KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, JOHNSON, HERVEY, and RICHARDSON, JJ., joined.

Bryce E. Benjet, New York, NY, for Appellant.

William J. Delmore III, Assistant District Attorney, Conroe, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, JOHNSON, HERVEY, and RICHARDSON, JJ., joined.

The trial judge granted Larry Swearingen's request for post-conviction DNA testing of several pieces of evidence under Texas Code of Criminal Procedure Chapter 64. The judge also conditionally granted Swearingen's motion to release certain evidence for preliminary testing to determine whether the evidence contained biological material. Because we once again find that Swearingen fails to satisfy Chapter 64's requirements, we reverse the judge's order. We dismiss the State's appeal challenging the conditional order.

I. Facts and Procedural History

After being found guilty of the 1998 capital murder of eighteen-year-old Melissa Trotter, Swearingen was sentenced to death on July 11, 2000. His conviction was affirmed on direct appeal.We have found the following previous findings of fact surrounding the substantial inculpatory evidence presented at Swearingen's trial supported by the record:

• On the evening of December 7, 1998, two of [Swearingen's] acquaintances, the Fosters, witnessed a phone conversation in which [Swearingen] arranged for a lunch meeting with a girl at a library the following day, and [Swearingen] then told the Fosters that the girl was Melissa Trotter, a college student from Willis.

• Three witnesses saw [Swearingen] sitting with Melissa in the Montgomery College library between 11:30 a.m. and 1:30 p.m. the following day, December 8, 1998.

• Melissa's Biology teacher saw her leave the Montgomery College library with a male shortly after 1:30 p.m. that day.

• Melissa's car remained in the Montgomery College parking lot following her disappearance on December 8, 1998.

• At 2:05 p.m. on December 8, 1998, [Swearingen] called Sarah Searle and said that he was at lunch with a friend.

• Sometime around 3:00 p.m. on December 8, 1998, [Swearingen's] landlord saw [Swearingen's] truck leaving from behind his home.

• At 3:03 p.m. on December 8, 1998, [Swearingen] placed a cell phone call that utilized a cell tower near FM 1097 in Willis, Texas, which would be consistent with [Swearingen] driving from his home to the Sam Houston National Forest.

• [Swearingen's] wife testified that she found their home in disarray on the evening of December 8, 1998, but none of the Swearingens' property was missing.

• [Swearingen's] wife observed Melissa's cigarettes and lighter in [Swearingen's] house that evening, and those items were subsequently recovered from [Swearingen's] home during the investigation.

• Hair and fiber evidence, as well as other physical evidence, showed that Melissa had been in [Swearingen's] car and his home on the day of her disappearance.

• [Swearingen] filed a burglary report falsely claiming that he had been out of town and his home was broken into on the day of Melissa's disappearance.

• Between the time of Melissa's disappearance and [Swearingen's] arrest, [Swearingen] told two acquaintances on two different occasions that he believed police would be after him.

• When the Fosters heard that Melissa Trotter was missing on December 9, 1998, they contacted [Swearingen], who claimed he did not remember the last name of the girl with whom he had met the day before.

• When Mrs. Foster told [Swearingen] that she recalled him saying the last name was “Trotter,” and that a girl named Melissa Trotter was now missing, the phone went dead.

• [Swearingen] led a Sheriff's deputy on a high speed chase.

• Following [Swearingen's] arrest, law enforcement authorities observed and photographed red marks on [Swearingen's] neck, cheek, and back.

• On December 17, 1998, two neighbors of [Swearingen's] mother and stepfather collected numerous pieces of torn paper from along their street, which turned out to be Melissa Trotter's class schedule and some health

insurance paper work Melissa's father had given to her.

• Melissa's body was discovered in an area of the Sam Houston National Forest with which [Swearingen] would have been familiar from previous time spent there.

• Melissa's body showed signs of significant decomposition when it was discovered in the woods 25 days after her disappearance.

• The ligature found around Melissa's neck matched the remainder of a pair of pantyhose found within [Swearingen's] home.

• The Harris Country Chief Medical Examiner testified that during the digestive process, a person's stomach will usually not empty in less than two hours, and any food within the stomach at death will remain there.

• The contents of Melissa's stomach at the autopsy, which included what appeared to be chicken and a french fry-like form of potato, were consistent with the tater tots she had eaten at Montgomery College shortly before leaving with [Swearingen] and the Chicken McNuggets she and [Swearingen] had apparently purchased at the nearby McDonald's on the day of her disappearance.

• While in jail, [Swearingen] attempted to create an exculpatory letter written in Spanish in which he claimed to be someone else who had knowledge of Melissa's murder.

• Within that letter, [Swearingen] detailed specifics of the offense that accurately corroborated the physical and medical evidence in the case.

• While in jail awaiting trial, [Swearingen] told a cell mate that he had committed the capital murder and his only objective was to escape the death penalty.

This is certainly not Swearingen's first foray in post-conviction DNA testing. He filed Chapter 64 motions in October 2004, May 2008, and January 2009. All were denied by the trial judge. In January 2013 he filed his fourth motion. The judge granted the request, but we reversed.In May 2014, approximately three months after our opinion, Swearingen filed a supplemental request for testing—a fifth motion under Chapter 64. In it, he requested post-conviction DNA testing of several pieces of evidence. In the granting Swearingen's request, the judge found that (1) the evidence identified in Swearingen's motion exists, contains biological material, is in a condition suitable for DNA testing, and subject to sufficient chain of custody, (2) that identity was an issue in this case, and (3) it is probable that Swearingen would not be convicted if exculpatory results were obtained through testing. The order then directed DNA testing of all the requested pieces of evidence:

1. “Fingernail scrapings from Ms. Trotter's left and right hands, Trial Exhibit # 219.”

2. “The ligature used to strangle Ms. Trotter (torn pantyhose), Trial Exhibit # 169, and hair and other samples collected from ligature.”

3. “The pantyhose comprising the other half of the ligature, Trial Exhibit # 175, and hair and other samples collected from pantyhose.”

4. “Four (4) cigarette butts found near Ms. Trotter's body, not offered at trial.”

5. “Items of Ms. Trotter's clothing as follows:

a. Ms. Trotters [sic] bra, Trial Exhibit # 163;

b. Ms. Trotter [sic] blue jeans, Trial Exhibit # 165;

c. Ms. Trotter's sweater, Trial Exhibit # 166;

d. Ms. Trotter's underwear, Trial Exhibit # 167; and

e. Ms. Trotter's black shirt (Not entered as an exhibit, but collected and bagged at autopsy);”

6. “Rape Kit”; and

7. “Hairs collected from body, gloves used to move Trotter's body, and hairbrush found near scene.”

The judge's second order conditionally granted a Motion for Release of Evidence “if it is later determined that the proof of the existence of biological material is insufficient.” The judge signed these orders without conducting any evidentiary hearing and a mere six months after we held that Chapter 64 did not entitle Swearingen to DNA testing of most of the same pieces of evidence.

II. Analysis

Under Chapter 64, a “convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.”But the convicting court can only order this testing if five requirements are met:

(1) “the court finds that the evidence still exists and is in a condition making DNA testing possible;”

(2) “the court finds that 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) “the court finds that identity was or is an issue in the case;”

(4) “the convicted person establishes by preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing;” and

(5) “the convicted person establishes by preponderance of the evidence that the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.”

Chapter 64 motions are also subject to the “law of the case” doctrine.According to that doctrine, “an appellate court's resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue.”Therefore, “when the facts and legal issues are virtually identical, they should be controlled by an appellate court's previous resolution.”Such a rule promotes “judicial consistency and efficiency.”

A. Order granting DNA testing under Chapter 64

This Court has previously published opinions refusing Swearingen's Chapter 64 motions pertaining to the particular pieces of evidence (1) through (5) listed above.Most recently, in 2014, we unanimously reversed this judge's granting Swearingen's prior Chapter 64 motion requesting DNA testing of that evidence. We held that under the “law of the case” doctrine, the judge erred when he granted testing of pieces of evidence (2) through (5).We also held that Swearingen was not entitled to DNA testing of the fingernail scrapings because we were “not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the ‘mountain of evidence’ of [Swearingen's] guilt.”And in our 2010 unanimous opinion, we noted that the evidence of Swearingen's guilt was “overwhelming” and that “even if we were to grant [his] request to test all of the items proffered and those results were exculpatory, [he] cannot show by a preponderance of the evidence, or that there is a 51% chance, that he would not have been convicted.”We noted that the trial judge made “supported-by-the-record findings of fact that again, underscore the substantial evidence of guilt.”Because we find that the record does not contain any change in the law, facts, or circumstances since our 2014 opinion and the granting of Swearingen's latest Chapter 64 motion, we see no reason to revisit our previous holdings on the matter. We hold that the judge erred in granting the DNA testing request of the items listed as (1) through (5) above.

The judge, however, found our 2010 holdings inapplicable in that “Swearingen's current request includes additional probative evidence such as the rape kit, hair evidence and cigarette butts.” Including cigarette butts as a distinguishing factor is clearly wrong. Swearingen sought testing of the cigarette butts in 2010 and 2014. To the extent the rape kit and hair evidence present entirely new requests, they do not prove that this current request should be resolved any differently than in our 2010 and 2014 conclusions. Swearingen is still unable to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.

The judge's determination that Swearingen satisfied this requirement rests largely on two theories:

(1) “these results would both rule out an innocent explanation for the presence of the foreign DNA and would likewise provide support for Swearingen's contention that the pantyhose found outside his home was planted”; and

(2) “Swearingen pointed to several alternative suspects as well as known killers active in the area at the time. There would be no innocent explanation for finding the DNA of an alternative suspect or known killer on or in the victim or at the crime scene.... The strength of this [new-found] evidence [of

a known killer's involvement] would be greatly increased if subsequent investigation of that individual produced additional evidence of guilt such as a confession or a false denial of contact with the victim or the scene.”

The judge's order does not take into consideration what we referred to in our 2010 and 2014 opinions as the “mountain of inculpatory evidence” Swearingen faced at trial. In fact, the current judge's discussion of the relevance of potential results omits the most inculpatory pieces of evidence admitted against Swearingen. Further, the judge's findings are entirely speculative, especially when considered in the context of all the admitted evidence. We faulted Swearingen in 2014 for attempting to rely on the ramifications of hypothetical matches from evidence that eviscerate Chapter 64's requirements.And it is even more attenuated to assume hypothetical confessions and false denials of contact stemming from hypothetical DNA matches. Once again, Swearingen cannot establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. For the foregoing reasons, we vacate the order granting Chapter 64 testing.

B. Conditional order granting the release of evidence for preliminary testing

The judge's second order dismissed as moot Swearingen's Motion for Release of Evidence because he had granted Swearingen's requested Chapter 64 DNA testing. The order continued nonetheless and purportedly granted the motion in the alternative. It is this language that forms the basis of the State's separate appeal:

However, the Court finds that, pursuant to the amended Article 64.01(a), that the defendant would have the right to demonstrate the presence of “identifiable” biological material which “may be suitable” for testing. Accordingly, this Court would GRANT the motion in the alternative if it is later determined that the proof of the existence of biological material is insufficient.

....

... [I]f the evidence of the existence of biological material pursuant to Article 64.01(a)is subsequently determined to be insufficient, the Motion [for Release] is GRANTED.

However, the State is unable to appeal this conditional order. The State claims that it may, citing Article 44.01 because the order was “issued under Chapter 64,”and Article 64.05's broad phrase allowing “appeals under this chapter.”While resolving the issue here would perhaps “provide an orderly and expeditious means for review of a potentially unauthorized order,”we hold the State cannot contest the order's validity by way of appeal. The conditional order appears to be effective, if at all, in the event that this Court holds that Swearingen was not entitled to Chapter 64 testing. In other words, the conditional order rests on grounds outside the bounds of Chapter 64.

In State v. Patrick,a plurality of this Court held that the State could not appeal a judge's order granting testing that did not purport to be based on Chapter 64.The Patrickplurality held that the proper avenue to contest the order was through a writ of mandamus, which it conditionally granted, holding the judge was “clearly and indisputably without jurisdiction to issue the order in question.”The plurality held that a trial court does not possess any inherent powers extending beyond the powers granted to it under Chapter 64 that would permit it from granting preliminary testing.Unlike Patrick,the State does not seek mandamus relief along side its appeal. Accordingly, we must dismiss this State's appeal.

III. Conclusion

For the foregoing reasons, in cause number AP–77,043, we reverse the judge's order granting DNA testing under Chapter 64 and remand for proceedings in accordance with this opinion. In cause number AP–77,044, we dismiss the State's appeal challenging the judge's order conditionally granting the release of evidence.

YEARYand NEWELL, JJ., join Part IIB of the opinion.

YEARY, J., filed a concurring and dissenting opinion, in which NEWELL, J, joined.

ALCALA, J., filed a dissenting opinion.

CONCURRING AND DISSENTING OPINION

YEARY, J., filed a concurring and dissenting opinion in which NEWELL, J., joined.

I.

I join Part II.B. of the Court's opinion disposing of cause number AP–77,044.

II.

I write separately to express why I believe the Court ought to affirm the trial court's order granting DNA testing, in cause number AP–77,043, at least in part.

A. The Ligature, Cigarette Butts, and Victim's Clothing

With respect to much of the evidence that the convicting court has now ordered that testing be done (victim's clothing, cigarette butts, ligature), we have already held—in some cases, twice—that Appellee failed to show the existence of biological materials on these particular items. State v. Swearingen, 424 S.W.3d 32, 37–38 (Tex.Crim.App.2014); Swearingen v. State, 303 S.W.3d 728, 732–33 (Tex.Crim.App.2010). Finding no “change in the law, facts, or circumstances since our 2014 opinion[,]” Majority Opinion at 721, the Court continues to reject Appellee's request to test those items for the same reason. Judge Alcala believes that there hasbeen a change in the facts that would preclude applicability of the law of the case doctrine, namely, DNA analyst Huma Nasir's revised opinion. Dissenting Opinion at 729–31. Nasir now explains that, when she said “likely” in her earlier affidavit, she actually meant “at least more likely than not[.]” Id.at 730. She then somehow translates “more likely than not” into “a reasonable degree of scientific certaintythat biological material is present[.]” Id.(emphasis supplied.) In State v. Swearingen,we made it clear as a matter of law that “merely probable” is not sufficient. 424 S.W.3d at 38. In common parlance, “more likely than not” is the same as “probable.” I cannot blame the Court for rejecting the notion that “probable” may reasonably be regarded as equating with “a reasonable degree of scientific certainty.” Like the Court, I see no change in the law or facts to preclude our application of the law of the case doctrine. Majority Opinion at 721.

B. Fingernail Scrapings, Rape Kit, and Hairs

With respect to the fingernail scrapings, the Court today also relies on the law of the case doctrine, but this time to hold that Appellee cannot establish a differentprerequisite to DNA testing. Majority Opinion at 720–21. In State v. Swearingen,we held that, even assuming such testing would turn up DNA from a third party, not Appellee's, such exculpatory evidence would not “overcome the ‘mountain of evidence’ of [Appellee's] guilt.” 424 S.W.3d at 38(quoting Swearingen v. State, 303 S.W.3d at 736). Hence, he cannot establish by a preponderance of the evidence that he would not have been convicted had the fingernail scrapings contained a third party's DNA. The Court reiterates that holding today.

Beyond this, however, the Court today does not purport to rely on the law of the case doctrine. Regarding Appellee's request for DNA testing of several new items, namely, the rape kit and certain hairs, the Court seems willing to assume that these do contain biological material and does not reject Appellee's request for testing on that account. Instead, in an altogether new holding, the Court concludes that, as with new DNA testing of the fingernail scrapings, current testing of the rape kit and hairs, even if it revealed third-party DNA, would not serve to refute the “mountain of evidence” pointing to Appellee's guilt. “Once again,” the Court concludes, in an original holding that does not rely upon law of the case, Appellee “cannot establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.” Majority Opinion at 721

I agree with Judge Alcala that both the hair and the rape kit contain biological material in contemplation of Article 64.01(a)(1). Tex.Code Crim. Proc.art. 64.01(a)(1). Dissenting Opinion at 731–32. “Hair” is expressly listed in the statute as it presently reads, and a rape kit will inevitably contain, if not “semen,” then at least some type of “bodily fluid,” even if only the victim's. But in making any assessment as to whether exculpatory DNA results would likely change a jury's verdict, the Court should measure the “mountain of evidence” inculpating Appellee against presumptively favorable test results for allof the evidence for which biological material has been shown to be present: the rape kit, the hairs, and the fingernail scrapings.The Court should not rely on law of the case in this piecemeal fashion to first reject DNA testing of the fingernail scrapings, and then later to reject DNA testing of the rape kit and hairs without factoring in the fingernail scrapings. Instead, I would have the Court measure the mountain of evidence against the exculpatory inferences that would flow from DNA testing that would presumptively show third party DNA on all threeof these sources, considered together.

I am not unmindful of decisions from this Court that have refused DNA testing under circumstances in which such testing might reveal no more than the presence of an accomplicewithout also ruling out the defendant's participation as either principal actor or party. See, e.g., Wilson v. State, 185 S.W.3d 481, 485 (Tex.Crim.App.2006)(“[I]f new, more discriminating DNA testing showed that another perpetrator was involved, that finding would not exonerate appellant because it would show nothing more than there was another party to the crime, at best.”). But, I believe that if DNA testing all three of these items had demonstrated third-party DNA—and especially had it revealed the presence of DNA from the samethird party in all three of these items, and none of Appellee's DNA—some rational juror might readily have harbored a reasonable doubt with respect to whether Appellee had any role in Trotter's abduction, sexual assault, and murder. Cf. Routier v. State, 273 S.W.3d 241, 259 (Tex.Crim.App.2008)(“In our estimation, DNA evidence showing that an unknown intruder—indeed, the same unknown intruder—had left blood on the night shirt and the door from the utility room to the garage, along with a facial hair and a pubic hair, would more likely than not have caused the jury to harbor a reasonable doubt as to the appellant's guilt and decline to convict her.”). At the very least, we should defer to the convicting court's judgment to that effect.

For these reasons, I ultimately dissent to the Court's disposition of cause number AP–77,043.

DISSENTING OPINION

ALCALA, J., dissenting.

This is a close case with greatly important competing interests. On the one hand, this brutal crime against a young college student, Melissa Trotter, occurred almost twenty years ago, and the evidence establishing her killer's guilt should have been finally resolved by now. On the other hand, for about a decade, Larry Ray Swearingen, appellee, has been seeking DNA testing on items that he claims would exonerate him of this offense for which he was convicted. Swearingen's current motion includes first-time requests for DNA testing on hair evidence and the sexual assault evidence-collection kit from the victim (rape kit), which are by definition biological material under the applicable statute. I conclude that, despite the volume of incriminating evidence of Swearingen's guilt, DNA testing on the hair evidence and the rape kit linking a different person to this offense would, by a preponderance of the evidence, show that Swearingen would not have been convicted. I, therefore, respectfully dissent from this Court's judgment that, for the third time in over a decade, denies Swearingen access to DNA testing under Chapter 64 of the Code of Criminal Procedure. SeeTex.Code Crim. Proc.arts. 64.01, 64.03. I would accordingly uphold the trial court's order granting DNA testing of these items. With respect to the other items, I concur in this Court's judgment denying the testing.

I. Background

Since he was convicted and sentenced to death for the rape and murder of Melissa Trotter, Swearingen has filed multiple motions for DNA testing, each of which has been rejected by this Court.¹Acknowledging that he filed a motion in 2004 that was denied by the trial court and later dismissed by this Court on appeal due to procedural default, I focus on his 2008 motion that this Court addressed in Swearingen I;his 2013 motion initially addressed in Swearingen II;and his supplement to the 2013 motion that was filed after our remand to the trial court in Swearingen II,which is the subject of this Court's instant opinion that I will refer to as Swearingen III. At issue in this case are Swearingen's requests for DNA testing on (1) the ligature that was used to kill the victim, consisting of one half of a pair of pantyhose, (2) the other half of the pair of pantyhose found in Swearingen's trailer, (3) hairs found on and near the body, (4) the rape kit, (5) the fingernail scrapings, (6) the cigarette butts found near the victim's body, and (7) the victim's clothing. For consistency, I refer to these items using the above assigned numbers throughout the opinion.

A. The 2008 Motion Discussed in Swearingen I

In May 2008, Swearingen filed a Chapter 64 motion for DNA testing, and he updated the motion in January 2009. After the trial court denied that motion, this Court affirmed the trial court's ruling. Swearingen v. State, 303 S.W.3d 728 (Tex.Crim.App.2010)(Swearingen I). This motion requested the testing of materials that Swearingen had not sought to be tested previously: (1) the ligature; (5) the victim's fingernail scrapings, including (5–a) scrapings from under the left-hand fingernails that were shown to contain blood flakes and (5–b) other scrapings from under the left-and right-hand fingernails, consisting of a “black flaky matter” and traces of sand or gravel; (7) the victim's clothing, including scrapings from her ripped jeans; and (8) a foreign pubic hair that was recovered during the collection of the rape kit. Id.at 730.

The trial court denied the requests for DNA tests of (1) the ligature, (5–b) the other fingernail scrapings, and (7) the clothing because there had been no showing that these items contained biological material. Id.On appeal from the trial court's denial of the motion for DNA testing, this Court noted that the then-existing statute required a movant to show that each of these items actually contained biological material. Id.at 733. This Court held that, with respect to those items, “the record [was] void of any concrete evidence that biological material existed on the evidence sought to be tested.” Id.

The trial court's order also denied testing of (5–a) the victim's left-hand fingernail scrapings that contained blood flakes. Id.at 735. In upholding the trial court's ruling as to this evidence, this Court observed that the blood flakes had already been tested, and the results of that testing had revealed a full male DNA profile that was inconsistent with the DNA profile of Swearingen, the complainant, or any other known DNA profile. Id.Although the initial test was not done with the most recent technique, this Court reasoned that Swearingen was not entitled to retesting of this evidence because the previous test had already produced accurate, probative results in the form of a full male DNA profile that had been submitted to CODIS without a match. Id.This Court, therefore, concluded that Swearingen had failed to show “a reasonable likelihood that results of re-testing would be more accurate or probative.” Id.

The trial court additionally denied the request for testing of the foreign pubic hair that was recovered during the collection of the rape kit because the pubic hair could not be found and a chain of custody could not be established. This Court upheld this ruling because the hair was not available for testing. Id.

This Court also upheld the trial court's determination that Swearingen had filed the Chapter 64 motion to unreasonably delay his execution. Id.at 736. Furthermore, the Court detailed, in twenty-five bullet points, the evidence supporting its conclusion that, even if the DNA test results were favorable as to the items that had been requested for testing in that motion, Swearingen was unable to show by a preponderance of the evidence that he would not have been convicted. Id.at 736–38.

B. The Third Motion Addressed in Swearingen II

In response to the Legislature's amendment of Chapter 64 in 2011, Swearingen filed another motion seeking DNA testing in 2013. His motion sought to have DNA testing performed on several pieces of evidence: (1) the ligature, (2) the other leg of pantyhose, (5) the fingernail scrapings, (6) the cigarette butts, and (7) the victim's clothing. In support of his motion, Swearingen attached an affidavit, dated January 2013, by Huma Nasir, a forensics supervisor at Orchid Cellmark, Inc. The State responded that the doctrine on the law of the case applied and, on that basis, it argued that Swearingen's motion for DNA testing should be rejected.

The trial court granted the motion in June 2013, thereby ordering DNA testing to proceed, and it made findings of fact and conclusions of law supporting that order. After the State appealed, this Court reversed the trial court's order. State v. Swearingen, 424 S.W.3d 32 (Tex.Crim.App.2014)( Swearingen II). This Court explained that it had reviewed the requests discussed in Swearingen Iwith respect to (1) the ligature, (5) the fingernail scrapings, and (7) the victim's clothes. Id.at 36. This Court stated, “Although the law has been amended, these amendments did not affect all of our previous determinations. In the instances where the amendment did not impact our analysis, the trial court erred by failing to adhere to our previous determinations.” Id.

This Court noted that, since Swearingen's previous round of DNA requests, the Legislature's amendments changed Chapter 64 in two major ways. Id.First, the Legislature added a definition of “biological material,” which specifies that certain items, such as fingernail scrapings, are per se biological material. Id.at 37. Second, the Legislature eliminated a requirement that the lack of previous testing had not been the convicted person's fault.Id.In examining the meaning of these amendments, this Court initially observed, as it had in Swearingen I,that a movant for DNA testing is required to demonstrate that the evidence contains biological material. Id.The Court further said, “No part of the amendments addresses a method for determining the existence of biological material.” Id.The Court expressly noted that Swearingen had the burden to “prove biological material exists and not that [its existence] is merely probable.” Id.at 38.

As to the particular items that Swearingen sought to be tested, this Court held that he had failed to show the existence of biological material in the case of (1) the ligature, (2) the pantyhose, (6) the cigarette butts, and (7) the victim's clothing. Id.This Court reasoned that, although Swearingen had presented Nasir's affidavit indicating that touch DNA would “likely” be contained on those items, a mere probability of the existence of biological material was inadequate to satisfy his burden under the statute. Id.at 38. In light of the absence of new evidence in Swearingen II that would show that these items contained biological material, this Court reached the same conclusion as in Swearingen I,in which this Court had held that the lack of evidence of biological material required Swearingen's motion to be rejected. See id. at 37–38; Swearingen I, 303 S.W.3d at 733. This Court determined that the law-of-the-case doctrine applied, and it was bound to its former analysis and ruling denying the testing as to these particular items. Swearingen II, 424 S.W.3d at 37–38.

As to (5) the fingernail scrapings, this Court held that the law-of-the-case doctrine did not apply because the amended statute defined fingernail scrapings as biological material per se, and, therefore, Swearingen did not need to show that they contained biological material. Id.at 38. Nonetheless, this Court ruled that Swearingen was not entitled to DNA testing as to the fingernail scrapings. Id.at 38–39. It reasoned that, even if exculpatory results were obtained, “the victim's having encountered another person would not factually exclude [Swearingen] from having killed her,” in light of the fact that “[t]here are many ways someone else's DNA could have ended up in the victim's fingernails.” Id.It further observed that the jury was already aware that an unidentified male's DNA was found under the victim's fingernails, and, therefore, any additional similar exculpatory results would not have likely changed the jury's verdict in light of the “mountain of evidence” showing Swearingen's guilt. Id.at 39(“If the jury already knew of exculpatory results obtained from under the victim's nails and disregarded them, we have no reason to believe that it would be any different with regards to the remainder of the fingernail scrapings.”). This Court reversed and remanded for proceedings in accordance with its opinion. Id. C. This Court's Instant Majority Opinion: After Remand from Swearingen II

After this Court's remand order, Swearingen supplemented his motion by requesting DNA testing on items that he had previously requested to have tested, and he additionally sought DNA testing on certain items for the first time. He explained that “each item was either not previously tested or can now be tested with much more sensitive technology that will produce more robust results.” Specifically, the first-time requests are for testing of (3) the hairs, including hair recovered from the victim's body and clothing, hairs on the ligature and pantyhose, hair recovered from gloves used to move the body, and hair recovered from a hairbrush found near the victim's body, and (4) the rape kit. In response, the State argued that the law-of-the-case doctrine should apply to this case in its entirety.

II. The Doctrine on the Law of the Case is Inapplicable to the Requests for DNA Testing on (2) the Pantyhose, (3) the Hair Evidence, (4) the Rape Kit, and (6) the Cigarette Butts

The doctrine on the law of the case is inapplicable to four of Swearingen's requests. Swearingen now presents additional evidence in support of his claim that (2) the pantyhose and (6) the cigarette butts contain biological material, and he includes first-time requests for testing on (3) the hair evidence and (4) the rape kit, neither of which was before this Court in Swearingen Ior Swearingen II.Because the facts are not virtually identical, the law-of-the-case doctrine is inapplicable to these requests.

The law-of-the-case doctrine is designed to promote consistency and efficiency so that trial courts may rely upon the holdings of reviewing courts. Carroll v. State, 101 S.W.3d 454, 461 n. 35 (Tex.Crim.App.2003). It is only applicable if “the facts and legal issues are virtually identical ... [so that] they should be controlled by an appellate court's previous resolution.” Swearingen II, 424 S.W.3d at 36. 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 tested, and the evidence relevant to the motion are virtually identical. See id.

Here, the applicable DNA statute permits a convicted person to “submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.” Tex.Code Crim. Proc.art. 64.01(a–1). This motion may request testing of evidence that was secured in relation to the offense comprising the underlying conviction and was in the possession of the State during the trial but either was not previously tested or, although previously tested, can be tested with newer techniques which can provide more accurate and probative results. Id.A convicting court may order testing if the evidence in question (1) still exists and is in a condition making DNA testing possible; (2) 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; and (3) identity was or is an issue in the case. Id.art. 64.03(a)(1). Further, the convicted person has the burden of showing by a preponderance of the evidence that he “would not have been convicted if exculpatory results had been obtained through DNA testing” and that the request for testing is not made to unreasonably delay the execution of sentence. Id.art. 64.03(a)(2).

Swearingen's present motion for DNA testing includes requests for testing of the following items: (A)(1) the ligature, (2) the pantyhose, (6) the cigarette butts, and (7) the victim's clothing; (B)(3) the recovered hair samples; and (C)(4) the rape kit. Swearingen also requests testing of (5) the fingernail scrapings, which I discuss in Section D. Section D addresses the State's theory that the doctrine on the law of the case broadly applies to bar DNA testing in this case because of this Court's characterization in Swearingen I and Swearingen IIthat there is a mountain of evidence that shows Swearingen's guilt for this offense.

A. (1) The Ligature, (2) The Pantyhose, (6) The Cigarette Butts, and (7) The Victim's Clothing

In Swearingen II,this Court held that Swearingen had failed to provide evidence to show that there would be DNA on (1) the ligature, (2) the pantyhose, (6) the cigarette butts, and (7) the victim's clothing, and, here, he requests DNA testing as to the same items.Swearingen II, 424 S.W.3d at 38. This time, however, he has produced a new affidavit from his DNA expert, Huma Nasir, in which she reports that biological material is present on these items. She states, “It is my opinion to a reasonable degree of scientific certainty that biological material is present on [ (1) the ligature, (2) the pantyhose, (6) the cigarette butts, and (7) the victim's clothing].” No affidavit from Nasir was presented in Swearingen I.And Nasir's former affidavit in Swearingen II more equivocally stated,

Thus the pantyhose was probably handled by the assailant with some force and likely contains his biological material that is suitable for DNA testing.... Biological material from any wearer of this pantyhose and anyone who tore the pantyhose is likely to be detected on this item using modern DNA testing.... Where there has been such obvious and forceful contact with the victim's clothing, the biological material of the victim and the perpetrator is likely to be deposited on the clothing.... Because cigarettes are both manually handled and placed in a person's mouth, skin cells and epithelial cells from saliva were likely deposited on the cigarettes, rendering them suitable for DNA analysis....

Upon Swearingen's request after this Court's remand in Swearingen II,Nasir supplemented her affidavit to more clearly articulate her scientific position that we now consider in the instant case. The new affidavit states,

In my prior affidavit, I discussed the concept of “touch DNA” and explained that DNA profiles can be obtained from microscopic amounts of skin cells left by a person who has touched or handled an object. I provided my expert opinion that the objects identified in this case would “likely” contain biological material suitable for testing. By “likely,” I meant that it is at least more likely than not that evidence in this case would contain biological material.... I have now been asked to provide a more precise opinion regarding the scientific likelihood that biological material is present on the objects identified for testing in this case.... It is my opinion to a reasonable degree of scientific certainty that biological material is present on the items....

Because the facts before us are different in light of the new evidence of the presence of biological material based on a never before considered affidavit, the law-of-the-case doctrine ordinarily would be inapplicable in the resolution of this matter. Here, however, as I explain in Section D below, the doctrine controls this case with respect to (1) the ligature and (7) the clothing because this Court's analysis in Swearingen Iheld that, even if exculpatory results were obtained as to those items, that evidence would not overcome the weight of the evidence establishing Swearingen's guilt. As to (2) the pantyhose and (6) the cigarette butts, I conclude, as explained in Section D below, that those items are not controlled by the doctrine on the law of the case.

B. (3) The Hair Evidence

The DNA testing on the hair evidence requested in the instant proceedings was never before requested in the motions discussed in Swearingen Ior Swearingen II,or in any other motion for DNA testing. In his supplemented Chapter 64 motion, Swearingen requests testing of certain hair collected from the victim's clothing, hair recovered from the victim's body, and hair recovered from a hairbrush found near the victim's body. These are entirely new requests that we have not previously ruled upon, so the doctrine on the law of the case does not govern our disposition of his motion for testing as to these pieces of evidence. The State contends that none of this hair is in an appropriate condition for testing because it has not been determined that the roots are intact. However, Nasir's affidavit states, “Mitochondrial DNA testing can also be conducted on the shaft of the hair(s) without roots. Although mitochondrial DNA profiles are not CODIS eligible, results can be used for exclusion purposes and to compare against known samples.”

Further, the Legislature's 2011 amendments to Chapter 64 included a definition of biological material. The statute was amended to define biological material as follows: “(a) In this section, ‘biological material’: (1) means an item that is in possession of the state and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing; and (2) includes the contents of a sexual assault evidence collection kit.” Tex.Code Crim. Proc. art. 64.01(a). The previous version of the statute did not define the term biological material. According to the amended statute, the hairs collected are, by definition, biological material, so Swearingen has met his burden of proof as to the hairs. I would hold that the law-of-the-case doctrine is inapplicable to the instant requests for DNA testing on (3) the hairs.

C. (4) The Rape Kit

Swearingen did not request DNA testing of the rape kit in Swearingen Ior Swearingen II,or in any other motion for DNA testing. The law of the case, therefore, cannot apply to his request for testing as to that item. Surprisingly, it appears that the rape kit has never been tested at all. The rape kit apparently was not tested because the Texas Department of Public Safety reported that no semen was detected. However, Nasir's affidavit states that the rape kit should still be tested. She states, “I am aware of a number of cases in which a lab failed to detect semen but a foreign DNA profile was detected nonetheless. This may be due to levels of semen too low to be detected by the methodology employed, poor laboratory testing processes, or foreign DNA from biological material other than spermatazoa (such as epithelial cells).” The capabilities for DNA testing from fifteen years ago have changed considerably as compared to what is scientifically possible today. Further, like the hair evidence, the rape kit is biological material according to the statutory definition. So, the law-of-the-case doctrine cannot apply to the rape kit, at least regarding the requirement that Swearingen must prove the existence of biological material. I would hold that the law-of-the-case doctrine is inapplicable to the instant request for DNA testing on (4) the rape kit.

D. Applicability of the Law–of–the–Case Doctrine to Certain Items

It is a fallacy to suggest that, because this Court, in Swearingen Iand Swearingen II,referred to the evidence of guilt in this case as constituting a mountain of evidence when comparing it to Swearingen's requests for DNA testing of certain items, namely (1) the ligature, (5) the fingernail scrapings, and (7) the victim's clothing, the same analysis of the evidence must identically apply to the requests for DNA testing on (2) the pantyhose, (3) the hairs, (4) the rape kit, and (6) the cigarette butts. I conclude, as explained below, that the law-of-the-case doctrine is inapplicable to the requests for DNA testing on (2) the pantyhose, (3) the hairs, (4) the rape kit, and (6) the cigarette butts because this Court has never weighed the probative value of favorable findings from that testing against the weight of the incriminating evidence establishing Swearingen's guilt.

In Swearingen I,we held that the mountain of evidence was so large that “even if we were to grant [Swearingen's] request to test all of the items proffered [he] cannot show by a preponderance of the evidence, or that there is a 51% chance, that he would not have been convicted.” Swearingen I, 303 S.W.3d at 736. That analysis pertained to (1) the ligature, (5) the fingernail scrapings, and (7) the victim's clothing. Because this Court in Swearingen Ihas already weighed the exculpatory value of favorable DNA evidence that might be obtained from those items, this Court today is bound by the law-of-the-case as to those items.

Our ruling in Swearingen IIassessed only the probative value of exculpatory fingernail scrapings, and therefore, our analysis on the comparative weight of that evidence against the evidence of Swearingen's guilt is limited to that item. There, we said, “We are not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the ‘mountain of evidence’ of the appellee's guilt.” Swearingen II, 424 S.W.3d at 38. We ruled this way because only the fingernail scrapings were left after we disposed of the other evidence under the law-of-the-case doctrine.

Unlike the items in Swearingen Iand Swearingen II,this Court has never weighed the evidence of Swearingen's guilt against any exculpatory DNA evidence that might be obtained from testing on (2) the pantyhose, (3) the hairs, (4) the rape kit, or (6) the cigarette butts. The law-of-the-case doctrine, therefore, is inapplicable as to those items.

The following chart visually demonstrates my conclusions with respect to the items to which the law-of-the-case doctrine applies and those to which it does not apply:

Having determined that the law-of-the-case doctrine applies to disallow testing of all of the items except for four items, I explain why the requirements of Chapter 64 are met with respect to (3) the hair evidence and (4) the rape kit, but not as to (2) the pantyhose or (6) the cigarette butts. Chapter 64 requires that the evidence contain biological material, that it is in a condition to be tested, that identity was an issue at trial, that the defendant would not have been convicted if favorable results had been obtained by DNA testing, and that the convicted person is not filing the motion to unreasonably delay execution. Tex.Code Crim. Proc. art. 64.03.

A. The Hair Evidence and the Rape Kit All of these requirements are met in this case for the hair evidence and the rape kit. As discussed above, the applicable statute now defines the hair evidence and rape kit as per se biological material. See id.art. 64.01(a). The convicting court made a finding of fact that the hair evidence and rape kit remain in a condition to be tested, and the record supports that determination. On appeal, the State has presented a minimal challenge to the testing of these items, stating that the “existence of a sexual assault collection kit and hairs found on Ms. Trotter's clothing has always been known to the parties, and [Swearingen] could have requested DNA testing of those items at any time.” But a defendant's failure to request testing of an item earlier is no longer a part of the applicable statute, and it can no longer constitute a basis for rejecting a request for testing. Swearingen II, 424 S.W.3d at 37. I would defer to the convicting court's fact finding that the items remain available in a suitable condition for testing.

A movant must show that identity was an issue at trial. No one disputes that Swearingen meets this requirement.

With respect to the requirement that he show by a preponderance of the evidence that he would not have been convicted if favorable DNA results from the items that he now requests be tested had been obtained at trial, I conclude that Swearingen satisfies this requirement as to the hairs and the rape kit. See Tex.Code Crim. Proc.art. 64.03(a)(2)(A). This Court's majority opinion suggests that, because our opinions in Swearingen Iand Swearingen IIheld that Swearingen could not overcome the mountain of evidence in those appeals, it necessarily follows that he would be similarly unable to do so here. But, as explained above, the items requested in Swearingen Iand Swearingen IIare not the same as the ones requested here. It is true that this Court's previous rulings have detailed the mountain of evidence against Swearingen in holding that exculpatory DNA results would not have made a difference in his conviction. But a DNA test from a rape kit conclusively showing that the victim had sexual intercourse with another male within a few hours of her murder, and DNA results showing that hair on and near her body belonged to another person, when viewed in combination with the evidence that was introduced at Swearingen's trial that the complainant had another person's DNA under her fingernails, would establish by a preponderance of the evidence that the jury would have acquitted him. It should not be forgotten that the mountain of evidence is circumstantial in nature, with the exception of the testimony of a jailhouse snitch and a letter written by Swearingen with details of the crime that, according to him, were in the autopsy report. The most incriminating circumstantial evidence linking Swearingen to violence against Trotter is the evidence that the pantyhose remnant found in his trailer, which had DNA from his wife and him, matched the other part of the pantyhose that was used as the ligature to kill Trotter, and police recovered from inside his truck two hairs matching Trotter's DNA profile that appeared as if they had been forcibly removed. I agree that all of the circumstantial evidence introduced by the State at Swearingen's trial strongly connects him to Trotter at some point prior to her death, and it is powerful evidence of Swearingen's guilt. But its persuasive value would be greatly undermined by new DNA evidence indicating that the rape kit and the hairs found on and near the victim's body contained a DNA profile inconsistent with Swearingen's DNA profile, particularly when fingernail scrapings also did not match Swearingen's DNA profile.

Finally, Chapter 64 requires that the movant show “by a preponderance of the evidence that the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.” Id.art. 64.03(a)(2)(B). In Swearingen I,this Court upheld the trial court's determination that his motion was filed for purposes of delay. However, under the statute as it existed then, it was permissible to hold it against the defendant that he had not sought testing of the items earlier. Swearingen I, 303 S.W.3d at 736. Under the amended statute that applies here, it is improper to consider a defendant's failure to request the testing sooner. Furthermore, unlike the situation before us in Swearingen I,here the convicting court has recommended DNA testing and has made a factual finding that Swearingen has not filed this motion for purposes of delaying his execution. I would defer to that determination and hold that Swearingen's current motion is not filed for purposes of delay.

B. The Pantyhose and the Cigarette Butts

Although I conclude that the doctrine on the law of the case cannot be used as a proper basis for denying DNA testing on (2) the pantyhose and (6) the cigarette butts, I reach the same ultimate conclusion as this Court's majority opinion that DNA testing must be denied as to those items. Even if exculpatory results were obtained from the pantyhose, those results would not, by a preponderance of the evidence, show that the jury would have reached a different verdict in this case, in light of the fact that the pantyhose remnant was found in Swearingen's trailer, it contained DNA matching his and his wife's DNA profiles, and it matched the other part of the pantyhose that was used as the ligature to kill Trotter. Furthermore, even if exculpatory results were obtained from the cigarette butts, those results would not, by a preponderance of the evidence, show that the jury would have reached a different verdict in this case, given the testimony suggesting that the cigarette butts had been left by individuals who found the victim's body, and given that the victim's body was recovered after being outdoors for an extended period of time. In light of the slight probative value of any favorable results that might be obtained from testing on the pantyhose and the cigarettes, I cannot conclude that such results, by a preponderance of the evidence, would have affected the jury's decision, and thus I agree that testing is not required as to those items.

IV. Conclusion

The horrific nature of this crime cries for justice against the guilty person, but that punishment has yet to occur, in part, because of the State's persistence in challenging the trial court's orders granting DNA testing in this case. Given that Swearingen will be executed for this crime, can anyone rationally argue that the rape kit and hairs should not be tested when there is only circumstantial evidence of guilt, even if it is a mountain of it, and testimony from a jailhouse snitch? I would hold that DNA testing should be conducted on the rape kit and hair evidence. Therefore, I respectfully dissent from the Court's reversal of the trial court's order granting Swearingen's motion for post-conviction DNA testing.