court “submit latent prints recovered by using conventional powder for
DNA testing.” He then contends in his motion,
It is not known whether DNA testing can extract DNA from a latent print developed with conventional powder. It is not known when the latent prints developed using conventional powder were left in [the victim’s] vehicle. It is not known whether the latent prints developed using conventional powder were left by any individual involved in the [murder of the victim].
In his motion to rescind the trial court’s order denying the DNA testing, Goodrich
reiterates that he is requesting “the finger/palm prints discovered by authorities be
compared” to three suspects. He then contends that “investigating authorities
concluded that, the shooter opened the victim’s driver side door and shot the victim
as he sat in his car.” He concludes that “testing would more likely [than] not reveal
who the actual person or persons responsible for the murder[.]”
As threshold matter, we note that Goodrich’s motion for DNA testing does
not meet the requirements of article 64.01 because Goodrich’s motion was
unaccompanied by an affidavit. See Tex. Code Crim. Proc. Ann. art. 64.01(a-1).
However, Goodrich’s motion to rescind the trial court’s order denying DNA
testing was accompanied by an unsworn declaration. See Tex. Civ. Prac. & Rem.
Code Ann. § 132.001 (West Supp. 2014) (permitting an inmate to make an
unsworn declaration in lieu of an affidavit, as long as the unsworn declaration
meets the requirements set forth therein). Assuming without deciding that 6 Goodrich’s unsworn declaration in his motion to rescind was sufficient to meet the
requirements in section 132.001 and sufficient to meet the affidavit requirement in
article 64.01, we conclude that Goodrich’s motions still fail to meet the
requirements of article 64 as discussed below.
Goodrich contends that fingerprints, palm prints, and touch evidence
constitutes biological material under article 64. However, the record does not
contain any concrete evidence that biological material existed in the fingerprints,
palm prints, and touch evidence. In his motion for DNA testing, Goodrich
acknowledged that it is not known whether DNA testing could extract DNA from a
latent print developed with conventional powder. To the extent Goodrich is
requesting DNA testing of biological material contained in the prints or touch
evidence, Goodrich has failed to meet his threshold burden of showing such
evidence actually exists. See Swearingen, 303 S.W.3d at 734 (“[I]n order to show
evidence containing biological material, a movant must articulate more than mere
assertions.”). To the extent Goodrich is seeking the fingerprints and palm print
evidence tested for purposes of obtaining a comparative analysis, such is not
available through article 64. See In re Morton, 326 S.W.3d 634, 647 (Tex. Crim.
App. 2010) (holding that fingerprint analysis cannot be compelled under article 64
7 of the Code of Criminal Procedure because it does not involve testing of biological
material).
Even if Goodrich had demonstrated that the items he seeks to test contain
biological material, Goodrich did not establish that he would not have been
convicted if exculpatory results had been obtained through DNA testing. Goodrich
is required to show by a preponderance of the evidence that he would not have
been convicted if exculpatory results had been obtained through DNA testing. See
Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). Here, Goodrich correctly pointed
out in his motion for DNA testing that even if DNA testing revealed the prints
belonged to one of the other suspects in this case or someone else not previously
tied to the murder investigation, it is still unknown when those prints were left. The
prints or DNA could have been deposited on Bogany’s vehicle at any time prior to
the murder. The DNA test results would not determine the identity of the person
who committed the murder, nor exculpate Goodrich for the murder. We conclude
that the trial court did not err in denying Goodrich’s motion for forensic DNA
testing under article 64 or his motion to reconsider the denial of his request for
DNA testing. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008);
Bell v. State, 90 S.W.3d 301, 305-06 (Tex. Crim. App. 2002). We overrule
Goodrich’s sole issue and affirm the trial court’s order.
8 AFFIRMED.
______________________________ CHARLES KREGER Justice
Submitted on February 11, 2015 Opinion Delivered March 18, 2015 Do not publish
Before Kreger, Horton and Johnson, JJ.