Luz Albert Hernandez A/K/A Luzalbert Hernandez v. the State of Texas

                          NUMBER 13-23-00015-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


LUZ ALBERT HERNANDEZ A/K/A
LUZALBERT HERNANDEZ,                                                         Appellant,

                                               v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                          MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Benavides and Tijerina
            Memorandum Opinion by Justice Benavides

      Luz Albert Hernandez a/k/a Luzalbert Hernandez appeals from the trial court’s

denial of his Chapter 64 motion for post-conviction DNA testing. See TEX. CODE CRIM.

PROC. ANN. art. 64.03. By four issues that we construe as one, Hernandez contends that

the trial court erred by denying his motion because it was sufficiently dissimilar from his
previous motion. We affirm.

                                    I.    BACKGROUND

       The facts underlying Hernandez’s conviction and the facts concerning

Hernandez’s prior Chapter 64 motion are recounted in Hernandez v. State, No. 13-17-

00271-CR, 

, at *1–10 (Tex. App.—Corpus Christi–Edinburg July 26,

2018, pet. ref’d) (mem. op., not designated for publication) (Hernandez I), and Hernandez

v. State, No. 13-20-00216-CR, 

, at *1–5 (Tex. App.—Corpus Christi–

Edinburg Feb. 3, 2022, pet. ref’d) (mem. op., not designated for publication) (Hernandez

II), respectively.

       To summarize, Hernandez was convicted for aggravated assault with a deadly

weapon. See id. at *2. We affirmed that conviction on direct appeal and concluded that

the evidence was sufficient to establish that he exhibited a golf club during the assault.

See Hernandez I, 

, at *5. Hernandez then filed a Chapter 64 motion for

post-conviction DNA testing on the golf club, which the trial court denied. See Hernandez

II, 

, at *2. We affirmed the trial court’s judgment, holding that Hernandez

failed to meet his burden to show that identity was or is an issue in this case and that he

had not established by a preponderance of the evidence that an exculpatory DNA test

result would have changed the outcome of his trial. Id. at *5; see TEX. CODE CRIM. PROC.

ANN. art. 64.03(a)(1)(c), (2)(A).

       On December 9, 2022, Hernandez filed a second Chapter 64 motion for post-

conviction DNA testing on the golf club. In his second motion, Hernandez again

contended that exculpatory DNA results would have changed the outcome of his trial.


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That same day, the trial court denied Hernandez’s motion and found “that [Hernandez]

has previously filed the same or similar motions which have been denied.” This appeal

followed.

                            II.    LAW OF THE CASE DOCTRINE

       Chapter 64 motions are subject to the “law of the case” doctrine. State v.

Swearingen, 

 (Tex. Crim. App. 2015) (Swearingen II). Under that

doctrine, “an appellate court’s resolution of questions of law in a previous appeal are

binding in subsequent appeals concerning the same issue.” 

 (quoting State v.

Swearingen, 

 (Tex. Crim. App. 2014) (Swearingen I)). Accordingly,

“when the facts and legal issues are virtually identical, they should be controlled by an

appellate court’s previous resolution.” Swearingen II, 

 (quoting

Swearingen I, 

).

                                      III.   ANALYSIS

       Hernandez cites to no new developments in the law or facts surrounding his

Chapter 64 motion. The same statute applies, he seeks to test the same item, and no

new evidence has been discovered. See id. at 729 (Alcala, J., dissenting) (“For the law-

of-the-case doctrine to control this case, the evidence would have to show that the

applicable DNA statute, the items sought to be tested, and the evidence relevant to the

motion are virtually identical.”). Hernandez argues that the relief he seeks is different this

time, because he “filed this [Chapter ]64 motion on the precise ground that if the golf club

were tested for his fingerprints/touch DNA[,] the favorable results would disprove the

aggravating-factor element by proving that Hernandez never ‘used or exhibited’ the golf


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club.” Essentially, Hernandez argues that, though an exculpatory result would not prove

him innocent of the underlying assault, it would prove that he never wielded a deadly

weapon during the assault.

       But our prior holding encompassed the effect an exculpatory DNA result would

have on Hernandez’s conviction for aggravated assault with a deadly weapon; our holding

was not limited to some lesser-included offense, like assault, as Hernandez seems to

suggest. See Hernandez II, 

, at *5. In that prior case, we explained that

“[a]n exculpatory touch DNA result would be consistent with the defense’s theory that

[Hernandez] did not use a golf club during the commission of the assault, but it would also

be consistent with the evidence presented by the State that both Moreno and Hernandez

handled the golf club.” Id. at *4. We therefore concluded that “Hernandez failed to show

by a preponderance of the evidence that, had an exculpatory DNA result been presented

at trial, he would have been exonerated.” Id. at *5. In other words, we have already held

that an exculpatory result would not prove that Hernandez did not wield the golf club; it

would only prove that someone else also wielded the golf club. Id. at *3 (“[A]n exculpatory

result would merely demonstrate that a third party handled the golf club, which was

consistent with Moreno’s testimony that he kept the golf club in his shop and was able to

pull it away from Hernandez.”). We conclude that the law of the case doctrine applies

here, as the facts and legal issues are virtually identical to the ones we have already

decided against Hernandez in a prior appeal. See Swearingen II, 

.

       Alternatively, Hernandez also contends that his second Chapter 64 motion is

substantively different from his first, as he cites Leal and Holberg in his current motion,


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neither of which were cited in his prior motion. See Holberg v. State, 

(Tex. Crim. App. 2014); Leal v. State, 

 (Tex. Crim. App. 2009). But both

Leal and Holberg predate our prior memorandum opinion. See Holberg, 

; Leal, 

; see also Hernandez II, 

, at *1. Therefore,

again, there have been no new developments that would warrant a departure from the

law of the case doctrine. See Swearingen II, 

. We overrule Hernandez’s

sole issue.1

                                          IV.      CONCLUSION

        We affirm the trial court’s judgment.


                                                                           GINA M. BENAVIDES
                                                                           Justice

Do not publish.
TEX. R. APP. P 47.2(b).

Delivered and filed on the
14th day of December, 2023.




        1 Lastly, Hernandez recently filed a motion with this Court asking that we “abate and/or remand

this case back to the trial court to allow him to file a supplemental DNA motion that includes” certain newly
discovered evidence. However, as this new evidence and supplemental Chapter 64 motion were not before
the trial court at the time it denied Hernandez’s second Chapter 64 motion, we cannot consider it in this
appeal. See Balderas v. State, 

 (Tex. Crim. App. 2016). Therefore, we deny
Hernandez’s motion.
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