## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00179

- CR

____________ _______________

On Appeal from the 211th District Court Denton Cou nty, Texas Trial Court No. F

- 2003

- 0427

- C

Before Birdwell, Bassel, a nd Walla ch, JJ. Per Curiam Memorandum Opinion 

### D AVID 

### D URAN 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 ME MORANDUM OPINION In this appeal, we review the propriety of the trial court ’ s denial of David
Duran ’ s pro se third motion for DNA testing 1 related to his 2003 convi ction and life sentence for aggravate d sexual assau l t
. Duran contends (1) t h at the trial cou rt erred by denying testin g of blood taken from the com plainant one month after the offense but
several months be for e she reported the offense , (2) that his trial counsel was
ine ffective for failing to discover th at the complainant ’ s blood was dra wn at the hospital and tested by a third

- party labor atory , (3) that the evidence was neverth eless

not discov erable be fore trial because the State failed to give him not ice of the blood

test ’ s existence , (4) that his conviction is inf irm bec ause the complainant ’ s an d out cry witness ’ s identification s of him were unreliab le , (5) that he is actually innocent of one
of the acts t he State alleged in his original trial , and (6) that the State violated Code of
Criminal Procedure A rticles 38.39 and 38.43 an d A r izona v. Young blood , 488 U.S. 51 , 109 S. Ct. 333 ( 1988 ) , b y failing to notify Duran about its plan to “ destro y ” the blood

test result s . 2 We affirm.

1 Duran appealed the trial court ’ s denial of his first and second mo tions. We dismissed the appe al of the first motion as untimely, and we affir med the trial court ’ s denial of his second motion. See Duran v. State , No. 02

- 17

- 00405

- C R, 2018 WL 3075030, at * 3 ( Tex. App.

–– Fort Worth June 21, 2018, pet. ref ’d

) (mem. op., not d esignated for publication) ; Duran v. State , No. 2

- 08

- 378

- CR , 200 9 WL 417287, at *1 (Tex. App.

–– F ort Worth Feb. 1 9, 2009, no pet
. ) (mem. op., not designated for publication)

.

2 Duran appears to argue that the Stat e was r equired to obtain and preserve t he bl ood sample eve n though it was in the possession of a pr ivate l aboratory.3 We hav e jurisdiction to address only the a rgument s related to Duran ’ s first complaint: whether the trial court erred by de ter mining that Duran did not meet the
statutory requirements for DNA t esting un der Code of Criminal Proce d u re Article
64 .03

. Tex. Code Crim. Proc. Ann. art. 64 .03(a) ( providing that convicting court may order DNA testing of particular evidence only if it f ind s that ( a ) the evidence st ill exists and is in a condition making DNA testin g possible and it 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 , ” ( b ) there is a reasonable likelihood that the evidence contains biological m aterial suitable for DNA testing , ( c ) ide ntity
was or is an issue in the case , and ( d ) a preponderance of the evidence shows that the person would not have been convi cted if exc ulp atory results had been obtained through DNA testing and the request for the proposed DNA testing is not made to

unrea sonably delay the execution of sentence or administration of justice ) ; s ee Reger v.
State , 222 S.W.3d 510, 513 (Tex. App.

— Fort Worth 200 7, pet. ref ’ d) ( “ [T] he jurisdiction afforded us under chapter 64 does not exten d to collateral attacks on the judgment o f conviction or allow us to revisit matters that should have been addressed on direct appeal. ” ) ; Lopez v. State , 114 S.W.3d 711, 714 (Te x. App.

— Corpus Christi

– Edinburg 2003, no pet.) ( declin ing to address in Chapter 64 appea l complaints about

non disclosure of excul patory evidence , ineffective assistance , and evi dentiary sufficiency re lated to original trial); see also Thacker v. State , 177 S.W.3d 926, 927 (Tex.
Crim . App. 2005) ( noting that a motion for DNA t esting cannot pro vide relief from a4 conviction or sentence and is “ simply a vehicle for obtaining a certain type of evidence, which might then be used in a state or federal habeas proce eding ” ).
Dur an ’ s arguments related to the prop riety of Chapter 64 t esting a re the same

a s those he asserte d i n his second motion: he challeng es the trial court ’s implied finding s th at no biological materia l exists in a condition making DNA testing possible , and that e ven if such material existed , identi t y was not an issue in the original tria l

. B ut

we a re bound in this appeal by the law
- of

- the

- case doctrine

. See State v. Swearingen , 478 S.W.3d 716, 72 0 (Tex. Crim. App. 2015 ) ( “ Chapter 64 motions are also su bject to the

‘ law of the case ’ doctrine. ” )

. B ecause the record does not contain any change in the law, facts, or circumstances since our June 21, 201 8 opinion affirming the denial of
Duran ’ s second motion and the trial cou rt ’ s denial of Duran ’ s third motio n , we likewise overrule Duran ’ s complaint in this ap peal

. 3 See id. ; Duran v. State , No. 02

- 17

- 00405

- C R, 2018 WL 3075030, at * 2 ( Tex. App.

–– Fort Worth June 21, 2018, pet.
ref ’ d

) (me m. op., not designated for publication)

. A s he did in the appeal related to his second DNA motion, Duran has filed

n um erous moti ons , some of which thi s court h as rule d on and some of which are

3 To the extent Duran cites new authority , it is inapposite. See Williams v. Illi n o is , 567 U.S. 50, 59

– 6 5, 132 S . Ct. 2221, 22 29

– 32 (2012) (addressing whether t estimony b y state f ore ns ic specialist rega rding results of testing by private laboratory violated app ellant ’ s Confron tati on Cl ause right s )

.5 now moot. To the extent we have not granted Duran relief on any pending motion, we deny them all. 4 Having overruled the c o mplaint that we h ave jurisdiction to address, we affirm
the trial court ’ s order denying Duran ’ s thir d motion for DNA testing.
Per Curiam
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: December 5, 2019

4 In an abun dance of caution, we have reviewed the arguments in all five of Duran ’ s filings purporting to be briefing in this case: two recei ved o n August 26, 2019 ; one received on September 16, 2019 ; and two received on Sep tember 23 , 2019

.