COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE:

RONALD WAYNE THOMPSON,

Appellant.

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No. 08-20-00067-CR

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 20080D000241-210-01)

O P I N I O N

In January 2008, a grand jury indicted Appellant, Ronald Wayne Thompson, for the capital 

murder of Haley Chan during the course of a robbery. In 2010, he pleaded guilty to the lesserincluded offense of murder, and the trial court assessed a negotiated sentence of 40 years’ 

imprisonment. This appeal addresses the trial court’s denial of Appellant’s June 2019 motion 

requesting post-conviction DNA testing. He argues that the trial court improperly denied the 

motion, and next that Texas Code of Criminal Procedure Chapter 64 is unconstitutional as applied 

to his case. We affirm.
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I. BACKGROUND

At a 2010 plea hearing, Appellant told the trial court that he freely and voluntarily pleaded

guilty to murdering Chan because he was guilty, and for no other reason. Appellant believed that 

both of his attorneys represented him effectively, and he was happy with their performance. 

Appellant understood the terms of his negotiated sentence and pleaded true to the two punishment 

enhancements alleged in the indictment. Both the trial court and counsel declared that, based upon 

observations and interactions, they deemed Appellant competent to enter his plea.

The State announced that, if the case would have proceeded to trial, it would have proven 

beyond a reasonable doubt that Appellant intentionally killed Chan in 2007 by striking her in the 

head with a board. Appellant did not object to this summary, and the trial court found the board 

to be a deadly weapon.

Appellant did not file a direct appeal. In a state court application for writ of habeas corpus, 

however, Appellant alleged that he received ineffective assistance of trial counsel because his 

attorneys (1) advised him that he would be given the death penalty if he did not plead guilty, and 

(2) counsel did not request a competency hearing before his plea hearing. The Court of Criminal 

Appeals denied Appellant’s first application for writ of habeas corpus in 2017, and dismissed a 

subsequent application for writ of habeas corpus.

A. Chapter 64 Motion for Post-Conviction DNA Testing

On June 10, 2019, Appellant filed in the trial court a motion for post-conviction DNA 

testing of the following evidence: (1) a wood board; (2) a 1995 Pontiac Bonneville described as 

Chan’s car; (3) a cellular phone; (4) a desktop computer; and (5) a printer. Appellant requested 

DNA testing of evidence that contained biological material that had not previously been tested, 
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and evidence that was tested previously but could be subjected to newer techniques. He did not 

delineate which items fell into which category.

In an attached affidavit, Appellant explained that the State’s theory of the case was that he 

murdered Chan using a wood board, and then stole Chan’s Pontiac, desktop computer, printer, X 

Box video game console, and cellular phone. He maintained that he suffered from mental illness 

and intellectual disability while in custody awaiting trial, and that his attorneys told him if he did 

not plead guilty he would receive the death penalty. Appellant declared that testing these items, 

“if it returns any usable DNA, will show that none of [his] DNA is on the evidence,” and prove 

his innocence.

B. The State’s Response

In compliance with Code of Criminal Procedure Article 64.02, the State responded that it 

conducted a search to determine if it possessed the items Appellant requested to be tested.1 The 

Deputy Chief Investigator for the District Attorney, Jeff Dove, averred that the wood board, which 

remained in police custody, had already been tested for DNA and returned a match with only blood 

from Chan. Law enforcement released the Pontiac to the lienholder in 2011; however, the police 

department retained the brake and gas pedals, a shirt found inside the car, and swabs of portions 

of the vehicle. The State did not know if the swabs and brake and gas pedals contained testable 

biological material. The State knew that the shirt recovered from the Pontiac belonged to Dante 

Francois Taylor, but did not know if the shirt contained biological material suitable for DNA 

testing. Law enforcement also maintained custody of two cellular phones, neither of which had 

any readily observable biological material suitable for DNA testing. Law enforcement did not 

1 Article 64.02 instructs the trial court to provide the State with a copy of the motion for DNA testing, and requires

the State to either (a) deliver the evidence to the court, along with a description of the condition of the evidence, or 

(b) explain in writing why the State cannot deliver the evidence to the court. TEX.CODE CRIM.PROC.ANN. art. 64.02(a).
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have a desktop personal computer or printer in its possession. The State attached a report 

summarizing the results of the DNA testing of the wood board.

In a separate pleading, the State further responded that Appellant did not demonstrate that 

he was entitled to DNA testing under article 64.03. The State argued that the only testable items 

outside of the wood board in police custody were the cellular phones, and Appellant presented no 

evidence that they contained biological material suitable for testing. The State also argued that 

Appellant did not establish, by a preponderance of the evidence, that he would not have been 

convicted if DNA testing provided exculpatory results, because two pieces of evidence strongly 

established his guilt. First, witness Robert Castillo, the last person to see Chan alive in her 

apartment, swore that Appellant announced a plan to steal Chan’s computer to make money. In 

addition, the State attached a report summarizing DNA testing of pieces of duct tape found in 

Chan’s apartment and tape that bound Chan’s body, indicating that Appellant could not be 

excluded as a contributor to the DNA found on the evidence. Finally, the State maintained that 

Appellant did not establish that additional DNA testing of the wood board would yield more 

accurate and probative results than the testing previously performed.

1. Witness statements

The State attached two witness statements provided to law enforcement. Dante Francois 

Taylor stated that he met Chan in a bar in 2006 and the two became friends. Taylor left a work 

shirt and lunch box in Chan’s car when he was arrested. He lost communication with Chan while 

he was incarcerated for three months, and never retrieved the items or heard from Chan after he 

was released.

The second witness, Robert Castillo, identified an African-American male from a police 

photo lineup, who approached him at a bar parking lot selling used stereo equipment. Castillo 
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drove the man to an apartment, and the man used Castillo’s cellular phone to call “Haley,” the 

woman who had taken him in. Castillo answered when Haley returned the call on his phone, and 

a Caucasian woman who introduced herself as Haley subsequently arrived in a Pontiac sedan. 

After Castillo looked at the stereo equipment and exited the apartment, the man told Castillo that 

he would take half of the price in cash up-front for the goods. The man also complained to Castillo 

about staying in Haley’s apartment and the conditions she placed on him. The man divulged that 

he planned to “jack” Haley’s computer to make some money.

2. DNA testing of duct tape

The State also provided a summary of the results of DNA testing of several pieces of duct 

tape.2 The DNA profile from several loci of samples of duct tape was consistent with a mixture.

Appellant could not be excluded as a contributor to the stain at certain loci, and the probability of 

selecting an unrelated person at random who could be a contributor to the stain was approximately 

1 in 5,780 for Blacks. Chan could also not be excluded as a contributor to the stain at various loci, 

and the probability of selecting an unrelated person at random who could be a contributor to the 

stain was approximately 1 in 131.4 trillion for Caucasians.3

The partial DNA profile from the stain on a sample of duct tape recovered from Chan’s

ankle was consistent with a mixture. Appellant could not be excluded as a contributor to the stain 

at several loci, with the probability of selecting an unrelated person at random who could be a 

contributor to the stain at approximately 1 in 1,044 for Blacks. The DNA profile from blood on a 

third sample of duct tape, also recovered from Chan’s ankle, was consistent with a mixture of at 

least three individuals. Appellant could not be excluded as a contributor to the stain at several loci, 

2 Chan’s body was found with duct tape wrapped around her eyes and nose, as well as her ankles.

3 The Chief Medical Examiner’s post-mortem examination indicated that Chan was Caucasian.
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with the probability of selecting an unrelated person at random who could be a contributor 

approximately 1 in 243,400 Caucasians.

C. The Trial Court’s Order Denying Appellant’s Motion 

On February 10, 2020, the trial court entered an order denying Appellant’s motion for postconviction DNA testing. In reaching its decision, the court found the following relevant facts:

1. This Court finds that the only available DNA untested evidence in 

applicant’s request for testing is two cell phones.

2. This Court findsthat the applicant hasfailed to demonstrate thatthe cell

phones sought to be tested have a reasonable likelihood of containing

biological material.

3. This Court finds, based on the record, that the applicant has failed to 

establish, by a preponderance ofthe evidence, that hewould not have been

convicted if exculpatory results had been obtained through DNA testing

of the cell phones.

4. This Court finds that Thompson has failed in his burden to show, 

concerning the wood plank thatwas previously subjected to DNA testing,

that any newer testing techniques are available that would provide a

reasonable likelihood of results that would be more accurate and probative

than what has already occurred.

5. This Court findsthat the applicant hasfailed his burden of satisfying the

requirements of TEX.CRIM. PROC. CODE art. 64.03(a)(2).

Conclusions of Law

1. Based on this Court’s findings, the applicant has failed to satisfy his burden

of showing his entitlement to post-conviction DNA testing under Chapter 64 

of the Code of Criminal Procedure.

D. Appellant’s Late-Filed Reply

On February 18, 2020, eight days after the trial court had denied the motion, Appellant 

delivered a reply to the State’s response to his motion for DNA testing.4 Appellant argued that the 

4 The clerk filed Appellant’s reply on February 24, 2020.
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State’s response provided new evidence about his case when it stated that law enforcement 

swabbed the Pontiac and removed the brake and gas pedals and a shirt from the vehicle. He 

requested that the following evidence be tested: (1) all swabs law enforcement obtained from the 

house and Pontiac; (2) the shirt that law enforcement removed from the car; (3) duct tape that 

bound Chan when she was murdered, which contained Appellant’s DNA and two additional 

contributors; (4) the wood board; (5) two cellular phones; (6) a 1995 Pontiac; (7) a desktop 

computer; and (8) a printer. Appellant indicated that the State’s theory was that the offender bound 

Chan with duct tape, murdered her, and then robbed her of her 1995 Pontiac, two cellular phones, 

and desktop computer and printer. Appellant contended that the State could not prove he robbed 

or murdered Chan because his DNA would not be found in the Pontiac or on the two cellular 

phones that the State claims he stole from Chan’s home.

Appellant also indicated in the reply that he agreed with Castillo’s statement. Appellant 

took Castillo to Chan’s residence, where Appellant was staying, and Chan was alive when Castillo 

left. Although Castillo heard Appellant announce a plan to steal Chan’s computer, Castillo did not 

allege that Appellant stated he would murder or bind Chan with duct tape or rob Chan of her 

vehicle or cellular phone. Appellant acknowledged that his DNA profile would match the profile 

derived from samples taken from the crime scene, because he touched duct tape and other 

household items while staying with Chan. He claimed that the cellular phones law enforcement 

seized during his arrest were never in Chan’s possession and would not contain her DNA. The 

trial court took no action on this pleading.

II. NO ERROR IN DENYING CHAPTER 64 MOTION

Appellant first argues that the trial court improperly denied his motion for post-conviction 

DNA testing. Specifically, he contends that the State provided new evidence in its response, which 
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requires testing of (1) all swabs law enforcement obtained from the house and Pontiac; (2) the 

shirt law enforcement removed from the car; (3) duct tape that bound Chan when she was 

murdered; (4) the wood board; (5) two cellular phones; and (6) the gas and brake pedals from the 

Pontiac. Appellant maintains that he pleaded guilty because trial counsel told him he would 

otherwise receive the death penalty. He contends that his DNA was found on the duct tape because 

he stayed in Chan’s home before her murder. He argues that additional testing of the wood board 

would reveal the true offender, because the perpetrator’s DNA would be on the murder weapon.

The State responds that Appellant has not shown he is entitled to post-conviction DNA 

testing because he provided no evidence that there was a reasonable likelihood that any of the 

items contained biological material. He also did not demonstrate by a preponderance of the 

evidence that he would not have been convicted if DNA testing returned exculpatory results.

Finally, the State maintains that Appellant did not establish that newer testing techniques would 

provide more accurate and more probative results than those already obtained from the wood 

board. We agree, and conclude that the issue does not warrant relief.

A. Chapter 64 and the Standard of Review

“There is no free-standing due-process right to DNA testing, and the task of fashioning 

rules to ‘harness DNA’s power to prove innocence without unnecessarily overthrowing the 

established system of criminal justice’ belongs ‘primarily to the legislature.’” Ramirez v. State, 

621 S.W.3d 711, 717 (Tex.Crim.App. 2021), quoting Ex parte Gutierrez, 337 S.W.3d 883, 889 

(Tex.Crim.App. 2011). The Texas Legislature created a process for post-conviction DNA testing 

in the Code of Criminal Procedure Chapter 64. See TEX.CODE CRIM.PROC.ANN. arts. 64.01-64.03.

Article 64.01 delineates the requirements of a cognizable motion for post-conviction DNA 

testing. See id. art. 64.01. A “convicted person may submit to the convicting court a motion for 
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forensic DNA testing of evidence that has a reasonable likelihood of containing biological 

material.” Id. art. 64.01(a-1). The motion may only request testing of evidence that the State was 

in possession of at the time of trial, and was either (1) not previously tested for DNA or (2) 

“although previously subjected to DNA testing . . . can be subjected to testing with newer testing 

techniques that provide a reasonable likelihood of results that are more accurate and probative than 

the results of the previous test[.]” Id. art. 64.01(b)(1), (2)(A).

Article 64.03 sets out the findings a trial court must make in order to grant DNA testing, 

including that:

(1) The evidence “still exists and is in a condition making DNA testing possible;”

(2) The evidence “has been subjected to a chain of custody sufficient to establish 

that it has not been substituted, tampered with, replaced, or altered in any 

material respect;”

(3) “[T]here is a reasonable likelihood that the evidence contains biological 

material suitable for DNA testing; and

(4) “[I]dentity was or is an issue in the case[.]”

Id. art. 64.03(a)(1). Pursuant to article 64.03(a)(2)(A), the trial court must also find that the 

defendant establishes by a preponderance of the evidence that he “would not have been convicted 

if exculpatory results had been obtained through DNA testing[.]” Id. art. 64.03(a)(2)(A).

For the “identity” requirement, the convicting court is prohibited from finding against that 

element solely on the basis that the convicted person pleaded guilty, confessed, or admitted to the 

crime. Id. art. 64.03(b). Nonetheless, for the purposes of article 64.03(a)(2)(A), a court may 

properly consider a defendant’s confession or guilty plea in determining whether a convicted 

person establishes that he would not have been convicted if exculpatory results had been obtained 

through DNA testing. See Ramirez, 621 S.W.3d at 722 (instructing that a defendant’s confession 

is properly considered in determining whether he met his burden under article 64.03(a)(2)(A)). 
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Post-trial factual developments, such as evidence presented in habeas applications about the 

veracity of confessions, are not properly considered in making an article 64.03(a)(2)(A) 

determination. See id. Instead, a court limits its review to “whether exculpatory results ‘would 

alter the landscape if added to the mix of evidence that was available at the time of trial.’” Id. at 

723, quoting Holberg v. State, 425 S.W.3d 282, 287 (Tex.Crim.App. 2014); see Reed v. State, 541 

S.W.3d 759, 774 (Tex.Crim.App. 2017) (instructing that an accused must show by a greater than 

50% likelihood that he would not have been convicted if the proposed testing’s exculpatory results 

were available at the time of his trial).

A reviewing court gives almost total deference to the trial court’s resolution of historical 

fact issues supported by the record and application-of-law-to-fact issues turning on witness 

credibility and demeanor. See Ramirez, 621 S.W.3d at 718. Application-of-law-to-fact questions 

are reviewed de novo. See id.; Reed, 541 S.W.3d at 768-69.

B. Items Addressed on Appeal

In his initial Chapter 64 motion, Appellant requested post-conviction DNA testing of: (1) 

a wood board; (2) a 1995 Pontiac; (3) a cellular phone; (4) a personal computer; and (5) a printer. 

The State’s Chapter 64.02 response concerning the availability and condition of items for DNA 

testing, including exhibits and Dove’s affidavit, addressed these items. Appellant does not address 

the trial court’s denial of his request to test the personal computer or printer in his opening brief. 

As such, we will not address these two items on appeal. See TEX.R.APP.P. 33.1(a).

The State’s response mentioned additional evidence in its discussion--evidence that 

Appellant had not requested to be tested. After the trial court entered its order denying DNA 

testing, Appellant late-filed a reply requesting testing of additional items that the State had 

mentioned in its general response, including: (1) swabs of Chan’s home and vehicle; (2) a shirt 
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found inside the Pontiac; (3) the gas and brake pedals from the Pontiac; and (4) duct tape samples. 

Because the State did not file an article 64.02 response or exhibits concerning the availability and 

condition of these additional items for DNA testing, the trial court could not have ruled on the 

eligibility of these items to be tested. See TEX.CODE CRIM.PROC.ANN. arts. 64.02, 64.03. As such, 

we restrict our review on appeal to the trial court’s findings of fact and conclusions of law, which 

did not contemplate Appellant’s late-filed reply and additional requests. See TEX.R.APP.P. 33.1(a). 

Appellant is not precluded from filing a subsequent Chapter 64 post-conviction motion for DNA 

testing; however the convicting court, and not this Court, enjoys the first opportunity to rule on 

such a request. See TEX.CODE CRIM.PROC.ANN. art. 64.01(a-1) (providing that a motion 

requesting post-conviction DNA testing must be filed in the convicting court); see also State v. 

Swearingen, 478 S.W.3d 716, 720-21 (Tex.Crim.App. 2015) (in denying convicted person’s fifth 

motion for post-conviction DNA testing, noting that Chapter 64 motions are subject to the “law of 

the case” doctrine).

C. Trial Court’s Findings of Fact Are Supported by the Record

The trial court made express findings that Appellant did not meet various Chapter 64 

requirements, to show he was entitled to testing. The record supports these findings.

1. Articles 64.01(a)(1) & 64.03(a)(1)(B), biological material suitable for DNA 

testing

Cellular Phones: The trial court’s finding that Appellant did not demonstrate a reasonable 

likelihood that the cellular phones contained biological material suitable for DNA testing is 

supported by the record. Dove’s affidavit swore that he personally viewed two cellular phones 

kept at the police department property office, and neither had any readily observable biological 

material present. Because the record contains no other evidence concerning the matter, the trial 

court’s findings deserve deference. Thus, the trial court could not make the required finding under 
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articles 64.01(a)(1) and 64.03(a)(1)(B), that there was a reasonable likelihood that the items 

contained material suitable for DNA testing.

1995 Pontiac: The trial court’s finding that the 1995 Pontiac was not available for testing 

should be afforded deference, as Dove’s affidavit stated that law enforcement released the vehicle 

to the lienholder in 2011. Appellant’s request to test the Pontiac did not satisfy the requirement of 

article 64.03(a)(1)(A)(i) and (ii) that the evidence still exists or has not been altered in any material 

respect.

2. Article 64.01(b)(2)(A), previously subjected to DNA testing

Wood Board: For evidence that was tested and did yield a result, Appellant must show 

that new testing techniques will provide a reasonable likelihood of results that are more accurate 

and more probative than the results of the previous test. See LaRue v. State, 518 S.W.3d 439, 448 

(Tex.Crim.App. 2017); TEX.CODE CRIM.PROC.ANN. art. 64.01(b)(2)(A). Dove’s affidavit 

indicated that the wood board was in police custody and had been tested, with results showing only 

DNA from Chan. The State provided a summary of the DNA analysis of stains from the wood 

board, indicating that Chan was the source of the DNA, to a reasonable degree of scientific 

certainty. The probability of an unrelated person at random who could be the source of the DNA 

profile was approximately 1 in 208.1 quintillion for Caucasians. Because Appellant did not 

establish that a new testing technique would provide a reasonable likelihood of results more 

accurate and more probative than the prior test, his Chapter 64 motion did not meet the statutory 

requirements. See id. art. 64.01(b)(2)(A).

3. Article 64.03(a)(2)(A), 51% chance Appellant would not have been convicted

The record also supports the trial court’s finding that Appellant cannot show by a 

preponderance of the evidence that he would not have been convicted if exculpatory results had 

been obtained through DNA testing. See id. art. 64.03(a)(2)(A). “Exculpatory results” means only 
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results that exclude the convicted person as the donor of the material. See Reed, 541 S.W.3d at 

774. The Court of Criminal Appeals has explained that “[i]n a given case, the presence of a third 

party’s DNA may not have any tendency to exonerate the defendant from the crime.” Hall v. State, 

569 S.W.3d 646, 656 (Tex.Crim.App. 2019). Even when the presence of a third party’s DNA may 

tend to be exonerating, the defendant’s burden is not satisfied “if the record contains other 

substantial evidence of guilt independent of that for which [he] seeks DNA testing.” Id.

The record before this Court contains substantial evidence of guilt independent of that for 

which Appellant seeks DNA testing. Appellant announced to the trial court that he pleaded guilty 

because he was guilty of murdering Chan. See Ramirez, 621 S.W.3d at 722 (instructing that a 

defendant’s confession is properly considered in determining whether he met his burden under 

article 64.03(a)(2)(A)). Appellant does not dispute Castillo’s statement to law enforcement 

detailing how he asked Castillo to drive him to Chan’s apartment, where Appellant was staying.

During the interaction, Appellant told Castillo that he was unhappy living with Chan and 

announced a plan to “jack” Chan’s computer to make some money.

The Chief Medical Examiner’s report indicated that Chan was found murdered in her 

dining room. Silver duct tape was wrapped around her eyes, nose, and ankles, and she was bound 

by an extension cord that was attached to her vacuum cleaner. The Medical Examiner concluded 

that Chan’s cause of death was multiple blunt impact trauma to the head, and manner of death was 

homicide. He retrieved a wood chip from one of the wounds to Chan’s scalp. Appellant does not 

dispute that he was living in Chan’s apartment at the time she was murdered, or that his DNA was 

on the duct tape that bound her when she was killed. Appellant also does not dispute that he 

confessed to killing her with a wood board. DNA evidence that may show someone other than 
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Appellant was also involved in the crime does not exonerate him. See Hall, 569 S.W.3d at 657-

58.

Appellant has also not explained the relevance of the requested items to his conviction. 

Although an article 64.03(a)(2)(A) analysis requires a court to presume exculpatory results of the 

putative testing, it does not require a court to presume an item’s relevance to the question of the 

offender’s identity. See Reed, 541 S.W.3d at 774-75. In Reed v. State, the Court of Criminal 

Appeals concluded that a defendant could not establish that condoms, beer cans, and a paper 

napkin were connected to a murder simply because they were found near the crime scene. See id. 

at 775. The court rejected the defendant’s request to test additional items found inside the 

decedent’s truck simply because a perpetrator could have touched them, finding that the defendant 

did not demonstrate relevance or that exculpatory results injected doubt sufficient to cause a jury 

to acquit. Id.

As in Reed, Appellant has not established the relevance of the requested items to the 

offender’s identity. The record does not indicate who owned or used the cellular phones or where 

law enforcement found the items. Likewise, evidence excluding Appellant as the donor of 

biological material from the Pontiac would not negate his plea and admission to the trial court that 

he murdered Chan with a wood board. The Medical Examiner’s report indicated that Chan was 

found lying on the floor of her dining room, not in her vehicle. Furthermore, because the wood 

board was already tested and did not match Appellant, the item’s potential exculpatory nature was 

previously known. See id. at 773 (concluding that the accused did not establish that he would have 

been acquitted if exculpatory DNA results were obtained, in part, because the jury already knew 

that many of the items did not match him).
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The items collectively do not corroborate a defensive theory proposed by Appellant at the 

time of trial. See Routier v. State, 273 S.W.3d 241, 256-59 (Tex.Crim.App. 2008) (concluding 

post-conviction DNA testing was warranted when items the defendant wanted tested corroborated 

her defensive theory at trial). Even if Appellant was able to show some relevance towards the 

items, exculpatory results that would only “muddy the waters” are insufficient to show that the 

defendant would not have been convicted. Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 

2002).

As such, the trial court properly denied Appellant’s motion for DNA testing because he did 

not meet the pleading requirements of article 64.01, and he did not make the required showing 

under article 64.03(a). We thus overrule Appellant’s first issue.

III. THE TRIAL COURT WAS NOT PRESENTED WITH

CONSTITUTIONAL CHALLENGE

Appellant next argues that Texas Code of Criminal Procedure Chapter 64 is 

unconstitutional as applied to his case, because it violates his Eighth and Fourteenth Amendment 

rights to fundamental fairness by denying him access to DNA testing. The State responds that 

Appellant did not preserve the issue, because he did not raise it in the trial court. We agree.

Appellant did not raise this issue in his Chapter 64 motion. “‘As applied’ constitutional 

claims are subject to the preservation requirement and therefore must be objected to at the trial 

court in order to preserve error.” Reynolds v. State, 423 S.W.3d 377, 383 (Tex.Crim.App. 2014). 

To the extent Appellant’s argument may be interpreted as raising a facial challenge to Chapter 64, 

he may also not do so for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 

(Tex.Crim.App. 2009). We thus overrule the issue as not preserved.
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IV. CONCLUSION

Having overruled both of Appellant’s issues on appeal, we affirm the trial court’s judgment 

denying relief.

JEFF ALLEY, Justice

June 30, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)