# IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N O . A P - 7 7 , 0 2 0

THE S TATE O F TEXAS

V. LARRY RA Y SWEARINGEN, A ppellee

O N D I R E C T A P P E A L F ROM THE 9th JUDICIAL DISTRICT COURT O F

MONTG OMERY COUNTY

W omack , J., delive red the opinion of the Court in w hich Keller, P.J., M eye rs, Price, Keasler, Herv ey, Coc hran, and Alcala, JJ. joined. J ohnson, J., conc urred.

The a ppellee, L arr

y Ray Swear inge n, was c onvicted in 2000 of the c apital murder of Melissa Trotter a

nd sentenc ed to dea th. We affirme d the judg ment and sente nce. He then f iled 1



## seven a pplications for wr its of habea s corpus, whic h wer e denie d. Her e, the State a ppeals the

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decision of the tr ial court to g rant the a ppellee’ s fourth Article 64 motion for DNA testing

. I n 2 

## this appeal, a s in a prior a ction, the appe llee has not e stablished that biologica l evidence exis ts or that, wher e it does, exculpatory test results would have a ffe cted his trial. We shall reve rse the trial court’ s order

. Background F acts The victim, Melissa Trotter , disappea red on D ece mber 8, 1998, a fter la st being seen w ith the appe llee. On De cembe r 11, 1998, the a ppellee w as ar

rested on unr elated c harg es. On January 2, 1999, hunters found Tr otter’s de composing body in the Sam Houston National For est. The appellee was c onvicted of he r murder primarily on circ umstantial evidence . We have summarized this evidence pr eviously :

On the eve ning of

Dec ember

7, 1998, two of the a

ppellee’ s acqua intances, the Foste rs, witnessed a

phone conve rsation in which [the appellee ] arrang ed for a lunch meeting with a g irl at a librar y the following day , and the a ppellee the n told the Foste rs that the g irl was Melissa Tr otter, a c olleg e student fr om Wi llis. Three witnesses saw the appellee sitti ng with Melissa in the Montgomer y College library

betwee n 11:30 a.m. and 1:30 p.m. the following day , Dec ember 8, 1998. Melissa’s B iology teac her sa

w her leave the Montg omery

College library with a male shortly

afte r 1:30 p.m. that day

. Melissa’s ca

r re mained in the Montg omery College parking

lot following her disappe ara

nce on D ece mber 8, 1998. At 2:05 p.m. on Dece mber 8, 1998, [the appellee ] called Sarah Sea rle a nd said that he wa s at lunch with a fr iend. Sometime around 3:00 p.m. on Dec ember 8, 1998, [t he appe llee’s] landlord saw [the appe llee’s] truck leaving f rom behind his home.

T h e S t a t e a r g u e s t h a t ( 1 ) t h e t r i a l c o u r t e r r e d i n f i n d i n g t h a t t h e a p p e l l e e w o u l d n o t h a v e b e e n c o n v i c t e d i f 2 e x c u l p a t o r y r e s u l t s f

r o m t h i s t e s t i n g w e r e a v a i l a b l e a t h i s t r i a l ; ( 2 ) t h e t r i a l c o u r t e r r e d i n i g n o r i n g o u r p r e v i o u s d e c i s i o n o n t h e s a m e i s s u e s ; ( 3 ) t h e t r i a l c o u r t e r r e d b y f i n d i n g t h a t t h e a p p e l l e e h a d s h o w n t h a t “ b i o l o g i c a l e v i d e n c e ” e x i s t s o n t h e i t e m s h e s e e k s t o h a v e t e s t e d ; ( 4 ) t h e t r i a l c o u r t e r r e d i n f i n d i n g t h a t t h e a p p e l l e e ’ s m o t i o n w a s n o t m a d e t o u n d u l y d e l a y h i s e x e c u t i o n ; ( 5 ) t h e t r i a l c o u r t e r r e d i n f i n d i n g t h a t t h e e v i d e n c e h a d b e e n s u b j e c t e d t o a s u f f i c i e n t c h a i n o f c u s t o d y t o s h o w a l a c k o f t a m p e r i n g ; ( 6 ) t h e t r i a l c o u r t e r r e d i n f i n d i n g t h e e v i d e n c e h a d b e e n s u b j e c t e d t o a c h a i n o f c u s t o d y s u f f i c i e n t t o e s t a b l i s h i t s i n t e g r i t y ; ( 7 ) t h e t r i a l c o u r t e r r e d i n r e q u i r i n g r e t e s t i n g o f f i n g e r n a i l s c r a p i n g s .

## 3 At 3:03 p.m. on Dece mber 8, 1998, [the appellee ] pl ace d a ce ll phone call that utiliz ed a c ell tower ne ar F M 1097 in W illis , Texas, which would be consistent with [ the appe llee] driving f rom his home to the Sam Houston National For est. [The appellee ’s] wife testified that she f ound their home in disarr ay on the evening of De cembe r 8, 1998, but none of the Swear inge ns’ prope rty was missing. [The appellee ’s] wife observe d Melissa’s cig are ttes and lig hter in [the appellee ’s] house that evening , and those items wer e subseque ntly rec overe d from [t he appe llee’s] home during the investig ation. Hair a nd fiber e vidence , as we ll as other phy sical evide nce, show ed that Melissa had be en in [the appellee ’s] car a nd his home on the day

of her disappea ranc e. [The appellee ] filed a burg lary repor t falsely claiming that he had be en out of town and his home wa s broken into on the day of Melissa’s disappe ara

nce. Be tween the time of Melissa’s disappe ara nce a nd [t he appe llee’s] arr est, [t he appe llee] told t wo ac quaintance s on two differ ent occ asions that he believe d police would be a fter him. When the Foster s hear d that Melissa Trotter w as missing on De cembe r 9, 1998, they

contac ted [the appellee ], who claimed he did not reme mber the la st name of the g irl with whom he had met the da y befor e. When Mrs. Foster

told [ the appe llee] that she rec alled him say ing the last name wa s “Trotter ,” and tha t a g irl named Melissa Tr otter wa s now missing, the phone we nt dead. [The appellee ] l ed a Sher iff’s de puty on a hig h speed c hase. Following [t he appe llee’s] arr est, law e nforc ement author ities observed and photog raphe d red ma rks on [the appellee ’s] neck, che ek, and ba ck. On Dec ember

17, 1998, two neig hbors of [the appellee ’s] mot her a nd stepfathe r collec ted numerous piec es of torn pa per f rom along their stree t, which turned out to be Melissa Tr otter’s c lass schedule and some he alth insurance paper work Melissa’ s father

had g iven to her. Melissa’s body

was discove red in a

n are a of the Sam Houston National For est with which [the appellee ] would have bee n familiar f rom previous time spent there

. Melissa’s body

showed sig ns of sig nificant de composition when it was discovere d in the woods 25 day s after her disappe ara

nce. The lig ature found ar ound Melissa’s nec k matched the rema inder of a pair of panty hose found within [the appellee ’s] home. The Ha rris Country

Chief Medica l Ex aminer te stified that during the dige stive proce ss, a per son’s stomach will usually not empty

in less than two hours, and a

ny food within the stomach at de ath will remain ther e. The c ontents of Melissa’s stomach a t the autopsy , which included w hat appea red to be chicke n and a f

renc h fry -like for

m of potato, wer e consistent with

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the tater tots she had ea ten at Montg omery College shortly

befor e lea

ving w ith [t he appe llee] and the Chicken Mc Nug g ets she and [the appe llee] had appa rently purcha sed at the ne arby

McDona ld’s on the day

of her disappea ranc e. Whil e in jail, [t he appe llee] attempted to cre ate a n exculpatory

letter written in Spanish in which he cla imed to be someone e lse who had know ledg e of Melissa’s murder

. Wit hin that letter, [the appellee ] detailed specific s of the off ense tha t acc urate ly

corr oborate d the phy sical and me dical evide nce in the c ase. Whil e in jail awa iting trial, [the appellee ] t old a ce ll mate that he had committed the capital murde r and his only objective wa s to escape the dea th penalty

. 3 

## Law of T he Case Doc trine The a ppellee is see king to have DNA testing pe rfor med on seve ral piec es of e vidence : the panty hose leg used to strang le the victim, the other le g of the pa nty hose found a t the appellee ’s home, four c iga

rette butts re cover ed nea

r the victim’s re mains, various piec es of the vic tim’s clothing, a

nd scra pings f rom under the victim’s fing erna ils. I n 2010, we r eviewe d another Article 64 motion from the a ppellee w hich re quested testing of the fing erna il scraping s, the liga ture, a nd the victim’s clothes (the c iga rette butts wer e also consider ed in a se para te, pre vious moti on). We sustained the trial c ourt’s dec ision to deny testing on tha t motion because the appellee could not establish that any of the piec es of e vidence

wer e not tested throug h no fault of his own, that ne w technolog y would lead to more acc urate or probative r esults (in reg ards to the e vidence that had alr eady been te sted), that the e vidence contained biolog ical mater ial, and that ther e wa s a 51% c hance or hig her tha t he would have been acquitted ha d any

exculpatory

results bee n available at trial. 4

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The State a

rg ues (a mong othe r thing s) that our 2010 re solution of these issues is dispositi ve of the appellee ’s cur rent motion under the la

w of the c ase doc trine. The “ law of the case ” doctr ine provides that a n appellate court’s r esolution of questions of law in a

previous appe al ar e binding in subsequent appe als conc erning the same issue. I n 5 

## other wor ds, when the f

acts a nd leg al issues are virtually identical, they

should be controlled by an appe llate cour

t’s previous re solution. This is a court-ma de doctr ine desig ned to promote 6 

## judicial consistency

and ef ficienc y . The a ppellee, how ever , arg ues that since A rticle 64 wa s amende d in 2011, the law has chang ed and he is entitled to another re view of the merits. Although the law has be en ame nded, these amendments did not aff ect a ll of our pre vious deter minations. I n the instance s where the amendme nt did not im pact our analy sis, the trial court

err ed by failing to adher e to our pre vious determinations.

Chapter 64 M otions Gener ally Chapter 64 of

the Code of Criminal Proce dure a llows a convicte d person to “submit to the convicting court a

motion for fore nsic DNA te sting of e vidence containing biologica l materia l.” This motion m ay reque st testing of e vidence that was sec ured in re lation to the 7 

## offe nse comprising the under ly ing c onviction and was in the posse ssion of the State during the trial but either wa s not previously tested or, a lthough pr eviously tested, ca n be tested w ith newer

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techniques w hich ca

n provide more acc urate and proba tive results. A convicting court may order 8 

## testing if the evidenc e in question “(i) still exis ts and is in a condition making D NA testing possible; and (ii) has be en subjec ted to a cha in of custody sufficie nt to establish it has not been substitut ed, tamper ed with, re place d, or alter ed in any materia l respec t; and identity was or is a

n issue in the case .” Fur

ther, the c onvicted per son has the burde n of showing by a pre pondera

nce 9 

## of the e vidence that “the pe rson would not have be en convic ted if exculpatory results had be en obtained throug h DNA testing ; and the re quest for the proposed DN A testing is not made to

unrea sonably

delay the execution of sentenc e....” 1 0 

## Article 64 ha s chang ed in two major wa y s since the a

ppellee’ s last round of DNA reque sts. First, the leg islature adde d a def inition of “biologica l material.” Now, biolog ical materia l means “a

n item in the possession of the state and tha t contains blood, semen, hair , saliva, skin tissue or ce lls, finge rnail scr aping s, bone, bodily fluids, or other identifia

ble biologica l evidence ....” Second, the leg islature eliminated a require ment that the lack of 1 1 

## previous testing had not bee n the convicte d person’ s fault. 1 2 

## “Containin g Biologi cal Mat erial” As a thre shold matter, we a ddress the statute’ s require ment that the evidenc e re quested to be tested c ontain “biolog ical mater ial.” I n our pre vious decision, we he ld that the appellee had

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not shown that most of the evidenc e he now wants tested c ontained biolog ical mater ial. The appellee ’s motion relies on the first leg islative chang e (de fining biologica l material) to support his assertion that the law of the ca se is not disposit ive. He c laims that the amendment c orre cted a problem with the statute that we identified in our last opinion. We stated: Article 64.01( a) r eads in pa rt, “A c onvicted per son may submit t o the convicting court a motion for fore nsic DNA te sting of e vidence containing biologica l materia l” (e mphasis added) . A literal re ading of the statute une quivocally mandates tha t all evidence to be tested must first be prove n to contain biologic al materia l. When interpreting a statute, this court is limited to it s plain meaning unless the lang uag e is ambig uous or its plain meaning leads to absur d results that the L eg islature could not possibly have intende d. Be cause Chapter 64 doe s not descr ibe a method f

or dete rmining the exis tence of biolog ical mater ial, a plain rea ding of

the statute, as [appellee ] poi nts out, could lead to the depr ivation of DNA testing in the rar e ca se simply beca use of the ina

bility to asce rtain whe ther or not biologic al mater ial exis ts. As an appe llate cour t, we must g ive ef

fec t to the plain meaning of the statute. I t is incumbent upon the L eg islature, not this Court, to provide statutory

means, if a

ppropriate , for de termining whether the def endant meets the burde n of showing that evidenc e conta ins biologica l material. How ever , this court has held that a

mere asser

tion or a g ener al claim that existence of biologica l material is proba ble will fail to satisfy

the [appellee’ s] burden. 1 3 

## The re cent a

mendments have not fix ed this problem in most cases. No pa rt of the a mendments addre sses a method for

deter mining the e x istence of

biologica l material. I n this case, the only

eff ect the a mendments had wa s to relieve the appellee ’s burde n as to the fing erna il scraping s. Be cause fing erna il scraping s are now def ined as biolog ical mater ial perse , the appe llee no long er ne eds to show that they contain biolog ical mater ial. Howeve r, the appellee still cannot pr ove the e x istence of biologica l material in the c ase of the liga ture, the other ha lf of the pa

nty hose, the c iga

rette butts, or the vic tim’s clothing. The most rece nt

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amendments do not af

fec t our previous a

naly sis in thos e ca ses, and the la w-of- the-c ase doc trine controls. I n support of his motion, the appellee of fer s the aff

idavit of Huma Na sir, a DNA analy st at Cellmark F orensics. H e cla ims that even if the law has not cha

ng ed, Ms. Nasr ’s af

fidavit chang es the fa cts. Ms. Nasr’ s aff idavit states that touch-DN A from the vic tim’s murderer would likely be conta ined on the panty hose lig ature , the victim’s clothing, a nd the cig are tte butts. Howeve r, we have e x plicitly held that appe llee must prove biologica l material e x ists and not that it is m ere ly

probable

. This burden wa s neither c hang ed by the leg islature’s a

mendments nor met 1 4 

## by Ms. Nasir’s a ffidavit. Consequently , the appe llee is not entitled to testing on the victim’s clothing, the cig are tte butts, or the liga ture. Since we ha

ve pre viously

held that, as a

matter of la

w, the appe llee had not met his burden of proof a s to the exi stence of biolog ical mater ial, and bec ause the leg islature’s amendment did not alter

this result ex cept in the c ase of the fing erna il scraping s, the trial cour t

err ed under

the law of

the ca se doctrine when it disreg arde d our pre vious holding. The a ppellee 1 5 

## is not entitl ed to testing of the lig ature , the victim’s clothing, or the cig are tte butts.

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B e c a u s e t h e c i g a r e t t e b u t t s w e r e n o t m e n t i o n e d i n o u r p u b l i s h e d o p i n i o n , w e n o t e t h a t , e v e n w i t h o u t t h e 15 l a w o f t h e c a s e d o c t r i n e , t h e t r i a l c o u r t a b u s e d i t s d i s c r e t i o n i n f i n d i n g t h e e v i d e n c e c o n t a i n e d b i o l o g i c a l m a t e r i a l

. T h e o n l y e v i d e n c e t h a t t h e c i g a r e t t e s c o n t a i n e d b i o l o g i c a l m a t e r i a l w a s M s . N a s r ’ s a f f i d a v i t s t a t i n g t h a t i t w a s
“ l i k e l y . ” O u r p r e c e d e n t i s c l e a r t h a t t h e p r e s e n c e o f b i o l o g i c a l m a t e r i a l m u s t b e p r o v e n . T h e a p p e l l e e h a s n o t d o n e s o .

## 9 F ingernail S crapings Be cause of the law -of- the-c ase doc trine and the require ment that evidenc e “c ontain biologica l material,” the only evidenc e that the a

ppellee c an show to conta in biologica l materials

are the fing erna il scraping s from both of the victim’s hands. 1 6 

## As an initial matter, we must determine if the e vidence the appe llee is reque sting (1) was obtained in re lation to the underly ing of fense , (2) wa s in the possession of the State duringthe trial of the of

fense , and (3) either w as not previously subjected to DN A testing or, althoug h it was pre viously

tested, testing could produc e more acc urate and proba tive results throug h newe r technolog y . Neither

party contests the first two prong s. Be fore the orig inal trial, both the scra pings f rom the left a

nd rig ht hands wer e examined by the Texas Depa

rtment of Public Safety . I t appea rs that some of the sc raping s were tested for DNA while some wer e not. Given this mix ed re cord, w e shall assume w ithout deciding tha t the evidenc e qualifie s under this subsection. I n order to be entitled to DNA testing , the appe llee must show by a pre pondera

nce of the evidenc e (51% ) that he w ould not have bee n convicted if the exculpatory

results wer e ava ilable at trial. We have c larified tha t this requires the c onvicted per son to show that he, more likely

1 7 

## than not, would not have be en convic ted with exculpatory results. I n the past, we have he ld

T h e S t a t e a l s o a r g u e s t h a t t h e b l o o d f l e c k s c a n n o l o n g e r b e f o u n d , t h a t c h a i n o f c u s t o d y w a s n o t 16 s u f f i c i e n t f o r t e s t i n g a n y o f t h e e v i d e n c e , a n d t h a t t h e r e q u e s t i s m a d e t o u n r e a s o n a b l y d e l a y t h e s e n t e n c e . H o w e v e r , s i n c e o u r f

i n d i n g i s d i s p o s i t i v e , w e d o n o t r e a c h t h e s e o t h e r i s s u e s . S e e S m i t h v . S t a t e , 1 6 5 S

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“exculpatory

results” to mea

n only results “e x cluding [t he convic ted per son] as the donor of this materia l ....” 1 8 

## We are not persuade d that results showing the pre sence of anothe r DNA donor in the fing erna il scraping s would overc ome the “mountain of evidenc e” of the a

ppellee’ s g uilt. 1 9 

## Primarily , this is because the victim’s having encounte red a nother pe rson would not fac tually exclude the appe llee fr om having killed her. The re a re ma ny way s someone else ’s DNA c ould have e nded up in the victim’s fing erna ils. S uch re sults would not require an inf ere nce tha t the appellee would been a cquitted. Fur ther, be fore the appe llee’s tria l, DPS analy sts conducted a microscopic r eview of

the

scra pings a nd discovere d blood flakes in the f inge rnail scr aping s. Criminol og ists were a ble to

cre ate a full DNA prof

ile from those blood flake s. Both the a ppellee a nd Trotter w ere excluded as contributors of

the blood. These r esults were available at trial and pr esente d to the jury . Since the jury alre ady was a war e that an unide ntified male’s D NA wa s found under the victim’s fing erna ils, we fail to see how other suc h results would have chang ed its verdict. The jury chose to believe that the f

oreig n DNA e ither wa s contamination or that it came from outside the c ontext of the c rime. I f the jury

alre ady knew of exculpatory

results obtained fr om under the vic tim’s nails and disreg arde d them, we ha ve no re ason to believe that it would be any differ ent with reg ards to the r emainder

of the fing erna il scraping s. As to the blood itself, the appellee cannot show that new te sting would lea d to a diffe rent re sult.

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The a ppellee a rg ues that bec ause the leg islature’s a mendment re quires DNA results to be run throug h CODI S (Combined DNA I ndex S y stem), we should now c onstrue an “ exculpatory result” to mea

n DNA r esults that are not from the convic ted per son and which g ener ate a CODI S hit. The appe llee’s a

rg ument g oes too far

. A re quirement to assume tha t the results of testing wer e not only from someone other than the convic ted per son but that the other per son was a r epeat offende r (or as the a ppellee arg ued bef

ore this cour

t, a re peat of

fende r with a similar modus opera ndi), makes it har d to imag ine a c ase in whic h we would not g rant DN A testing . Such compelling DNA r esults would

cer tainly overc ome any

mountain of inculpatory

evidenc e. We believe that had the leg islature meant to so drastica lly

lower the barr ier for

Chapter 64 testing , they

would have sa id so expli citly . The statute r equire s only that the re sults be run throug h CODI S. I t does not set a standard f or exculpatory

results. Conclusion We reve rse the or der of

the trial cour

t and re mand for pr ocee dings in a ccor dance with this opinion.

Deliver ed F ebrua

ry 5, 2014. Publis h.