                                     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
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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.

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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.




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