State of Texas v. Swearingen, Larry Ray
2015 Tex. Crim. App. LEXIS 1147
| Tex. Crim. App. | 2015Background
- Larry Swearingen was convicted and sentenced to death for the 1998 rape and murder of Melissa Trotter; extensive circumstantial evidence at trial linked him to the crime (library meeting, pantyhose ligature matching pantyhose in his home, victim’s cigarettes found at his house, hair/fiber evidence, incriminating statements and a jailhouse confession).
- Swearingen filed multiple post-conviction Chapter 64 motions for DNA testing (2004, 2008, 2009, 2013, 2014 supplement); prior appeals resulted in denials or reversals by this Court.
- In 2014 a trial judge granted new Chapter 64 testing (fingernail scrapings, ligature/pantyhose pieces, clothing, cigarette butts, rape kit, hairs, fingernail samples) and conditionally granted preliminary release of evidence for testing of biological material.
- The Court reviews whether Chapter 64’s statutory prerequisites are satisfied (existence and condition of evidence, chain of custody, identity as an issue, preponderance showing that exculpatory results would probably have prevented conviction, and absence of dilatory motive) and applies the law‑of‑the‑case doctrine to prior rulings.
- Majority reverses the trial court’s grant of Chapter 64 testing (finding Swearingen still cannot meet the preponderance requirement given the "mountain of inculpatory evidence") and dismisses the State’s appeal of the conditional release order as not a proper appeal route.
Issues
| Issue | Plaintiff's Argument (Swearingen) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the listed items contain biological material and are suitable for DNA testing | Expert affidavit (Nasir) now states to a reasonable degree of scientific certainty that biological material is present on multiple items (pantyhose, ligature, cigarettes, clothing, rape kit, hairs) | Prior holdings and record evidence show lack of proof for some items; mere probability insufficient | Court: law‑of‑the‑case bars re‑litigation for many items; for items previously untested (rape kit, hairs) Court still finds Swearingen cannot meet the preponderance requirement; vacates testing order for items (1)–(5) and denies testing overall |
| Whether identity was an issue such that Chapter 64 testing is permissible | Identity was at issue at trial; testing could reveal third‑party DNA that would exculpate Swearingen | Identity was already addressed at trial; third‑party DNA would not necessarily negate Swearingen’s participation given circumstantial record | Court: identity was an issue but presence of third‑party DNA would not, by preponderance, have prevented conviction given overwhelming inculpatory evidence |
| Whether Swearingen proved by a preponderance that exculpatory results would likely have led to acquittal | Testing (esp. combined favorable results from rape kit, hairs, and fingernail scrapings) could show same third‑party across items and create reasonable doubt | Prior opinions: even hypothetical favorable results would not overcome the weight of inculpatory evidence; speculative consequences (confessions, denials) are insufficient | Court: Swearingen fails the preponderance requirement; majority rejects speculative inferences and denies testing; concurrence/dissent would have ordered testing of rape kit and hairs |
| Whether the State may appeal the trial court’s conditional order releasing evidence for preliminary testing | Swearingen asserts conditional release is outside Chapter 64 and only effective if Chapter 64 requirements later fail | State contends it can appeal under Article 44.01 and Chapter 64 appellate provisions | Court: dismisses State’s appeal as improper avenue; follows precedent that mandamus, not appeal, is the proper remedy for orders not grounded in Chapter 64 |
Key Cases Cited
- Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App.) (prior direct appeal affirming conviction)
- Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App. 2010) (denial of earlier Chapter 64 motion; discussed "mountain of evidence")
- State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) (applied law‑of‑the‑case to bar testing of several items; clarified burden to prove existence of biological material)
- State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002) (trial court lacks jurisdiction to order testing outside Chapter 64; mandamus is appropriate remedy)
- Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) (DNA from same unknown intruder across multiple items could more likely than not create reasonable doubt)
- Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006) (presence of another perpetrator’s DNA does not necessarily exonerate defendant if it does not negate participation)
- Carroll v. State, 101 S.W.3d 454 (Tex. Crim. App. 2003) (explains law‑of‑the‑case doctrine and when it applies)