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Petra.
TX: LARRY RAY SWEARINGEN, Appellee
Wed Feb 5, 2014 17:08
78.35.117.101

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=25109

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP-77,020


THE STATE OF TEXAS

V.

LARRY RAY SWEARINGEN, Appellee


ON DIRECT APPEAL

FROM THE 9th JUDICIAL DISTRICT COURT OF

MONTGOMERY COUNTY

Womack, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Price, Keasler, Hervey, Cochran, and Alcala, JJ. joined. Johnson, J., concurred.


The appellee, Larry Ray Swearingen, was convicted in 2000 of the capital murder of Melissa Trotter and sentenced to death. We affirmed the judgment and sentence. (1) He then filed seven applications for writs of habeas corpus, which were denied. Here, the State appeals the decision of the trial court to grant the appellee's fourth Article 64 motion for DNA testing. (2) In this appeal, as in a prior action, the appellee has not established that biological evidence exists or that, where it does, exculpatory test results would have affected his trial. We shall reverse the trial court's order.

.......
Delivered February 5, 2014.

Publish.

1. Swearingen v. State, 101 S.W.3d 89 (2003).

2. The State argues that (1) the trial court erred in finding that the appellee would not have been convicted if exculpatory results from this testing were available at his trial; (2) the trial court erred in ignoring our previous decision on the same issues; (3) the trial court erred by finding that the appellee had shown that "biological evidence" exists on the items he seeks to have tested; (4) the trial court erred in finding that the appellee's motion was not made to unduly delay his execution; (5) the trial court erred in finding that the evidence had been subjected to a sufficient chain of custody to show a lack of tampering; (6) the trial court erred in finding the evidence had been subjected to a chain of custody sufficient to establish its integrity; (7) the trial court erred in requiring retesting of fingernail scrapings.

3. Swearingen v. State, 303 S.W.3d 728, 737-38 (Tex. Cr. App. 2010).

4. See id.

5. Carroll v. State, 101 S.W.3d 454, 461 n.35 (Tex. Cr. App. 2003); Howlett v. State, 994 S.W.2d 663, 667 (Tex. Cr. App. 1999).

6. Ware v. State, 736 S.W.2d 700, 701 (Tex. Cr. App. 1987).

7. Tex. Code Crim. Proc. art. 64.01(a-1).

8. Id., art. 64.01(b).

9. Id., art. 64.03(a)(1).

10. Id., art. 64.03(a)(2).

11. See Act of May 23, 2011, 82nd Leg., R.S., § 1, 2011 Tex. Gen. Laws 366.

12. See ibid.

13. Swearingen, 303 S.W.3d at 732.

14. See id.;Routier v. State, 273 S.W.3d 241 (Tex. Cr. App. 2008).

15. Because the cigarette butts were not mentioned in our published opinion, we note that, even without the law of the case doctrine, the trial court abused its discretion in finding the evidence contained biological material. The only evidence that the cigarettes contained biological material was Ms. Nasr's affidavit stating that it was "likely." Our precedent is clear that the presence of biological material must be proven. The appellee has not done so.

16. The State also argues that the blood flecks can no longer be found, that chain of custody was not sufficient for testing any of the evidence, and that the request is made to unreasonably delay the sentence. However, since our finding is dispositive, we do not reach these other issues.

17. See Smith v. State, 165 S.W.3d 361, 364 (Tex. Cr. App. 2005).

18. Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Cr. App. 2007).

19. Swearingen, 303 S.W.3d at 736.

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=25109



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                  • SwearingenDudley Sharp, Sat Nov 4 08:37
                    Petra: One of the strangest legal back and forths, ever, 19 years in the making.
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        • Hello Dudley long time no see hope your keeping well? I have question for you Hun I don't no much about this case I'm going over trial now. Do you think he's guilty?. What I've read so far I think he ... more
          • Sweearingen's guiltDudley Sharp, Fri Feb 7 17:21
            Kitten" The "mountain of evidence" for his guilt is the language from the appellate judges. Stick to the appellate record and not the usual BS from anti death penalty folks, eg Troy Davis.
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