









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,042 


EX PARTE DONALD WAYNE GOOD, Applicant






ON APPLICATION FOR WRIT OF HABEAS CORPUS 
FROM DALLAS COUNTY



Per Curiam.


O P I N I O N

 This is an application for a writ of habeas corpus which was transmitted to this Court
by the clerk of the trial court pursuant to the provisions of Texas Code of Criminal
Procedure, Article 11.07. Ex parte Young, 418 S.W.2d 824, 824 (Tex. Crim. App. 1967). 
Applicant was convicted of burglary of a habitation with intent to commit theft, rape, and
sexual abuse.  Applicant's sentence was assessed at life imprisonment.
 Applicant contends that he is innocent based on newly discovered DNA evidence.  At
the time of his 1983 trial, testing was done that showed that Applicant was included in the
30% of white male population that could have left the biological evidence .  In 2003 a motion
was made and granted for DNA testing under Chapter 64 of the Texas Code of Criminal
Procedure.  Applicant submitted a sample, and in a report dated April 7, 2004, the DPS
Laboratory excluded Applicant as a contributor to the sperm sample taken from the vaginal
swab of the victim.  The State agrees that Applicant is entitled to relief.  The trial court took
judicial notice of the Court's original file, the transcript and reporter's record of the trial, the
DNA filings, and the Application for Writ of Habeas Corpus and attachments in this case,
and has entered findings of fact and conclusions of law in which it has found that Applicant
is entitled to habeas corpus relief.  In Ex parte Elizondo, 947 S.W.2d 202, (Tex. Crim. App.
1996), this court held, ". . . if applicant can prove by clear and convincing evidence to this
Court, in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on
his newly discovered evidence, he is entitled to relief."  Id at 209.  After a review of the
record, we agree with the trial court's determination and find that Applicant is entitled to
habeas corpus relief due to newly discovered DNA evidence that was not available at the
time of  trial.  The judgment and sentence in cause number F83-81435-J from the Criminal
District Court No. 3 of Dallas County, Texas, is vacated. Applicant is remanded to the
custody of the Sheriff of Dallas County to answer to the indictment. 
	A copy of this opinion shall be sent to the Texas Department of Criminal Justice,
Correctional Institutions Division.

DO NOT PUBLISH
DELIVERED: November 17, 2004	
