State v. Swearingen
NOS. AP-77,043 & AP-77,044
Case Summary written by Jeryn Crabb, Staff Member.
JUDGE KEASLER delivered the opinion of the court.
Capital defendant, Larry Swearingen, filed a fifth motion under Chapter 64 of the Texas Code of Criminal Procedure in which he requested post-conviction DNA testing of several items including: 1) fingernail scrapings from the victim’s hand, 2) ligature used to strangle the victim, 3) pantyhose comprising the other half of the ligature, 4) cigarette butts found near the body, 5) the victim’s clothing, and 6) hairs collected from the various items. The trial court granted Swearingen’s request for post-conviction testing and a conditional order for the release of evidence for preliminary testing to determine whether the evidence contained biological material. The State appealed the decision and also challenged the validity of the conditional order.
Issues: Was the trial courts decision to grant Swearingen’s request for post-conviction DNA testing correct? Could the State appeal the validity of the conditional granting of the motion to release evidence?
Under Chapter 64, a convicted person may submit a motion for forensic DNA testing of evidence containing biological manner only if five requirements are met. These conditions include:
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 aspect,
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 not been obtained through DNA testing, and
5) the convicted person establishes by a preponderance of the evidence that the request for the proposed DNA testing is not made to unreasonably delay the execution of the sentence or administration of justice.
Chapter 64 motions are also subject to the “law of the case” doctrine. This doctrine directs that when facts and legal issues are virtually identical, they should be controlled by an appellate court’s previous resolution.
The court’s previous 2010 and 2014 opinions reversed the granting of review of DNA evidence items one through five. The 2010 opinion the court noted that the evidence of Swearingen’s guilt was overwhelming and that even if the requested motion was granted, he could not have shown by a preponderance of the evidence that he would not have been convicted. In the 2014 opinion, the court determined that the law of the case doctrine ruled and that it was an error to grant the motion. In the 2014 opinion, the court also noted that Swearingen was not entitled to DNA testing of the fingernail scrapings because the judges were not persuaded that if the DNA in the fingernail scrapings belonged to another person, it would overcome the amount of evidence in favor of Swearingen’s guilt. The court determined the law of case doctrine controlled here and that there was no change in facts that would preclude a decision different than reversing the granting of a motion requesting DNA testing.
The trial judge found the 2010 holdings did not apply because Swearingen’s current request included additional probative evidence such as the rape kit, hair evidence, and cigarette butts. The trial judge erred in this decision because Swearingen sought testing of the cigarette butts in both 2010 and 2014. Also, the court determined that even with the presence of the rape kit and hair evidence the current request should not be resolved any differently than the 2010 and 2014 decisions because Swearingen still could not establish by a preponderance of the evidence that he would not have been convicted. Because of these reasons, the court reversed and remanded the trial court’s order granting DNA testing under Chapter 64.
The court dismissed the State’s appeal challenging the validity of the conditional order releasing evidence for testing. In a prior decision, State v. Patrick, 86 S.W. 3d 592, 594 (Tex. Crim. App. 2002), the court determined that the State could not appeal a judge’s order granting testing that was not based on Chapter 64. The proper avenue to contest the order was a writ of mandamus. The State did not request a writ of mandamus in this case, so the court dismissed the appeal.
JUDGE YEARY, concurring and dissenting.
Judge Yeary joined in disposing the appeal challenging the validity of the conditional motion to release DNA. The judge also determined that there was no change in the law or facts to preclude the application of the law of the case doctrine to the ligature, cigarette butts, and victim’s clothing. However, the Judge determined that the law of case doctrine could not be used in a piecemeal fashion to exclude individual pieces of evidence, namely the fingernail scrapings, rape kit, and hair. The judge said the court should have measured the mountain of evidence against Swearingen against the exculpatory inferences that would flow from DNA testing that could possibly show third party DNA evidence on the fingernail scrapings, rape kit, and hair, considered together. The judge determined that had the fingernail scrapings, rape kit, and hairs been tested for DNA, been used together, and shown the presence of a third person’s DNA, at least one juror might have had reasonable doubt as to Swearingen’s involvement in the victim’s abduction, sexual assault, and murder.
JUDGE ALCALA, dissenting.
Judge Alcala determined 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 the offense could by a preponderance of the evidence show that Swearingen would not have been convicted. Judge Alcala determined that because the facts were not virtually identical, the law of case doctrine was not applicable to the pantyhose, the hair evidence, the rape kit, and the cigarette butts. Despite this, the judge determined that the pantyhose and the cigarette butts would not meet the requirements for DNA testing. The motion must be denied on those items because even if exculpatory evidence were obtained from the items, it would not be enough to suggest that the jury would have reached a different verdict. Judge Alcala determined that new DNA evidence indicating that the rape kit and the hairs found on and near the victim’s body containing DNA that is not Swearingen’s, particularly when fingernail scrapings also did not match Swearingen’s profile, would be particularly compelling and could undermine the mountain of evidence against Swearingen. Because of this, Judge Alcala held that DNA testing should be conducted on the rape kit and the hair evidence.