1 

 

 In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

_________________ 

NO. 09-16-00359-CR 

_________________ 

JOHN LAWRENCE MATTHEWS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

________________________________________________________________________ 

On Appeal from the 1st District Court 

Jasper County, Texas 

Trial Cause No. 10823JD 

________________________________________________________________________ 

MEMORANDUM OPINION 

John Lawrence Matthews appeals the trial court’s denial of his motion for 

post-conviction DNA testing and motion to appoint counsel pursuant to chapter 64 

of the Texas Code of Criminal Procedure. See Act of May 12, 2015, 84th Leg., R.S., 

ch. 70, §§ 1–2, arts. 64.01(a–1), 64.03(a), § 3 (stating the change in law made by this 

Act applies to a motion for forensic DNA testing filed on or after the effective date), 
2 

§ 4 (effective September 1, 2015), 2015 Tex. Sess. Law Serv. 1061, 1061–62 

(amended 2017) (current version at Tex. Code of Crim. Proc. arts. 64.01, 64.03).1

Matthews was convicted of capital murder in December 2011, and sentenced to life 

in prison. 

Background 

Matthews appealed his underlying conviction, which the Thirteenth Court of 

Appeals affirmed. See Matthews v. State, No. 13-12-00052-CR, 2013 WL 3894005, 

at *21 (Tex. App.—Corpus Christi July 25, 2013, pet. ref’d) (mem. op., not 

designated for publication). The underlying facts of Matthews’s conviction were 

detailed in that opinion. Id. at *1–21. We briefly recite the facts pertinent to this 

appeal. 

In December 2011, Matthews and his two brothers were tried together in a 

single trial and convicted by a jury of capital murder of Jessie Palomo, Jr. and 

sentenced to life without parole. Id. at *1. At trial, testimony from accomplices and 

other corroborating evidence was presented. Id. at *1–12, 14–15. The evidence 

showed the brothers had traveled from Galveston to Kirbyville, Texas, to purchase 

 1

 We cite to the 2015 version of the statute as Matthews’s original motion for 

DNA testing and for appointment of counsel pursuant to chapter 64 was filed on 

October 13, 2015. The record does not indicate the trial court ruled on the original 

motions. Matthews filed amended motions for post-conviction DNA testing and 

appointment of counsel on November 16, 2015. 
3 

drugs from Palomo. Id. at *1. The middleman for the drug deal testified the plan was 

for Matthews and his brothers to buy a large amount of drugs from Palomo at a motel 

room. Id. at *4. Sometime after the three brothers entered the motel room with 

Palomo, witnesses observed Palomo crash through the window of the room with his 

pants down around his ankles and hands bound by his shirt and duct tape. Id. at *7–

9. He had been shot twice. Id. at *9. Witnesses then observed three individuals 

wearing hoodies and black masks fleeing the scene. Id. at *7–8. Accomplice 

testimony indicated the brothers all wore black hoodies. Id. at *2. On the way back 

to Galveston, the brothers discussed the shooting incident among themselves and 

exhibited two guns. They discarded bloody clothing along the way. Id. at *3. Instead 

of returning home after the incident, Matthews and his girlfriend had someone else 

rent them a hotel room in Galveston. Id. at *3. Matthews and his girlfriend were 

arrested the following morning while leaving the motel after detectives traced 

Matthews’s cellphone from a call he made to the middleman. Id. at *11. The jury 

was shown correspondence that Matthews sent to his girlfriend from jail instructing 

her to keep quiet and containing veiled references to two guns being disposed of. Id.

at *3. 

At trial, the State alleged Palomo was murdered during the commission of a 

robbery. Id. at *15. The jury was instructed on the law of the parties. Id. at *16. 
4 

Matthews argued on appeal that the evidence was insufficient to show he 

participated as a principal or a party in the murder. Id. at *15. However, the 

Thirteenth Court of Appeals noted the evidence showed the brothers brought 

firearms to meet a drug dealer, Palomo, who could provide a significant amount of 

drugs, worth at least $30,000. Id. at *17. Moreover, the brothers brought duct tape, 

a large nylon bag, masks or hoodies, and rubber gloves to their meeting with Palomo, 

which showed an intent to commit robbery. Id. The autopsy report revealed that 

before Palomo was shot, he suffered blunt-force trauma to his head, most likely from 

the butt or barrel of a pistol. Id. He was bound with duct tape and his pockets were 

emptied. Id. The Thirteenth Court of Appeals concluded that when it considered the 

combined force of all the non-accomplice evidence that tended to connect Matthews 

to the offense, the non-accomplice evidence sufficiently corroborated the testimony 

of the accomplice witnesses and showed the presence of the brothers at the time of 

the murder. Id. at *14. 

During the investigation, law enforcement obtained buccal swabs from 

Matthews and his brothers to develop profiles to compare with a swab taken from 

the mouth of a soda can found at the scene. Id. at *12. The State’s DNA expert 

testified that David Haywood, Matthews’s brother, was the source of the major 

component of the DNA profile from the soda can, but there was a portion of the 
5 

profile from the can that was consistent with Matthews’s profile. Id. On crossexamination, the State’s expert admitted that the portion of the profile consistent 

with Matthews’s profile was a common marker that one in nine African Americans 

and one in forty-two Caucasian persons possess, and he could not testify to any 

reasonable degree of scientific certainty that Matthews contributed to that DNA 

profile. Id. 

Standard of Review 

When reviewing the trial court’s chapter 64 rulings, we employ a bifurcated 

standard. See Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017), cert. 

denied, 2018 WL 707016 (June 25, 2018); Rivera v. State, 89 S.W.3d 55, 59 (Tex. 

Crim. App. 2002). We give almost total deference to the trial court’s findings of 

historical fact and application of the law to facts which hinge on witnesses’ 

credibility and demeanor. See Reed, 541 S.W.3d at 768; Ex parte Gutierrez, 337 

S.W.3d 883, 890 (Tex. Crim. App. 2011); Routier v. State, 273 S.W.3d 241, 246 

(Tex. Crim. App. 2008); Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). 

We consider all other application-of-law-to-fact questions de novo. See Gutierrez, 

337 S.W.3d at 890; Routier, 273 S.W.3d at 246. Because the trial court did not 

conduct a hearing or hear testimony from witnesses on the post-conviction DNA 

motion, we will review the issues de novo. See Smith v. State, 165 S.W.3d 361, 363 
6 

(Tex. Crim. App. 2005); Ambriati v. State, No. 09-15-00065-CR, 2015 WL 

6998616, at *4 (Tex. App.—Beaumont Nov. 12, 2015, pet. ref’d) (mem. op., not 

designated for publication). 

Analysis 

A. Post-Conviction DNA Testing 

Matthews complains in his first issue that the trial court abused its discretion 

by denying his post-conviction motion for DNA testing. In his amended motion for 

DNA testing, Matthews argued new technology exists for analyzing DNA mixtures. 

He points in particular to the DNA evidence found on a soda can and a chip bag in 

the motel room and the opinions regarding those findings from the State’s DNA 

expert. Matthews also makes a blanket assertion that “identity is an issue.” 

The statutory requirements of chapter 64 are preconditions that must be met 

before a court may order forensic DNA testing. See Holberg v. State, 425 S.W.3d 

282, 284, 288 (Tex. Crim. App. 2014). Article 64.01 governs the filing of a motion, 

and article 64.03 provides the prerequisites for testing. See 2015 Tex. Sess. Law 

Serv. at 1061–62. Pursuant to article 64.01(a-1), “[a] convicted person may submit 

to the convicting court a motion for forensic DNA testing of evidence that has a 

reasonable likelihood of containing biological material. The motion must be 
7 

accompanied by an affidavit, sworn to by the convicted person, containing 

statements of fact in support of the motion.” Id. at 1061. 

A court may only order forensic DNA testing under chapter 64 if: (1) it finds 

the evidence still exists, is in a condition to be tested, subjected to a proper chain of 

custody, and there is a reasonable likelihood the evidence contains biological 

material suitable for testing; (2) identity was or is an issue in the case; and (3) the 

convicted person establishes by a preponderance of evidence he would not have been 

convicted if exculpatory results were obtained through DNA testing. Id. at 1061–62. 

For the court to order post-conviction DNA testing, the “[b]asic requirements are 

that biological evidence exists, that evidence is in a condition that it can be tested, 

that the identity of the perpetrator is or was an issue, and that this is the type of case 

in which exculpatory DNA results would make a difference.” Gutierrez, 337 S.W.3d 

at 891. A favorable or exculpatory DNA result is one that would undermine the 

validity of the appellant’s conviction; otherwise, DNA testing would “simply 

‘muddy the waters.’” Id. at 892 (citing Rivera, 89 S.W.3d at 59). 

This is not a case where DNA testing of a lone perpetrator is sought. See id. 

at 900. In cases involving accomplices, the burden is more difficult as there is not a 

lone perpetrator who must have left DNA at the scene. Id. As the Court in Gutierrez

framed the critical question: “Will this testing, if it shows that the biological material 
8 

does not belong to the defendant, establish, by a preponderance of the evidence, that 

he did not commit the crime as either a principal or a party?” Id. We cannot answer 

that question affirmatively in the present case. This crime involved a number of 

accomplices, and the jury was instructed on the law of the parties which states that 

a person is criminally responsible for an offense committed by the conduct of another 

if, “acting with intent to promote or assist the commission of the offense, he solicits, 

encourages, directs, aids, or attempts to aid the other person to commit the 

offense[.]” See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). Even assuming new 

DNA testing would exclude Matthews as a contributor to the mixture on the soda 

can and chip bag, his exclusion as a contributor on those items would not 

affirmatively cast doubt on his conviction as a participant or party. See Gutierrez, 

337 S.W.3d at 900; Reed, 541 S.W.3d at 780 (holding trial judge did not err in 

denying chapter 64 motion because appellant failed to show by a preponderance of 

the evidence a reasonable probability that exculpatory DNA results would change 

the outcome of his trial and that his request was not made to unreasonably delay the 

execution of his sentence). 

The evidence at trial showed Matthews and his brothers were meeting the 

victim to purchase drugs, they were observed entering a motel room with the victim, 

who was later found beaten, his hands bound, pockets emptied, and pants pulled 
9 

down prior to being shot twice. Matthews, 2013 WL 3894005, at *2–4, 8–9. The 

three perpetrators were seen fleeing the scene on foot, and the brothers were picked 

up by Matthews’s girlfriend, who drove them back to Galveston. Id. at *2. On the 

way home, they discussed the crime, exhibited two guns and discarded shirts out of 

the car window. Id. at *3. Moreover, instead of staying in his home when he returned 

to Galveston, Matthews had another individual rent a hotel room for him. Id.

Matthews also sent letters to his girlfriend from jail telling her to keep quiet. Id. at 

*15. Matthews’s brother, David Haywood, was identified as being the major 

contributor to the DNA mixture on the soda can and chip bag found in the motel 

room where the victim was murdered. Id. at *12. Evidence of Matthews’s guilt as a 

party or a participant was overwhelming. Id. at *1–15. Multiple Texas courts have 

held a movant does not meet his burden under Article 64.03 if there is other 

substantial evidence of guilt independent of that for which the movant seeks DNA 

testing. See Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim. App. 2010); 

Wilson v. State, 185 S.W.3d 481, 486 (Tex. Crim. App. 2006) (noting in addition to 

all other evidence inculpating appellant, a newer DNA test would not produce 

evidence to exonerate appellant); Whitaker, 160 S.W.3d at 9 (in affirming trial 

court’s denial of post-conviction DNA testing, the Court agreed with State and noted 

regardless of blood on weapon, other evidence at trial established appellant’s guilt); 
10 

Brewer v. State, 143 S.W.3d 389, 394 (Tex. App.—Beaumont 2004, no pet.) (noting 

defendant’s burden of showing exculpatory DNA results was outweighed by all of 

the other evidence of guilt). 

Under Chapter 64, an appellant may be entitled to new forensic DNA testing 

if the evidence sought would exculpate him of all statutory aggravating factors that 

elevated the crime to capital murder. Leal v. State, 303 S.W.3d 292, 296 (Tex. Crim. 

App. 2009). Matthews failed to provide factual support to show further DNA testing 

of the soda can or chip bag would exculpate Matthews from the robbery or attempted 

robbery of Palomo.2

 The evidence on Matthews’s initial appeal of his conviction 

showed the brothers brought firearms to meet a drug dealer, Palomo, who could 

provide a significant amount of drugs, worth at least $30,000.00. Matthews, 2013 

WL 3894005, at *17. In addition, the brothers brought duct tape, a large nylon bag, 

masks or hoodies, and rubber gloves to their meeting with Palomo. Id. These items 

show intent to commit robbery. Id., at *16. 

 2

 On appeal, Matthews filed an affidavit from Harry J. Bonnell, M.D. on 

January 17, 2017. Matthews’s amended motion for post-conviction DNA testing was 

filed with the trial court on November 15, 2015, and ruled upon by the trial court on 

September 22, 2016. Because the affidavit was not filed with the trial court before 

its ruling on the motion, it was not considered by the trial court and therefore, is not 

a part of the appellate record before us, and we did not consider such affidavit in our 

decision. See Tex. R. App. P. 34.1. 
11 

In his amended motion Matthews asserts “identity is an issue.” “The identity 

requirement in Chapter 64 relates to the issue of identity as it pertains to the DNA 

evidence.” Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). The 

identity requirement cannot be met unless the DNA testing determines the identity 

of the perpetrator or exculpates the accused. Id.; see Leal, 303 S.W.3d at 296; see 

also 2015 Tex. Sess. Law Serv. at 1061–62. Matthews has not asserted in his motions 

that he was not with David Haywood the night of the murder, nor has he alleged that 

the previous DNA results linking Haywood to the soda can in the room were flawed. 

Additional DNA testing on the soda can or chip bag present at the scene will not 

identify who killed Palomo or exclude Matthews in this case, since the jury’s verdict 

is based on the law of the parties. Therefore, he cannot meet the identity requirement. 

See Leal, 303 S.W.3d at 296. 

Because we have determined that any further DNA testing of the soda can or 

chip bag would not exculpate Matthews as either a participant or party in the crime, 

he cannot meet the threshold requirement for post-conviction testing under article 

64.03. See 2015 Tex. Sess. Law Serv. at 1061–62; Gutierrez, 337 S.W.3d at 891–

92, 894; Swearingen, 303 S.W.3d at 736. Moreover, we have determined Matthews 

cannot meet the identity requirement as any further DNA testing of these items 

would not identify the perpetrator in this case or exclude him. See Leal, 303 S.W.3d 
12 

at 296. Therefore, because Matthews failed to provide factual support for his motion 

as required by article 64.01(a), the trial court did not commit error in denying 

Matthews’s motion for post-conviction DNA testing. See 2015 Tex. Sess. Law Serv. 

at 1061–62.We overrule issue one. 

B. Appointment of Counsel 

Matthews argues on appeal that the trial judge failed to rule on his motion to 

appoint counsel. While there is no indication in the record that the trial court ruled 

on Matthews’s motion or amended motion to appoint counsel, the court denied 

Matthews’s motion for post-conviction DNA testing. Thus, we conclude that the 

request was overruled by implication. See Tex. R. App. P. 33.1(a)(2)(A) (to preserve 

error, record must show that the trial court “ruled on the request, objection, or 

motion, either expressly or implicitly”); Joseph v. State, Nos. 03-16-00404-CR, 03-

16-00405-CR, 2017 WL 3471038, at *2 (Tex. App.—Austin Aug. 9, 2017, no pet.) 

(mem. op., not designated for publication) (concluding trial court’s order denying 

request for DNA testing after appellant made his request for appointed counsel, 

impliedly denied request for appointed counsel). 

To be entitled to appointed counsel for a post-conviction motion for DNA 

testing, Matthews must show “reasonable grounds” exist for the filing of such 

motion. Gutierrez, 337 S.W.3d at 889–90. A convicted person is not required to 
13 

prove he is entitled to testing as a precondition to having counsel appointed, but 

“whether ‘reasonable grounds’ exist for testing necessarily turns on what is required 

for testing.” Gutierrez, 337 S.W.3d at 891. There are no reasonable grounds to 

appoint counsel or justification for testing if an exculpatory result would not alter 

the likelihood the inmate would still have been convicted. Id. at 892. Such is the case 

here, as the results of any further testing are unlikely to exonerate Matthews given 

the totality of the evidence presented at trial in this cause. See id. Matthews has not 

demonstrated reasonable grounds for the motion to be filed, so the trial court was 

not required to appoint counsel to represent him. See id.; Warner v. State, No. 05-

12-01165-CR, 2013 WL 3294878, at *2 (Tex. App.—Dallas June 26, 2013, pet. 

ref’d) (mem. op., not designated for publication) (holding that because appellant did 

not establish reasonable grounds for the motion to be filed, the trial court was not 

required to appoint counsel). Accordingly, we overrule Matthews’s second issue. 

Conclusion 

 Having overruled all issues on appeal, we affirm the ruling of the trial court 

denying Matthews’s post-conviction motion for DNA testing and the trial court’s 

implicit denial of his motion for appointment of counsel. 
14 

AFFIRMED. 

 

 

 ________________________________ 

 CHARLES KREGER 

 Justice 

 

Submitted on January 2, 2018 

Opinion Delivered June 27, 2018 

Do Not Publish 

Before Kreger, Horton, and Johnson, JJ.