State of Texas v. Swearingen, Larry Ray

Opinion

AP-77,043

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 11/12/2015 9:27:50 PM November 13, 2015 Accepted 11/13/2015 8:05:46 AM ABEL ACOSTA

CLERK

NO. AP-77,043

IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

__________________________________________________________________

THE STATE OF TEXAS,

Appellant,

v.

LARRY RAY SWEARINGEN,

Appellee.

__________________________________________________________________

Arising from:

Cause No. 99-11-06435-CR

IN THE DISTRICT COURT

FOR THE NINTH JUDICIAL DISTRICT MONTGOMERY COUNTY, TEXAS

__________________________________________________________________

APPELLEE LARRY RAY SWEARINGEN'S MOTION FOR REHEARING

__________________________________________________________________

BRYCE BENJET Tex. Bar. No. 24006829 The Innocence Project Attorney at Law 40 Worth Street, Suite 701 New York, New York 10013

JAMES G. RYTTING Philip Hilder Hilder & Associates, P.C. 819 Lovett Boulevard Houston, Texas 77006

Counsel for Appellee

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

District Attorney: BRETT W. LIGON District Attorney Montgomery County, Texas 207 W. Phillips, Second Floor Conroe, Texas 77301

Counsel for the State: WILLIAM J. DELMORE III Assistant District Attorney Montgomery County, Texas 207 W. Phillips, Second Floor Conroe, Texas 77301

Appellee: LARRY RAY SWEARINGEN

Counsel for Appellee: JAMES G. RYTTING Hilder & Associates, P.C. 819 Lovett Boulevard Houston, Texas 77006

BRYCE BENJET Tex. Bar. No. 24006829 The Innocence Project 40 Worth Street, Suite 701 New York, New York 10013

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

ARGUMENT ............................................................................................................. 3

I. Reliance on "Overwhelming" Evidence Ignores the Realities of DNA Testing in Criminal Cases................................................................................ 3

II. The Court's Restrictive Standard for Considering Possible Exculpatory Results Is Inconsistent with Prior Decisions and Does Not Reflect Legislative Intent.......................................................................... 6

III. No Other Jurisdiction Similarly Restricts Access to Postconviction DNA Testing. ................................................................................................. 10 IV. The Majority's Restrictive Definition of Exculpatory Results Will Bar Access to Postconviction DNA Testing in All But a Narrow Category of Cases. ......................................................................................................... 12 V. Applying the Proper Construction of Exclusionary DNA Test Results, DNA Testing Is Warranted in this Case. ....................................................... 16

CONCLUSION AND PRAYER ............................................................................. 19

ii

TABLE OF AUTHORITIES

CASES Ex parte Arledge, No. AP-76974, 2013 WL 831138 (Tex. Crim. App. Mar. 6, 2013) .............. 15

Ex parte Arledge, No. 21693, 2013 WL 11028491 (Tex. Crim. App. Feb. 11, 2013) ............... 15

Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) .................................................... 6, 7

Brady v. Maryland, 373 U.S. 83 (1963)..................................................................................... 9, 10

Commonwealth v. Conway, 14 A.3d 101 (Pa. 2011) .................................................................................. 11

Ex parte Criner, No. 36,856-01 (Tex. Crim. App. July 8, 1998) ........................................... 3, 5 Ex parte Criner, No. 87-09-00591-CR-(1) (410th Dist. Ct., Montgomery County, Tex., July 28, 2000) ............................................................................................ 3, 18

Ex parte Criner, No. 87-09-00591-CR-(1) (410th Dist. Ct., Montgomery County, Tex., Aug. 15, 2000) ............................................................................................. 3, 4 District Attorney's Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009)........................................................................................... 5 Hardin v. Commonwealth, 396 S.W.3d 909 (Ky. 2013) ........................................................................... 11

House v. Bell, 547 U.S. 518 (2006)....................................................................................... 10

Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012) .................................................. 9, 10

iii

In re Morton, 326 S.W.3d 634 (Tex. App.–Austin 2010, no pet.) .................................14, 15

Maryland v. King, 133 S.Ct. 1958 (2013)...................................................................................... 5

New Jersey v. DeMarco, 904 A.2d 797 (N.J. Super. Ct. App. Div. 2006) ............................................ 11

Ohio v. Noling, 992 N.E.2d 1095 (Ohio 2013) ....................................................................... 11

Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) ........................................................ 9

Pope v. State, 756 S.W.2d 401 (Tex. App.–Dallas 1988, pet. ref'd) .................................. 4, 5

Powers v. Tennessee, 343 S.W.3d 36 (Tenn. 2011) ...................................................................11, 12 Ex parte Pruett, No. B-01-M015-PR-B (156th Dist. Ct., Bee County, Tex., Apr. 28, 2015) ............................................................................................................ 8, 9

Raby v. State, No. AP-74,930, 2005 Tex. Crim. App. LEXIS 2194 (Tex. Crim. App. June 29, 2005) ....................................................................................7, 8, 9, 14 Robinson v. State, No. C14-87-00345-CR, 1989 WL 102335 (Tex. App.–Houston [14th Dist.] Sept. 7, 1989, pet. ref'd) ..................................................................... 4, 5

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) ................................................7, 8, 9

State v. Butler, 21 A.3d 583 (Conn. App. Ct. 2011) .............................................................. 11

State v. Swearingen, Nos. AP–77,043, AP–77,044, 2015 WL 6513883 (Tex. Crim. App. Oct. 28, 2015) .........................................................................................passim

iv

State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) ........................................................ 18

Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003) ..................................................16, 17

United States v. Sczubelek, 402 F.3d 175 (3d Cir. 2006) ............................................................................ 6

STATUTES Act of June 17, 2011, 82d Leg., R.S., ch. 278, §§ 5, 6, 2011 Tex. Sess. Law Serv. 883 (West) .............................................................................................. 8

Act of June 17, 2011, 82d Leg., R.S., ch. 366, §§ 1, 2, 3, 2011 Tex. Sess.

Law Serv. 1016 (West) ................................................................................ 8, 9 Act of May 16, 2013, 83rd Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (West)............................................................................................................. 16 Act of May 22, 2015, 84th Leg., R.S., ch. 70, §§ 1, 2, 2015 Tex. Sess. Law Serv. (West) ..................................................................................................... 9

Miss. Code Ann. § 99-39-11(10) (West Supp. 2014) .............................................. 11

N.Y. Crim. Proc. Law § 440.30(1-a)(c) (McKinney Supp. 2015)........................... 11

S.J. of Tex., 80th Leg., R.S. 300 (2007) (Senate Resolution 341) ............................ 4 Tex. Code Crim. Proc. Ann. art. 38.43(i) (West Supp. 2015) ................................... 9

Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (West Supp. 2015) ...............passim

OTHER AUTHORITIES Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward 175-76 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf ................................ 17 Exonerated: Cases by the numbers, CNN, http:// www.cnn.com/2013/12/04/justice/prisoner-exonerations-facts- innocence-project/ (last visited Nov. 11, 2015)............................................. 10

v

Jessica Hamel & Ryan Murphy, Search: Pardons by Gov. Rick Perry, Texas Tribune (Aug. 6, 2014), http://www.texastribune.org/library/data/search-texas-governor-rickperry -pardons/ .................................................................................................. 4

Rhonda Williams, PhD & Roger Kahn, PhD, Forensic DNA Collection at Death Scenes: A Pictorial Guide 1 (2014) ................................................ 5, 13

Terry Melton, Motochondiral DNA Examination of Cold Case Crime Scene Hairs, Forensic Magazine (April 1, 2009) (http://www.forensicmag.com/articles/2009/04/mitochondrial-dnaexamination -cold-case-crime-scene-hairs) .................................................... 13

vi

STATEMENT OF THE CASE

Appellee Larry Ray Swearingen has sought postconviction DNA testing for

over a decade to prove his innocence of the capital murder of Mellissa Trotter. A

Majority of this Court now reverses the judgment of the court of conviction which

granted DNA testing on probative physical evidence that would unquestionably

have been tested if Ms. Trotter's murder were investigated today. While Appellee

disagrees with the Majority for many of the same reasons discussed in the

dissenting opinions, this Motion for Rehearing focuses on the controlling issue of

the Majority's erroneous construction of the statutory consideration of potential

"exculpatory results" of DNA testing. See Tex. Code Crim. Proc. Ann.

art. 64.03(a)(2)(A) (West Supp. 2015).

The Majority Opinion bars a trial judge from considering the known fact that

DNA testing can identify with certainty a person whose biological material is

present on the victim and at the crime scene. See Majority Opinion, 2015 WL

6513883, at *4–5 (attached as Exhibit A). Disregarding this central strength of

DNA technology, the Majority confines the universe of potential exculpatory

results considered in determining the impact of DNA testing to the mere exclusion

of the convicted person as the source of biological evidence. See id. If this

artificial and arbitrary definition stands, it will eliminate the broad access to DNA

2

testing that has been the centerpiece of recent criminal justice reforms which place

Texas at the forefront of jurisdictions confronting wrongful convictions.

By rejecting the very assumptions used every day in the course of forensic

criminal investigation, the Majority's standard will prevent access to DNA testing

in large categories of cases where the right to such testing should be

uncontroversial and where this Court has recognized that such testing proved

innocence by clear and convincing evidence. Because this is not what our

Legislature intended, this Court should grant rehearing to consider the case under a

standard consistent with the intent of Chapter 64 of the Texas Code of Criminal

Procedure, reflecting the now universal norm of broad access to postconviction

DNA testing.

3

ARGUMENT

I. Reliance on "Overwhelming" Evidence Ignores the Realities of DNA Testing in Criminal Cases. Although the Majority's reliance on "overwhelming" evidence of guilt (or its

description of a "mountain of inculpatory evidence") has a certain rhetorical

appeal, Majority Opinion, 2015 WL 6513883, at *3–4 & n.17 (citations omitted),

this characterization describes almost every criminal conviction. Proof of guilt

beyond a reasonable doubt is a prerequisite for criminal convictions, leaving few

(if any) in which a judge might not reasonably consider the inculpatory evidence

"overwhelming." And one need not leave Montgomery County to learn that a

finding of "overwhelming" evidence of guilt has not proven to be an accurate

predictor of the results of a DNA test. In the similar murder case of Roy Criner,

this Court denied habeas relief citing overwhelming direct evidence of his guilt.

But Mr. Criner was later pardoned after additional DNA testing showed he was not

the murderer. See Ex parte Criner, No. 36,856-01, at 1 (Tex. Crim. App. July 8,

1998) (discounting impact of DNA exclusion from semen in murder victim, citing

"overwhelming" direct evidence of guilt); Ex parte Criner, No. 87-09-00591-CR-

(1) (410th Dist. Ct., Montgomery County, Tex., July 28, 2000), available at

http://www.mctx.org/courts/410th_district_court/docs/criner1.pdf (recommending

a full and complete pardon for Roy Criner after DNA from semen matched DNA

from cigarette butt); Ex parte Criner, No. 87-09-00591-CR-(1) (410th Dist. Ct.,

4

Montgomery County, Tex., Aug. 15, 2000), available at http://www.mctx.org/

courts/410th_district_court/docs/criner.pdf (releasing Criner with an apology).

Texas courts have likewise found "overwhelming" evidence of guilt in the

cases of David Pope and Anthony Robinson even though DNA testing later proved

them innocent. David Pope was pardoned for innocence despite a prior finding

that the admission of "voiceprint" technology was harmless in light of the

"overwhelming evidence" of guilt. See Pope v. State, 756 S.W.2d 401, 403–04

(Tex. App.—Dallas 1988, pet. ref'd) ("overwhelming evidence against appellant"

included eyewitness identification and defendant's possession of knife and clothing

matching victim's description); Jessica Hamel & Ryan Murphy, Search: Pardons

by Gov. Rick Perry, Tex. Trib. (Aug. 6, 2014), http://www.texastribune.org/library/

data/search-texas-governor-rick-perry-pardons/ (pardon for innocence granted to

David Pope). Anthony Robinson was pardoned based on DNA evidence despite a

prior finding that errors at his trial were harmless in light of "overwhelming

evidence of appellant's guilt" including the victim's identification made within 15

minutes of her reporting the assault and Robinson's possession of a loaded gun at

the time of his arrest. See Robinson v. State, No. C14-87-00345-CR, 1989 WL

102335, at *1, *7 (Tex. App.—Houston [14th Dist.] Sept. 7, 1989, pet. ref'd); S.J.

of Tex., 80th Leg., R.S. 300, 300–01 (2007) (Senate Resolution acknowledging

Robinson's pardon based on DNA evidence).

5

As demonstrated by the outcomes in Criner, Pope, and Robinson, the

Majority's citation to "overwhelming" evidence ignores the exceptional power of

DNA testing in the forensic context to overcome such evidence, not simply by

excluding a suspect, but also by identifying the actual source of the DNA. See

Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009)

("DNA testing has an unparalleled ability both to exonerate the wrongly convicted

and to identify the guilty."). In fact, a recently published best practices guide by

Harris County Institute of Forensic Sciences (HCIFS) lab director Dr. Roger Kahn

and HCIFS's DNA Trace Evidence Collection team leader Dr. Rhonda Williams on

the collection of forensic DNA evidence also emphasizes the role of DNA

databases as a central component of modern forensic DNA testing. See Rhonda

Williams, PhD & Roger Kahn, PhD, Forensic DNA Collection at Death Scenes: A

Pictorial Guide 1 (2014) (HCIFS expanded evidence it routinely tests because

"touched objects often provided full or nearly full DNA profiles that matched an

offender in CODIS," resulting in HCIFS leading the State in "the total number of

CODIS offender matches") (attached as Exhibit B). Federal courts have also cited

the importance of using DNA databases in the postconviction context. See

Maryland v. King, 133 S.Ct. 1958, 1974 (2013) (identification of arrestee "as

perpetrator of some heinous crime may have the salutary effect of freeing a person

6

wrongfully imprisoned for the same offense"); United States v. Sczubelek, 402 F.3d

175, 1985 (3rd Cir. 2006).

Based on the universal understanding of how forensic DNA testing works,

any accurate assessment of the potential exculpatory results from such testing must

include consideration of the following potential results:

• Finding no DNA;

• Detecting an unknown DNA profile on a single piece of evidence;

• Detecting the same (or different) DNA profiles on multiple pieces of evidence across a crime scene; and • Identifying the source of foreign DNA profile detected on single or multiple samples either by one-to-one comparison to a known suspect or through a match from a CODIS database search.

By contrast, the standard articulated by the Majority places blinders on Texas

judges and denies courts the ability to consider the most persuasive category of

proof of innocence—the identification of a guilty third party. This drastically

increases the risk of wrongful imprisonment and execution.

II. The Court's Restrictive Standard for Considering Possible Exculpatory Results Is Inconsistent with Prior Decisions and Does Not Reflect Legislative Intent. This Court's jurisprudence on the definition of "exculpatory results" is

unsettled and has led to inconsistent applications of the Chapter 64 gateway to

postconviction DNA testing. The Majority's limited definition of "exculpatory

results" was adopted from the Court's 2007 holding in Blacklock v. State, in which

7

the Court granted DNA testing based on Blacklock's 2005 motion contending that

his exclusion from DNA on a rape kit would prove innocence. See 235 S.W.3d

231, 232 (Tex. Crim. App. 2007). Although the question of a one-to-one

comparison or CODIS search was not before the Court, the Majority has seized on

the language in Blacklock to prohibit any "speculation" beyond the mere exclusion

of the convicted person, Majority Opinion, 2015 WL 6513883, at *3–4 & n.13.

The Majority defends its restrictive standard by claiming that the Legislature did

not intend a low threshold for access to DNA testing. Id. at 10, n.17.

But this Court's prior decisions and the Legislature's consistent broadening

of access to DNA testing under Chapter 64 contradicts the Majority's analysis.

This Court has previously engaged in a more robust analysis of the potential

"exculpatory results" under Chapter 64 that more closely resembles the actual use

of forensic DNA testing in criminal investigation. In Routier v. State, 273 S.W.3d

241 (Tex. Crim. App. 2008), this Court held that the analysis of exculpatory DNA

results includes both (1) excluding the convicted person and (2) identifying a

consistent DNA profile on multiple items of evidence.

Similarly, Judge Johnson's majority opinion in Raby v. State, No. AP-

74,930, 2005 Tex. Crim. App. LEXIS 2194 (Tex. Crim. App. June 29, 2005)

(unpublished) reversed the trial court's denial of DNA testing, factoring in the

potential for comparison of a DNA profile to known suspects as part of the

8

exculpatory results analysis. See id. at *21 ("There are a maximum of four items to

be tested and few suspects for comparison."). The Majority's statutory

construction is also at odds with a recent order by Judge Richardson (sitting by

assignment as trial judge) granting DNA testing on tape collected from the handle

of a shank used in a prison murder. See Ex parte Pruett, No. B-01-M015-PR-B

(156th Dist. Ct., Bee County, Tex., Apr. 28, 2015). Although Judge Richardson's

reasoning is not provided in that order, it is hard to contemplate how the mere

exclusion of Pruett from the handle of a prison shank (the limit of the Court's

analysis under the Majority Opinion in this case) would prove innocence without

consideration of the same appropriate and reasonable "speculation" utilized in

Routier and Raby, e.g., that potential innocent contributors of DNA would be

excluded and the source of any foreign DNA detected would be identified.

Since Routier, Chapter 64 was amended to expand access to DNA testing by

broadening the definition of "biological material," requiring that DNA profiles be

compared to DNA databases1 and most recently by lowering the standard of proof

for the existence of biological material on evidence to be tested. See Act of June

17, 2011, 82d Leg., R.S., ch. 278, §§ 5, 6, 2011 Tex. Sess. Law Serv. 883, 885

(West) (to be codified at Tex. Code Crim. Proc. Ann. arts. 64.01, 64.035); Act of

1 The express requirement of a database search on DNA profiles generated under Chapter 64 is clear evidence of legislative intent for the same database search to be considered under article 64.03(a)(2)(A).

9

June 17, 2011, 82d Leg., R.S., ch. 366, §§ 1, 2, 3, 2011 Tex. Sess. Law Serv. 1016,

1016–17 (West) (to be codified at Tex. Code Crim. Proc. Ann. arts. 64.01, 64.035,

64.04); Act of May 22, 2015, 84th Leg., R.S., ch. 70, §§ 1, 2, 2015 Tex. Sess. Law

Serv. (West) (to be codified at Tex. Code Crim. Proc. Ann. arts. 64.01(a-1),

64.03(a)). The Legislature's intent for broad access to DNA testing in criminal

cases can also be inferred by the addition of Article 38.43(i) to the Texas Code of

Criminal Procedure which imposes a mandatory requirement that all biological

evidence be tested before the jury is empaneled in any capital case. See Tex. Code

Crim. Proc. Ann. art. 38.43(i) (West Supp. 2015) The Majority's restrictive

approach runs counter to this clear Legislative intent and is inconsistent with the

application of Chapter 64 in Routier, Raby, and Pruett.

Further, this Court's treatment of the term "exculpatory" in other contexts

also warrants a broad interpretation in the DNA testing context. "Exculpatory"

was well-defined back in Brady v. Maryland, 373 U.S. 83, 87–88 (1963), and is

generally understood as anything favorable to the defendant. See Pena v. State,

353 S.W.3d 797, 811–12 (Tex. Crim. App. 2011). Further, the definition of

exculpatory evidence includes both the new information as well as the natural

consequences of the new information coming to light. See Ex parte Miles, 359

S.W.3d 647, 666–67 (Tex. Crim. App. 2012) (explaining that police reports

10

identifying alternative suspects were "exculpatory" under Brady because their

disclosure "could have led to further investigation of other suspects and theories").

Evidence pointing to a specific third-party's guilt is a classic example of

exculpatory evidence under Brady and is arguably the most persuasive type of

evidence of innocence. See Ex parte Miles, 359 S.W.3d 647, 666–67 (Tex. Crim.

App. 2012); House v. Bell, 547 U.S. 518, 548 (2006) (evidence undermining

State's case against House would not have proved innocence without other

evidence pointing to a different suspect). Indeed, an alternative suspect is

identified in nearly 50% of all DNA exonerations. See Exonerated: Cases by the

numbers, CNN, http://www.cnn.com/2013/12/04/ justice/prisoner-exonerations-

facts-innocence-project/ (last visited Nov. 11, 2015). Where the statute requires

that hypothetical "exculpatory results" meet the extraordinarily high burden of

proof of probable innocence, the Majority Opinion will deprive convicted persons

of arguably the most powerful category of evidence accepted by courts to make

this showing.

III. No Other Jurisdiction Similarly Restricts Access to Postconviction DNA Testing. Just as Texas courts have done in the Brady context, jurisdictions across the

nation have defined potential exculpatory DNA results as the exclusion of the

defendant from the DNA profile obtained and all realistic possibilities that flow

11

from such exclusion. Tennessee courts, for example, have construed a Chapter 64

equivalent to allow for consideration of all "realistically possible" exculpatory

results:

"'[T]he trial court should postulate whatever realistically possible test results would be most favorable to [the] defendant in determining whether he has established'" the statutory reasonable probability requirement.

Powers v. Tennessee, 343 S.W.3d 36, 55 (Tenn. 2011) (second alteration in

original) (quoting New Jersey v. Peterson, 836 A.2d 821, 827 (N.J. Super. Ct. App.

Div. 2003)). Reflecting the reality of DNA testing, a plethora of jurisdictions

expressly require consideration of potential DNA results identifying a known

suspect through a CODIS database search, when weighing a post-convition DNA

motion. See, e.g., Powers, 343 S.W.3d at 58 (most favorable result would be

match of DNA profile to prior offender in DNA database); Hardin v.

Commonwealth, 396 S.W.3d 909, 915 (Ky. 2013) (non-statutory postconviction

DNA motion); Ohio v. Noling, 992 N.E.2d 1095, 1105 (Ohio 2013); State v.

Butler, 21 A.3d 583, 588 (Conn. App. Ct. 2011); Commonwealth v. Conway, 14

A.3d 101, 114 (Pa. 2011); New Jersey v. DeMarco, 904 A.2d 797, 807 (N.J. Super.

Ct. App. Div. 2006); see also Miss. Code Ann. § 99-39-11(10) (West Supp. 2014);

N.Y. Crim. Proc. Law § 440.30(1-a)(c) (McKinney Supp. 2015).

As the Tennessee Supreme Court explained,

12

"data bank comparative analysis [is used] in the investigation of crimes" and . . . "nationwide there are a multitude of reported cases in which law enforcement agencies have used data bank information to solve crimes where the identification of the perpetrator was in question."

Powers, 343 S.W.3d at 58 (quoting Conway, 14 A.3d at 113 n.14 (alteration in

original)).2

IV. The Majority's Restrictive Definition of Exculpatory Results Will Bar Access to Postconviction DNA Testing in All But a Narrow Category of Cases. By dismissing as too "speculative" any potential DNA result beyond the

exclusion of the convicted person, the Majority eliminates the routine speculation

inherent in virtually any assessment of DNA results. See Majority Opinion, 2015

WL 6513883, at *4. The dramatic barrier to access to DNA testing erected by the

Majority is evident even in cases where such testing is widely recognized to be

essential.

For example, the Majority's construction of Article 64.03(a)(2)(A) would

produce the absurd result of barring access to DNA testing of rape kits in single-

perpetrator rape cases involving an adult woman. This is because excluding the

convicted person from DNA found in sperm, without more, would establish only

that the victim had sexual intercourse with someone within a few days before the 2 Although not every state court has considered this issue, our research has not uncovered a single jurisdiction imposing similar limitations on the exculpatory nature of DNA results to be considered in determining access to postconviction DNA testing.

13

crime. See Majority Opinion, 2015 WL 6513883, at *3 n.13. Additional

speculation (which the Majority prohibits) is required for the Court to assume that

any consensual sexual partner of the victim can be identified, a DNA sample from

such person could be obtained, and DNA testing would exclude that person from

the sample. Thus, even when considering the gold standard of DNA evidence—

intimate samples from rape cases—the Majority would allow postconviction

testing only where the trial record establishes that the victim was not sexually

active.

The Majority's construction will also prevent access to postconviction DNA

testing in the vast majority of trace evidence cases. Take, for example, a case

involving a request to test hairs collected from a murder victim's clothing or skin

cells from a murder weapon. Because humans shed 75–100 hairs each day3 and

skin cells are transferred even when we casually touch objects,4 excluding a

convicted person from these highly probative items of physical evidence alone

likely cannot meet the burden of proof under Article 64.03(a)(2)(A). For DNA

evidence to prove innocence in this context, a trial judge must speculate that the

DNA profile obtained also excludes those persons such as family members,

3 Terry Melton, Motochondiral DNA Examination of Cold Case Crime Scene Hairs, Forensic Magazine (April 1, 2009) (http://www.forensicmag.com/articles/2009/04/mitochondrial-dnaexamination -cold-case-crime-scene-hairs).

4 Williams & Kahn at 85 (epithelial cells deposited when assailant grabs or rubs clothing).

14

friends, or coworkers whose hair or skin cells could have been innocently

transferred to the victim. Cf. Majority Op. at 8 n.13 (speculating that there are

innocent ways foreign DNA can be found on victim); but see Raby, 2005 Tex.

Crim. App. LEXIS 2194, at *18–21.

The striking barrier to DNA testing created by the Majority is best shown in

the case of Michael Morton, who was exonerated by this Court based on

exculpatory DNA testing of a bandana found 100 yards away from the crime

scene. See In re Morton, 326 S.W.3d 634, 638–39 (Tex. App.–Austin 2010, no

pet.). There was no obvious link between the bandana and the crime, and merely

excluding Morton from unidentified DNA profiles on the bandana would have

proven nothing. Instead, Morton argued that "DNA testing of the bandana would

be exculpatory in the event that the bandana contains [the victim]'s blood, a third

party's DNA (due to blood sweat or hair), and none of appellant's DNA." Id. at

641. The Third Court of Appeals reversed the trial court's denial of DNA testing,

holding that exculpatory results could include the identification of the victim's

blood and the DNA of someone other than the defendant. See id. at 644, 647–48.

In fact, the DNA testing proved more than this: the bandana contained both

the victim's blood and that of a database match with felon Mark Norwood. This

testing led not only to Norwood's conviction for the murder of Christine Morton,

but also to Norwood's indictment for a similar murder in Travis County. Had the

15

Majority's restrictive definition of "exculpatory results" under Article

64.03(a)(2)(A) been utilized, the court would have refused to "speculate" that the

blood on the bandana would be associated with the victim, Morton would have

remained wrongfully imprisoned for the murder of his own wife, and Norwood

would have evaded justice for two murders.

The Majority's focus only on DNA exclusions would also have prevented

the exoneration of Randy Arledge. Specifically, postconviction DNA testing

revealed that Mr. Arledge was excluded biological material in the victim's car and

on her body. A database hit then linked the biology to a felon who committed a

similar stabbing and admitted being in the area where the crime was committed.

See Ex parte Arledge, No. AP-76974, 2013 WL 831138, at *1 (Tex. Crim. App.

Mar. 6, 2013) (adopting the trial court findings and holding that Arledge was

factually innocent). Memorandum, Ex parte Arledge, No. 21693, 2013 WL

11028491, at *2, *4–6 (Dist. Ct. Navarro County, Tex. February 11, 2013).

Arledge could never have proven his innocence based only on the mere presence of

unidentified DNA, and under the Majority's analysis, should have been denied

testing. The Morton and Arledge cases are but two examples of how the Majority's

artificially narrow definition of exculpatory DNA results will almost always fail to

16

"factually exclude" the defendant, see Majority Opinion, 2015 WL 6513883, at *3

& n.13—thus vitiating the entire purpose of Chapter 64.5

V. Applying the Proper Construction of Exclusionary DNA Test Results, DNA Testing Is Warranted in this Case. The Majority concedes that, but for its restrictive definition of "exculpatory

results", Mr. Swearingen would be entitled to DNA testing. See Majority

Opinion, 2015 WL 6513883, at *4 n.17 ("Such compelling DNA results would

certainly overcome any mountain of inculpatory evidence.").

Indeed, under the proper standard for exculpatory results, the requested

DNA testing outweighs the circumstantial "mountain"6 of evidence. The discovery

5 After Morton was exonerated through postconviction DNA testing, the Legislature passed the "Michael Morton Act" devoted to remedying the causes of wrongful convictions. See Act of May 16, 2013, 83rd Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (West). It is not plausible that the same legislative body would have intended to restrict access to postconviction DNA testing in a manner that would have denied Morton the DNA testing that proved his innocence.

6 The purported "mountain of evidence" relied upon by the Majority misstates and/or omits critical evidence such as:

 The finding that "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" is inaccurate. Hair found in Mr. Swearingen's bed was not Ms. Trotter's, Swearingen v. State, 101 S.W.3d 89, 106 (Tex. Crim. App. 2003) (Johnson, J., dissenting).

 Contrary to the notion that Mr. Swearingen's wife observed "Melissa's cigarettes and lighter in [Swearingen's] house that evening," Majority Opinion, 2015 WL 6513883, at *1, DNA testing on the cigarette butt and on hair adhering to the Marlboro pack found at the home excluded Ms. Trotter (30 TR. at 136), and Mr. Swearingen's wife conceded that she smoked. (29 TR 179).

 The "discovery" of Ms. Trotter's papers near Mr. Swearingen's house, see Majority Opinion, 2015 WL 6513883, at *2, is problematic. A neighbor allegedly found these papers when retrieving a trashcan nearly a week after Mr. Swearingen was jailed. Two trash days had intervened, but on neither occasion did the neighbor see the 100 yard-long paper trail. (28 TR. at 134–41.).

(cont'd)

17

of matching DNA profiles on any (or all) of the evidence raised in this Case,

including the rape kit, and untested fingernail scrapings and the existing foreign

male profile found in Ms. Trotter's fingernails scrapings constitutes powerful

evidence that this individual—not Mr. Swearingen—strangled (and raped,7 if the

rape kit results are included) the victim. And it is further undeniable that DNA

technology has the proven capacity to actually identify the person whose DNA is

found.

While courts have refused testing in circumstances where the testing would

be thought merely to reveal the presence of an accomplice, the trial record does not

reflect any evidence of an accomplice. See Swearingen v. State, 101 S.W.3d 89,

96 (Tex. Crim. App. 2003). In addition, matches to the already identified foreign

male DNA would also eliminate the "contamination" theory that the State

________________________

(cont'd from previous page)

 The microscopic match between the ligature and pantyhose from Mr. Swearingen's home, see Majority Opinion, 2015 WL 6513883, at *2, was based only on "visual comparison of tear lines"—testimony "reminiscent of bite-mark evidence" whose reliability has been widely criticized. Dissenting Opinion, 2015 WL 6513883, at *14 n.5 (Alcala, J.); see Comm. on Identifying the Needs of the Forensic Sciences Community, Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward 175–76 (2009).

 The description of food found in Ms. Trotter's stomach was undermined by testimony from Dr.

Stephen Pustilnik, Chief Medical Examiner for Galveston County who found nothing in autopsy photos of the stomach meeting the trial description. (2012 Hearing, Vol. 5 at 34–35.).

7 At trial, the State sponsored testimony indicating that Ms. Trotter did not have a consensual intimate relationship within two weeks of her disappearance. (See 29 Tr. at 240). As a result, foreign male from a rape kit would thus be attributable only to a perpetrator.

18

advanced (and this Court has relied upon) to disregard the already-obtained

exclusionary DNA. Swearingen, 424 S.W.3d 32, 39 (Tex. Crim. App. 2014); (see

also App. Br. at 46–48.8) Perhaps most importantly, the Majority's tabulation of

inculpatory evidence overlooks DNA testing already conducted on biological

material found in certain fingernail scrapings from the victim—which suggests a

struggle with someone—but which excluded Mr. Swearingen.9 (Reply, FHD.29, at

1 n.1.) This, in addition to the fact that a pubic hair discovered at the autopsy was

also determined not to be Mr. Swearingen's, (30 Tr. at 77–78), demonstrates that

the record includes substantive evidence that a foreign male other than Mr.

Swearingen was responsible for this crime. The additional exculpatory result of a

match of any of these items to the cigarette butts would likewise place this

suspect at the scene where Ms. Trotter's body was found—again contributing

powerful evidence that the guilty party was the DNA source and not Mr.

Swearingen. See Criner, No. 87-09-00591-CR-(1) (410th Dist. Ct., Montgomery

County, Tex., July 28, 2000).

8 The State's 2014 Appeal brief in Appeal No. AP-77,043 is referred to herein as "App. Br."

9 At trial, the State offered a variety of dubious explanations for this foreign male DNA, including that: (1) blood came from an officer present at autopsy who cut himself shaving (28 Tr. at 124-25), (2) a fleck of blood circulating through the morgue's air conditioning system somehow landed in the scrapings from Ms. Trotter's fingernails (29 Tr. at 115-16), or winds at the crime scene or the whir of helicopters involved in the search miraculously blew blood from investigators under Ms. Trotter's fingernails (State's Response in Opposition to Defendant's Motion for Forensic DNA Testing, at 6.).

19

Since this Court agrees that, under an appropriate construction of article

64.03(a)(2)(A), exculpatory DNA results would create at least a 51% chance that a

reasonable juror would find that an assault by another suspect created reasonable

doubt as to Mr. Swearingen's guilt, the Majority's decision should be reheard and

the District Court's grant of DNA testing should be affirmed.

CONCLUSION AND PRAYER

Appellant respectfully prays that this Honorable Court grant his Petition for

Rehearing, set this case for oral argument, and reverse the decision of the Majority

of the Court of Appeals, thereby affirming the District Court's grant of DNA

testing.

20

Respectfully Submitted,

/s/ Bryce Benjet BRYCE BENJET Tex. Bar. No. 24006829 The Innocence Project 40 Worth Street, Suite 701 New York, New York 10013

JAMES G. RYTTING Philip Hilder Hilder & Associates, P.C. 819 Lovett Boulevard Houston, Texas 77006

Counsel for Appellee

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 I hereby certify that this document complies with the requirements of Tex.

R. App. Proc. 9.4(i). As calculated by Microsoft Word, there are 4,449 words in this document, excluding the portions excepted from the word count by the Rules.

/s/ Bryce Benjet BRYCE BENJET

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was sent by electronic mail to counsel for the Appellant, at their usual e-mail addresses, on the date of the submission of the original to the Clerk of this Court.

/s/ Bryce Benjet BRYCE BENJET

EXHIBIT A

State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

2015 WL 6513883 Yeary, J., concurred in part and dissented in part and Only the Westlaw citation is currently available. filedopinion in which Newell, J., joined.

NOTICE: THIS OPINION HAS NOT BEEN Alcala, J., filed dissenting opinion. RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ON DIRECT APPEAL IN CAUSE NO.

99–11–06435–CR, FROM THE 9TH DISTRICT Court of Criminal Appeals of Texas. COURT, MONTGOMERY COUNTY The State of Texas Attorneys and Law Firms v.

Larry Ray Swearingen, Appellee Bryce E. Benjet, New York, NY, for Appellant.

NOS. AP–77,043 & AP–77,044 | DELIVERED: William J. Delmore III, Assistant District Attorney, October 28, 2015 Conroe, TX, Lisa C. McMinn, State’s Attorney, Austin, TX, for the State.

Synopsis Background: Capital defendant, whose murder conviction and death penalty were affirmed on direct OPINION appeal, 101 S.W.3d 89, filed his third motion for postconviction forensic DNA testing. The 9th District Court, Montgomery County, J., denied motion. The Court KEASLER, J., delivered the opinion of the Court, in of Criminal Appeals, Hervey, J., 303 S.W.3d 728, which KELLER, P.J., MEYERS, JOHNSON, HERVEY, affirmed. Defendant thereafter filed a fourth motion for and RICHARDSON, JJ., joined. DNA testing. The District Court granted defendant’s motion. The Court of Criminal Appeals reversed, 424 *1 The trial judge granted Larry Swearingen’s request for S.W.3d 32. Defendant thereafter filed a supplemental post-conviction DNA testing of several pieces of evidence request for DNA testing, a fifth motion in which he under Texas Code of Criminal Procedure Chapter 64. The requested postconviction DNA testing of evidence. The judge also conditionally granted Swearingen’s motion to District Court granted motion. State appealed. 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 Holdings: The Court of Criminal Appeals, Keasler, J., judge’s order. We dismiss the State’s appeal challenging held that: the conditional order. [1]

defendant’s fifth and most recent motion for DNA testing of was precluded by operation of the law of the case doctrine to extent defendant sought testing of evidence previously considered in prior appeal; I. Facts and Procedural History [2]

defendant was not entitled to DNA testing of rape kit After being found guilty of the 1998 capital murder of and hair evidence; and eighteen-year-old Melissa Trotter, Swearingen was sentenced to death on July 11, 2000. His conviction was [3]

State could not appeal trial court’s order that affirmed on direct appeal.1 We have found the following conditionally granted defendant’s motion for release of previous findings of fact surrounding the substantial evidence. inculpatory evidence presented at Swearingen’s trial supported by the record:

Reversed and remanded in part; remaining issue on appeal • On the evening of December 7, 1998, two of dismissed. [Swearingen’s] acquaintances, the Fosters, witnessed

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State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

a phone conversation in which [Swearingen] believed police would be after him. arranged for a lunch meeting with a girl at a library the following day, and [Swearingen] then told the • When the Fosters heard that Melissa Trotter was Fosters that the girl was Melissa Trotter, a college missing on December 9, 1998, they contacted student from Willis. [Swearingen], who claimed he did not remember the last name of the girl with whom he had met the day • Three witnesses saw [Swearingen] sitting with before. Melissa in the Montgomery College library between 11:30 a.m. and 1:30 p.m. the following day, *2 • When Mrs. Foster told [Swearingen] that she December 8, 1998. recalled him saying the last name was “Trotter,” and that a girl named Melissa Trotter was now missing, • Melissa’s Biology teacher saw her leave the the phone went dead. Montgomery College library with a male shortly after 1:30 p.m. that day. • [Swearingen] led a Sheriff’s deputy on a high speed chase.

• Melissa’s car remained in the Montgomery College parking lot following her disappearance on • Following [Swearingen’s] arrest, law enforcement December 8, 1998. authorities observed and photographed red marks on [Swearingen’s] neck, cheek, and back.

• At 2:05 p.m. on December 8, 1998, [Swearingen] called Sarah Searle and said that he was at lunch • On December 17, 1998, two neighbors of with a friend. [Swearingen’s] mother and stepfather collected numerous pieces of torn paper from along their • Sometime around 3:00 p.m. on December 8, 1998, street, which turned out to be Melissa Trotter’s class [Swearingen’s] landlord saw [Swearingen’s] truck schedule and some health insurance paper work leaving from behind his home. Melissa’s father had given to her.

• At 3:03 p.m. on December 8, 1998, [Swearingen] • Melissa’s body was discovered in an area of the placed a cell phone call that utilized a cell tower near Sam Houston National Forest with which FM 1097 in Willis, Texas, which would be [Swearingen] would have been familiar from consistent with [Swearingen] driving from his home previous time spent there. to the Sam Houston National Forest.

• Melissa’s body showed signs of significant • [Swearingen’s] wife testified that she found their decomposition when it was discovered in the woods home in disarray on the evening of December 8, 25 days after her disappearance. 1998, but none of the Swearingens’ property was missing. • The ligature found around Melissa’s neck matched the remainder of a pair of pantyhose found within • [Swearingen’s] wife observed Melissa’s cigarettes [Swearingen’s] home. and lighter in [Swearingen’s] house that evening, and those items were subsequently recovered from • The Harris Country Chief Medical Examiner [Swearingen’s] home during the investigation. testified that during the digestive process, a person’s stomach will usually not empty in less than two • Hair and fiber evidence, as well as other physical hours, and any food within the stomach at death will evidence, showed that Melissa had been in remain there. [Swearingen’s] car and his home on the day of her disappearance. • The contents of Melissa’s stomach at the autopsy, which included what appeared to be chicken and a • [Swearingen] filed a burglary report falsely french fry-like form of potato, were consistent with claiming that he had been out of town and his home the tater tots she had eaten at Montgomery College was broken into on the day of Melissa’s shortly before leaving with [Swearingen] and the disappearance. Chicken McNuggets she and [Swearingen] had apparently purchased at the nearby McDonald’s on • Between the time of Melissa’s disappearance and the day of her disappearance. [Swearingen’s] arrest, [Swearingen] told two acquaintances on two different occasions that he • While in jail, [Swearingen] attempted to create an

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State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

exculpatory letter written in Spanish in which he a. Ms. Trotters [sic] bra, Trial Exhibit # 163; claimed to be someone else who had knowledge of Melissa’s murder. b. Ms. Trotter [sic] blue jeans, Trial Exhibit # 165;

• Within that letter, [Swearingen] detailed specifics c. Ms. Trotter’s sweater, Trial Exhibit # 166; of the offense that accurately corroborated the physical and medical evidence in the case. d. Ms. Trotter’s underwear, Trial Exhibit # 167; • While in jail awaiting trial, [Swearingen] told a cell and mate that he had committed the capital murder and his only objective was to escape the death penalty. 2 e. Ms. Trotter’s black shirt (Not entered as an exhibit, but collected and bagged at autopsy);”

1 Swearingen v. State, 101 S.W.3d 89 6. “Rape Kit”; and (Tex.Crim.App.2003).

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

2 Swearingen v. State, 303 S.W.3d 728, 737–38 The judge’s second order conditionally granted a Motion (Tex.Crim.App.2010).

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 This is certainly not Swearingen’s first foray in conducting any evidentiary hearing and a mere six months post-conviction DNA testing. He filed Chapter 64 after we held that Chapter 64 did not entitle Swearingen motions in October 2004, May 2008, and January 2009. to DNA testing of most of the same pieces of evidence.4 All were denied by the trial judge. In January 2013 he filed his fourth motion. The judge granted the request, but 3 State v. Swearingen, 424 S.W.3d 32 we reversed.3 In May 2014, approximately three months (Tex.Crim.App.2014).

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, 4 Id. at 35, 39.

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 II. Analysis through testing. The order then directed DNA testing of [1] [2]

all the requested pieces of evidence: Under Chapter 64, a “convicted person may submit to the convicting court a motion for forensic DNA testing of *3 1. “Fingernail scrapings from Ms. Trotter’s left evidence containing biological material.”5 But the and right hands, Trial Exhibit # 219.” convicting court can only order this testing if five requirements are met:

2. “The ligature used to strangle Ms. Trotter (torn pantyhose), Trial Exhibit # 169, and hair and other (1) “the court finds that the evidence still exists and samples collected from ligature.” is in a condition making DNA testing possible;” 3. “The pantyhose comprising the other half of the (2) “the court finds that the evidence has been ligature, Trial Exhibit # 175, and hair and other subjected to a chain of custody sufficient to establish samples collected from pantyhose.” that it has not been substituted, tampered with, replaced, or altered in any material respect;”

4. “Four (4) cigarette butts found near Ms. Trotter’s body, not offered at trial.” (3) “the court finds that identity was or is an issue in the case;”

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

(4) “the convicted person establishes by

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State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

preponderance of the evidence that the person would another DNA donor in the fingernail scrapings would not have been convicted if exculpatory results had overcome the ‘mountain of evidence’ of [Swearingen’s] been obtained through DNA testing;” and guilt.”13 And in our 2010 unanimous opinion, we noted (5) “the convicted person establishes by that the evidence of Swearingen’s guilt was preponderance of the evidence that the request for “overwhelming” and that “even if we were to grant [his] the proposed DNA testing is not made to request to test all of the items proffered and those results unreasonably delay the execution of sentence or were exculpatory, [he] cannot show by a preponderance administration of justice.”6 of the evidence, or that there is a 51% chance, that he would not have been convicted.”14 We noted that the trial Chapter 64 motions are also subject to the “law of the judge made “supported-by-the-record findings of fact that case” doctrine.7 According to that doctrine, “an appellate again, underscore the substantial evidence of guilt.”15 court’s resolution of questions of law in a previous appeal Because we find that the record does not contain any are binding in subsequent appeals concerning the same change in the law, facts, or circumstances since our 2014 issue.”8 Therefore, “when the facts and legal issues are opinion and the granting of Swearingen’s latest Chapter virtually identical, they should be controlled by an 64 motion, we see no reason to revisit our previous appellate court’s previous resolution.”9 Such a rule holdings on the matter. We hold that the judge erred in promotes “judicial consistency and efficiency.”10 granting the DNA testing request of the items listed as (1)

through (5) above.

5 TEX.CODE CRIM. PROC. art. 64.01(a–1).

11

Swearingen, 424 S.W.3d at 32; Swearingen, 303 S.W.3d at 737–38.

6 Id. art. 64.03(a).

12

Swearingen, 424 S.W.3d at 38 (“Since we have previously held that, as a matter of law, the appellee 7 had not met his burden of proof as to the existence of Swearingen, 424 S.W.3d at 35–36.

biological material, and because the legislature’s amendment did not alter this result except in the case of the fingernail scrapings, the trial court erred under the 8 Id. law of the case doctrine when it disregarded our previous holding. The appellee is not entitled to testing of the ligature, the victim’s clothing, or the cigarette butts.”).

9 Id.

13

Id. at 38–39 (“Primarily, this is because the victim’s 10 having encountered another person would not factually Id. exclude [Swearingen] from having killed her. There are many ways someone else’s DNA could have ended up in the victim’s fingernails. Such results would not require an inference that [Swearingen] would [have] been acquitted.”).

A. Order granting DNA testing under Chapter 64 [3]

This Court has previously published opinions refusing Swearingen’s Chapter 64 motions pertaining to the 14 Swearingen, 303 S.W.3d at 736.

particular pieces of evidence (1) through (5) listed above.11 Most recently, in 2014, we unanimously reversed this judge’s granting Swearingen’s prior Chapter 64

15

motion requesting DNA testing of that evidence. We held Id. at 737. that under the “law of the case” doctrine, the judge erred when he granted testing of pieces of evidence (2) through (5).12 We also held that Swearingen was not entitled to *4 [4]The judge, however, found our 2010 holdings DNA testing of the fingernail scrapings because we were inapplicable in that “Swearingen’s current request “not persuaded that results showing the presence of includes additional probative evidence such as the rape © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

kit, hair evidence and cigarette butts.” Including cigarette 17 See Swearingen, 424 S.W.3d at 39 (“A requirement to butts as a distinguishing factor is clearly wrong. assume that the results of testing were not only from Swearingen sought testing of the cigarette butts in 2010 someone other than the convicted person but that the and 2014. To the extent the rape kit and hair evidence other person was a repeat offender ... makes it hard to present entirely new requests, they do not prove that this imagine a case in which we would not grant DNA current request should be resolved any differently than in testing. Such compelling DNA results would certainly our 2010 and 2014 conclusions. Swearingen is still unable overcome any mountain of inculpatory evidence. We to establish by a preponderance of the evidence that he believe that had the legislature meant to so drastically lower the barrier for Chapter 64 testing, they would would not have been convicted if exculpatory results had have said so explicitly.”)

been obtained through DNA testing.16

16 See TEX.CODE CRIM. PROC. art. 64.03(a)(2)(A).

B. Conditional order granting the release of evidence The judge’s determination that Swearingen satisfied this for preliminary testing [5]

requirement rests largely on two theories: The judge’s second order dismissed as moot Swearingen’s Motion for Release of Evidence because he (1) “these results would both rule out an innocent had granted Swearingen’s requested Chapter 64 DNA explanation for the presence of the foreign DNA and testing. The order continued nonetheless and purportedly would likewise provide support for Swearingen’s granted the motion in the alternative. It is this language contention that the pantyhose found outside his home that forms the basis of the State’s separate appeal: was planted”; and However, the Court finds that, pursuant to the amended (2) “Swearingen pointed to several alternative suspects Article 64.01(a), that the defendant would have the as well as known killers active in the area at the time. right to demonstrate the presence of “identifiable” There would be no innocent explanation for finding the biological material which “may be suitable” for testing. DNA of an alternative suspect or known killer on or in Accordingly, this Court would GRANT the motion in the victim or at the crime scene.... The strength of this the alternative if it is later determined that the proof of [new-found] evidence [of a known killer’s the existence of biological material is insufficient. involvement] would be greatly increased if subsequent investigation of that individual produced additional *5 .... evidence of guilt such as a confession or a false denial of contact with the victim or the scene.” ... [I]f the evidence of the existence of biological material pursuant to Article 64.01(a) is subsequently The judge’s order does not take into consideration what determined to be insufficient, the Motion [for Release] we referred to in our 2010 and 2014 opinions as the is GRANTED. “mountain of inculpatory evidence” Swearingen faced at However, the State is unable to appeal this conditional trial. In fact, the current judge’s discussion of the order. The State claims that it may, citing Article 44.01 relevance of potential results omits the most inculpatory because the order was “issued under Chapter 64,”18 and pieces of evidence admitted against Swearingen. Further, Article 64.05’s broad phrase allowing “appeals under this the judge’s findings are entirely speculative, especially chapter.”19 While resolving the issue here would perhaps when considered in the context of all the admitted “provide an orderly and expeditious means for review of a evidence. We faulted Swearingen in 2014 for attempting potentially unauthorized order,”20 we hold the State cannot to rely on the ramifications of hypothetical matches from contest the order’s validity by way of appeal. The evidence that eviscerate Chapter 64’s requirements.17 And conditional order appears to be effective, if at all, in the it is even more attenuated to assume hypothetical event that this Court holds that Swearingen was not confessions and false denials of contact stemming from entitled to Chapter 64 testing. In other words, the hypothetical DNA matches. Once again, Swearingen conditional order rests on grounds outside the bounds of cannot establish by a preponderance of the evidence that Chapter 64.

he would not have been convicted if exculpatory results had been obtained through DNA testing. For the

18

foregoing reasons, we vacate the order granting Chapter TEX.CODE CRIM. PROC. art. 44.01(a)(6) (“The state 64 testing. is entitled to appeal an order of a court in a criminal case if the order: ... (6) is issued under Chapter 64”).

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YEARY and NEWELL , JJ., join Part IIB of the opinion.

YEARY , J., filed a concurring and dissenting opinion, in 19 Id. art. 64.05 (“An appeal under this chapter is to ... [the which NEWELL, J, joined. court of criminal appeals] if the convicted person was convicted in a capital case and was sentenced to ALCALA , J., filed a dissenting opinion. death....”).

20 State’s Brief at 5. CONCURRING AND DISSENTING OPINION

YEARY, J., filed a concurring and dissenting opinion in In State v. Patrick, a plurality of this Court held that the which NEWELL, J., joined. State could not appeal a judge’s order granting testing that did not purport to be based on Chapter 64.21 The Patrick plurality held that the proper avenue to contest the order I. was through a writ of mandamus, which it conditionally granted, holding the judge was “clearly and indisputably I join Part II.B. of the Court’s opinion disposing of cause without jurisdiction to issue the order in question.”22 The number AP–77,044. 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.23 Unlike Patrick, the State does not seek mandamus relief along side its appeal. Accordingly, II. we must dismiss this State’s appeal.

I write separately to express why I believe the Court 21 ought to affirm the trial court’s order granting DNA State v. Patrick, 86 S.W.3d 592, 594 (Tex.Crim.App.2002).

testing, in cause number AP–77,043, at least in part.

22 Id. at 594–95 A. The Ligature, Cigarette Butts, and Victim’s Clothing

23 Id. at 596 (“Any inherent powers possessed by the trial With respect to much of the evidence that the convicting court as a result of its jurisdiction under Chapter 64 court has now ordered that testing be done (victim’s would necessarily be limited by Chapter 64.”). 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 III. Conclusion in the law, facts, or circumstances since our 2014 opinion[,]”Majority Opinion at ––––, the Court continues For the foregoing reasons, in cause number AP–77,043, to reject Appellee’s request to test those items for the we reverse the judge’s order granting DNA testing under same reason. Judge Alcala believes that there has been a Chapter 64 and remand for proceedings in accordance change in the facts that would preclude applicability of with this opinion. In cause number AP–77,044, we the law of the case doctrine, namely, DNA analyst Huma dismiss the State’s appeal challenging the judge’s order Nasir’s revised opinion. Dissenting Opinion at –––– – conditionally granting the release of evidence. –––. Nasir now explains that, when she said “likely” in her earlier affidavit, she actually meant “at least more likely than not[.]” Id. at ––––. She then somehow translates “more likely than not” into “a reasonable degree

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State v. Swearingen, --- S.W.3d ---- (2015) 2015 WL 6513883

of scientific certainty that biological material is present type of “bodily fluid,” even if only the victim’s. But in [.]” Id.(emphasis supplied.) In State v. Swearingen, we making any assessment as to whether exculpatory DNA made it clear as a matter of law that “merely probable” is results would likely change a jury’s verdict, the Court not sufficient. 424 S.W.3d at 38. In common parlance, should measure the “mountain of evidence” inculpating “more likely than not” is the same as “probable.” I cannot Appellee against presumptively favorable test results for blame the Court for rejecting the notion that “probable” all of the evidence for which biological material has been may reasonably be regarded as equating with “a shown to be present: the rape kit, the hairs, and the reasonable degree of scientific certainty.” Like the Court, fingernail scrapings. The Court should not rely on law of I see no change in the law or facts to preclude our the case in this piecemeal fashion to first reject DNA application of the law of the case doctrine. Majority testing of the fingernail scrapings, and then later to reject Opinion at ––––. 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 three of these B. Fingernail Scrapings, Rape Kit, and Hairs sources, considered together.

*6 With respect to the fingernail scrapings, the Court I am not unmindful of decisions from this Court that have today also relies on the law of the case doctrine, but this refused DNA testing under circumstances in which such time to hold that Appellee cannot establish a different testing might reveal no more than the presence of an prerequisite to DNA testing. Majority Opinion at –––– – accomplice without also ruling out the defendant’s ––––. In State v. Swearingen, we held that, even assuming participation as either principal actor or party. See, e.g., such testing would turn up DNA from a third party, not Wilson v. State, 185 S.W.3d 481, 485 Appellee’s, such exculpatory evidence would not (Tex.Crim.App.2006) (“[I]f new, more discriminating “overcome the ‘mountain of evidence’ of [Appellee’s] DNA testing showed that another perpetrator was guilt.” 424 S.W.3d at 38 (quoting Swearingen v. State, involved, that finding would not exonerate appellant 303 S.W.3d at 736). Hence, he cannot establish by a because it would show nothing more than there was preponderance of the evidence that he would not have another party to the crime, at best.”). But, I believe that if been convicted had the fingernail scrapings contained a DNA testing all three of these items had demonstrated third party’s DNA. The Court reiterates that holding third-party DNA—and especially had it revealed the today. presence of DNA from the same third party in all three of these items, and none of Appellee’s DNA—some rational Beyond this, however, the Court today does not purport to juror might readily have harbored a reasonable doubt with rely on the law of the case doctrine. Regarding Appellee’s respect to whether Appellee had any role in Trotter’s request for DNA testing of several new items, namely, the abduction, sexual assault, and murder.1 Cf. Routier v. rape kit and certain hairs, the Court seems willing to State, 273 S.W.3d 241, 259 (Tex.Crim.App.2008) (“In assume that these do contain biological material and does our estimation, DNA evidence showing that an unknown not reject Appellee’s request for testing on that account. intruder—indeed, the same unknown intruder—had left Instead, in an altogether new holding, the Court concludes blood on the night shirt and the door from the utility room that, as with new DNA testing of the fingernail scrapings, to the garage, along with a facial hair and a pubic hair, current testing of the rape kit and hairs, even if it revealed would more likely than not have caused the jury to harbor third-party DNA, would not serve to refute the “mountain a reasonable doubt as to the appellant’s guilt and decline of evidence” pointing to Appellee’s guilt. “Once again,” to convict her.”). At the very least, we should defer to the the Court concludes, in an original holding that does not convicting court’s judgment to that effect. rely upon law of the case, Appellee “cannot establish by a preponderance of the evidence that he would not have 1 been convicted if exculpatory results had been obtained Applicant is entitled to DNA testing if he can through DNA testing.” Majority Opinion at ––––. demonstrate “by a preponderance of the evidence” that, among other things, “he would not have been convicted if exculpatory results had been obtained” through that I agree with Judge Alcala that both the hair and the rape testing. TEX.CODE CRIM. PROC. art. 64.03(a)(2)(A). kit contain biological material in contemplation of Article If at least one rational juror would likely have harbored 64.01(a)(1). TEX.CODE CRIM. PROC. art. 64.01(a)(1). a reasonable doubt, Applicant would not have been Dissenting Opinion at –––– – ––––. “Hair” is expressly convicted. listed in the statute as it presently reads, and a rape kit will inevitably contain, if not “semen,” then at least some © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

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*7 For these reasons, I ultimately dissent to the Court’s III.2 At issue in this case are Swearingen’s requests for disposition of cause number AP–77,043. 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 DISSENTING OPINION victim’s clothing. For consistency, I refer to these items using the above assigned numbers throughout the opinion.

ALCALA, J., dissenting.

1

This is a close case with greatly important competing There is a disagreement about the number of Chapter interests. On the one hand, this brutal crime against a 64 motions Swearingen has filed. By my reading of the young college student, Melissa Trotter, occurred almost record, Swearingen has filed three motions. The trial court denied his first motion, the 2004 motion, and this twenty years ago, and the evidence establishing her Court dismissed his appeal of the trial court’s ruling killer’s guilt should have been finally resolved by now. based on procedural default. In Swearingen I, this Court On the other hand, for about a decade, Larry Ray addressed his second motion, the 2008 motion, and its Swearingen, appellee, has been seeking DNA testing on supplement that had been filed by him. In Swearingen items that he claims would exonerate him of this offense II, this Court addressed his third motion, the 2013 for which he was convicted. Swearingen’s current motion motion. Here, in Swearingen III, we again address his includes first-time requests for DNA testing on hair third motion and its supplement that appears here after evidence and the sexual assault evidence-collection kit our remand in Swearingen II. from the victim (rape kit), which are by definition biological material under the applicable statute. I conclude that, despite the volume of incriminating 2 Swearingen filed a motion for DNA testing in 2004, evidence of Swearingen’s guilt, DNA testing on the hair which the trial court denied in 2005. Because he did not evidence and the rape kit linking a different person to this timely appeal the trial court’s order, this Court rejected offense would, by a preponderance of the evidence, show his appeal due to procedural default. State v. that Swearingen would not have been convicted. I, Swearingen, 189 S.W.3d 779 (Tex.Crim.App.2006). therefore, respectfully dissent from this Court’s judgment This Court, therefore, never reached the merits of his that, for the third time in over a decade, denies first motion for DNA testing. 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 A. The 2008 Motion Discussed in Swearingen I judgment denying the testing.

*8 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 I. Background S.W.3d 728 (Tex.Crim.App.2010) (Swearingen I ). This motion requested the testing of materials that Swearingen Since he was convicted and sentenced to death for the had not sought to be tested previously: (1) the ligature; (5) rape and murder of Melissa Trotter, Swearingen has filed the victim’s fingernail scrapings, including (5–a) multiple motions for DNA testing, each of which has been scrapings from under the left-hand fingernails that were rejected by this Court.1 Acknowledging that he filed a shown to contain blood flakes and (5–b) other scrapings motion in 2004 that was denied by the trial court and later from under the left-and right-hand fingernails, consisting dismissed by this Court on appeal due to procedural of a “black flaky matter” and traces of sand or gravel; (7) default, I focus on his 2008 motion that this Court the victim’s clothing, including scrapings from her ripped addressed in Swearingen I; his 2013 motion initially jeans; and (8) a foreign pubic hair that was recovered addressed in Swearingen II; and his supplement to the during the collection of the rape kit. Id. at 730. 2013 motion that was filed after our remand to the trial court in Swearingen II, which is the subject of this The trial court denied the requests for DNA tests of (1) Court’s instant opinion that I will refer to as Swearingen the ligature, (5–b) the other fingernail scrapings, and (7)

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the clothing because there had been no showing that these B. The Third Motion Addressed in Swearingen II items contained biological material. Id. On appeal from the trial court’s denial of the motion for DNA testing, this In response to the Legislature’s amendment of Chapter 64 Court noted that the then-existing statute required a in 2011, Swearingen filed another motion seeking DNA movant to show that each of these items actually testing in 2013. His motion sought to have DNA testing contained biological material. Id. at 733. This Court held performed on several pieces of evidence: (1) the ligature, that, with respect to those items, “the record [was] void of (2) the other leg of pantyhose, (5) the fingernail scrapings, any concrete evidence that biological material existed on (6) the cigarette butts, and (7) the victim’s clothing. In the evidence sought to be tested.” Id. support of his motion, Swearingen attached an affidavit, dated January 2013, by Huma Nasir, a forensics The trial court’s order also denied testing of (5–a) the supervisor at Orchid Cellmark, Inc. The State responded victim’s left-hand fingernail scrapings that contained that the doctrine on the law of the case applied and, on blood flakes. Id. at 735. In upholding the trial court’s that basis, it argued that Swearingen’s motion for DNA ruling as to this evidence, this Court observed that the testing should be rejected. blood flakes had already been tested, and the results of that testing had revealed a full male DNA profile that was *9 The trial court granted the motion in June 2013, inconsistent with the DNA profile of Swearingen, the thereby ordering DNA testing to proceed, and it made complainant, or any other known DNA profile. Id. findings of fact and conclusions of law supporting that Although the initial test was not done with the most recent order. After the State appealed, this Court reversed the technique, this Court reasoned that Swearingen was not trial court’s order. State v. Swearingen, 424 S.W.3d 32 entitled to retesting of this evidence because the previous (Tex.Crim.App.2014) ( Swearingen II ). This Court test had already produced accurate, probative results in explained that it had reviewed the requests discussed in the form of a full male DNA profile that had been Swearingen I with respect to (1) the ligature, (5) the submitted to CODIS without a match. Id. This Court, fingernail scrapings, and (7) the victim’s clothes. Id. at therefore, concluded that Swearingen had failed to show 36. This Court stated, “Although the law has been “a reasonable likelihood that results of re-testing would be amended, these amendments did not affect all of our more accurate or probative.” Id. previous determinations. In the instances where the amendment did not impact our analysis, the trial court The trial court additionally denied the request for testing erred by failing to adhere to our previous determinations.” of the foreign pubic hair that was recovered during the Id. collection of the rape kit because the pubic hair could not be found and a chain of custody could not be established. This Court noted that, since Swearingen’s previous round This Court upheld this ruling because the hair was not of DNA requests, the Legislature’s amendments changed available for testing. Id.3 Chapter 64 in two major ways. Id. First, the Legislature added a definition of “biological material,” which 3 specifies that certain items, such as fingernail scrapings, Swearingen’s present motion does not request DNA testing on (8) the foreign pubic hair that this Court are per se biological material. Id. at 37. Second, the determined in Swearingen I had been lost, and, Legislature eliminated a requirement that the lack of therefore, I do not discuss that item any further in this previous testing had not been the convicted person’s fault. opinion. 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 This Court also upheld the trial court’s determination that the evidence contains biological material. Id. The Court Swearingen had filed the Chapter 64 motion to further said, “No part of the amendments addresses a unreasonably delay his execution. Id. at 736. Furthermore, method for determining the existence of biological the Court detailed, in twenty-five bullet points, the material.” Id. The Court expressly noted that Swearingen evidence supporting its conclusion that, even if the DNA had the burden to “prove biological material exists and test results were favorable as to the items that had been not that [its existence] is merely probable.” Id. at 38. requested for testing in that motion, Swearingen was unable to show by a preponderance of the evidence that As to the particular items that Swearingen sought to be he would not have been convicted. Id. at 736–38. 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 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

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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 C. This Court’s Instant Majority Opinion: After same conclusion as in Swearingen I, in which this Court Remand from Swearingen II had held that the lack of evidence of biological material *10 After this Court’s remand order, Swearingen required Swearingen’s motion to be rejected. See id. at supplemented his motion by requesting DNA testing on 37–38; Swearingen I, 303 S.W.3d at 733. This Court items that he had previously requested to have tested, and determined that the law-of-the-case doctrine applied, and he additionally sought DNA testing on certain items for it was bound to its former analysis and ruling denying the the first time. He explained that “each item was either not testing as to these particular items. Swearingen II, 424 previously tested or can now be tested with much more S.W.3d at 37–38. sensitive technology that will produce more robust results.” Specifically, the first-time requests are for testing As to (5) the fingernail scrapings, this Court held that the of (3) the hairs, including hair recovered from the victim’s law-of-the-case doctrine did not apply because the body and clothing, hairs on the ligature and pantyhose, amended statute defined fingernail scrapings as biological hair recovered from gloves used to move the body, and material per se, and, therefore, Swearingen did not need to hair recovered from a hairbrush found near the victim’s show that they contained biological material. Id. at 38. body, and (4) the rape kit. In response, the State argued Nonetheless, this Court ruled that Swearingen was not that the law-of-the-case doctrine should apply to this case entitled to DNA testing as to the fingernail scrapings. Id. in its entirety. 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 II. The Doctrine on the Law of the Case is the victim’s fingernails.” Id. It further observed that the Inapplicable to the Requests for DNA Testing on (2) jury was already aware that an unidentified male’s DNA the Pantyhose, (3) the Hair Evidence, (4) the Rape Kit, was found under the victim’s fingernails, and, therefore, and (6) the Cigarette Butts any additional similar exculpatory results would not have likely changed the jury’s verdict in light of the “mountain The doctrine on the law of the case is inapplicable to four of evidence” showing Swearingen’s guilt. Id. at 39 (“If of Swearingen’s requests. Swearingen now presents the jury already knew of exculpatory results obtained additional evidence in support of his claim that (2) the from under the victim’s nails and disregarded them, we pantyhose and (6) the cigarette butts contain biological have no reason to believe that it would be any different material, and he includes first-time requests for testing on with regards to the remainder of the fingernail (3) the hair evidence and (4) the rape kit, neither of which scrapings.”). This Court reversed and remanded for was before this Court in Swearingen I or Swearingen II. proceedings in accordance with its opinion. 4 Id. Because the facts are not virtually identical, the law-of-the-case doctrine is inapplicable to these requests.

4 Our remand in Swearingen II was for proceedings in accordance with the opinion, and the purpose of the The law-of-the-case doctrine is designed to promote remand is unclear. Swearingen asserts that the remand consistency and efficiency so that trial courts may rely was to permit him the opportunity to obtain a revised upon the holdings of reviewing courts. Carroll v. State, affidavit from the expert and to submit new requests for 101 S.W.3d 454, 461 n. 35 (Tex.Crim.App.2003). It is testing. The State understands the remand to have been only applicable if “the facts and legal issues are virtually for the trial court to enter an order denying the motion identical ... [so that] they should be controlled by an for DNA testing and setting an execution date. It would appellate court’s previous resolution.” Swearingen II, 424 have been unnecessary either (1) to remand the case for a denial order because that would be done through S.W.3d at 36. For the law-of-the-case doctrine to control rendition of a judgment by this Court, or (2) to remand this case, the evidence would have to show that the for the setting of an execution date, which is unrelated applicable DNA statute, the items sought to tested, and to a DNA motion. Swearingen’s theory thus presents the evidence relevant to the motion are virtually identical. the only plausible rationale for this Court’s remand See id. order.

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Here, the applicable DNA statute permits a convicted Nasir’s former affidavit in Swearingen II more person to “submit to the convicting court a motion for equivocally stated, forensic DNA testing of evidence containing biological material.” TEX.CODE CRIM. PROC. art. 64.01(a–1). Thus the pantyhose was probably This motion may request testing of evidence that was handled by the assailant with some secured in relation to the offense comprising the force and likely contains his underlying conviction and was in the possession of the biological material that is suitable State during the trial but either was not previously tested for DNA testing.... Biological or, although previously tested, can be tested with newer material from any wearer of this techniques which can provide more accurate and pantyhose and anyone who tore the probative results. Id. A convicting court may order testing pantyhose is likely to be detected if the evidence in question (1) still exists and is in a on this item using modern DNA condition making DNA testing possible; (2) has been testing.... Where there has been subjected to a chain of custody sufficient to establish that such obvious and forceful contact it has not been substituted, tampered with, replaced, or with the victim’s clothing, the altered in any material respect; and (3) identity was or is biological material of the victim an issue in the case. Id.art. 64.03(a)(1). Further, the and the perpetrator is likely to be convicted person has the burden of showing by a deposited on the clothing.... preponderance of the evidence that he “would not have Because cigarettes are both been convicted if exculpatory results had been obtained manually handled and placed in a through DNA testing” and that the request for testing is person’s mouth, skin cells and not made to unreasonably delay the execution of sentence. epithelial cells from saliva were Id.art. 64.03(a)(2). likely deposited on the cigarettes, rendering them suitable for DNA Swearingen’s present motion for DNA testing includes analysis.... requests for testing of the following items: (A)(1) the ligature, (2) the pantyhose, (6) the cigarette butts, and (7) Upon Swearingen’s request after this Court’s remand in the victim’s clothing; (B)(3) the recovered hair samples; Swearingen II, Nasir supplemented her affidavit to more and (C)(4) the rape kit. Swearingen also requests testing clearly articulate her scientific position that we now of (5) the fingernail scrapings, which I discuss in Section consider in the instant case. The new affidavit states, D. Section D addresses the State’s theory that the doctrine on the law of the case broadly applies to bar DNA testing In my prior affidavit, I discussed in this case because of this Court’s characterization in the concept of “touch DNA” and Swearingen I and Swearingen II that there is a mountain explained that DNA profiles can be of evidence that shows Swearingen’s guilt for this obtained from microscopic offense. amounts of skin cells left by a person who has touched or handled an object. I provided my expert opinion that the objects identified A. (1) The Ligature, (2) The Pantyhose, (6) The in this case would “likely” contain Cigarette Butts, and (7) The Victim’s Clothing biological material suitable for testing. By “likely,” I meant that it *11 In Swearingen II, this Court held that Swearingen had is at least more likely than not that failed to provide evidence to show that there would be evidence in this case would contain DNA on (1) the ligature, (2) the pantyhose, (6) the biological material.... I have now cigarette butts, and (7) the victim’s clothing, and, here, he been asked to provide a more requests DNA testing as to the same items. Swearingen II, precise opinion regarding the 424 S.W.3d at 38. This time, however, he has produced a scientific likelihood that biological new affidavit from his DNA expert, Huma Nasir, in material is present on the objects which she reports that biological material is present on identified for testing in this case....

these items. She states, “It is my opinion to a reasonable It is my opinion to a reasonable degree of scientific certainty that biological material is degree of scientific certainty that present on [ (1) the ligature, (2) the pantyhose, (6) the biological material is present on the cigarette butts, and (7) the victim’s clothing].” No items....

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Because the facts before us are different in light of the requests for DNA testing on (3) the hairs. 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 C. (4) The Rape Kit below, the doctrine controls this case with respect to (1) the ligature and (7) the clothing because this Court’s Swearingen did not request DNA testing of the rape kit in analysis in Swearingen I held that, even if exculpatory Swearingen I or Swearingen II, or in any other motion for results were obtained as to those items, that evidence DNA testing. The law of the case, therefore, cannot apply would not overcome the weight of the evidence to his request for testing as to that item. Surprisingly, it establishing Swearingen’s guilt. As to (2) the pantyhose appears that the rape kit has never been tested at all. The and (6) the cigarette butts, I conclude, as explained in rape kit apparently was not tested because the Texas Section D below, that those items are not controlled by Department of Public Safety reported that no semen was the doctrine on the law of the case. 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 B. (3) The Hair Evidence may be due to levels of semen too low to be detected by the methodology employed, poor laboratory testing The DNA testing on the hair evidence requested in the processes, or foreign DNA from biological material other instant proceedings was never before requested in the than spermatazoa (such as epithelial cells).” The motions discussed in Swearingen I or Swearingen II, or in capabilities for DNA testing from fifteen years ago have any other motion for DNA testing. In his supplemented changed considerably as compared to what is Chapter 64 motion, Swearingen requests testing of certain scientifically possible today. Further, like the hair hair collected from the victim’s clothing, hair recovered evidence, the rape kit is biological material according to from the victim’s body, and hair recovered from a the statutory definition. So, the law-of-the-case doctrine hairbrush found near the victim’s body. These are entirely cannot apply to the rape kit, at least regarding the new requests that we have not previously ruled upon, so requirement that Swearingen must prove the existence of the doctrine on the law of the case does not govern our biological material. I would hold that the law-of-the-case disposition of his motion for testing as to these pieces of doctrine is inapplicable to the instant request for DNA evidence. The State contends that none of this hair is in an testing on (4) the rape kit. 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. D. Applicability of the Law–of–the–Case Doctrine to Although mitochondrial DNA profiles are not CODIS Certain Items eligible, results can be used for exclusion purposes and to compare against known samples.” It is a fallacy to suggest that, because this Court, in Swearingen I and Swearingen II, referred to the evidence *12 Further, the Legislature’s 2011 amendments to of guilt in this case as constituting a mountain of evidence Chapter 64 included a definition of biological material. when comparing it to Swearingen’s requests for DNA The statute was amended to define biological material as testing of certain items, namely (1) the ligature, (5) the follows: “(a) In this section, ‘biological material’: (1) fingernail scrapings, and (7) the victim’s clothing, the means an item that is in possession of the state and that same analysis of the evidence must identically apply to contains blood, semen, hair, saliva, skin tissue or cells, the requests for DNA testing on (2) the pantyhose, (3) the fingernail scrapings, bone, bodily fluids, or other hairs, (4) the rape kit, and (6) the cigarette butts. I identifiable biological evidence that may be suitable for conclude, as explained below, that the law-of-the-case forensic DNA testing; and (2) includes the contents of a doctrine is inapplicable to the requests for DNA testing on sexual assault evidence collection kit.” TEX.CODE (2) the pantyhose, (3) the hairs, (4) the rape kit, and (6) CRIM. PROC. art. 64.01(a). The previous version of the the cigarette butts because this Court has never weighed statute did not define the term biological material. the probative value of favorable findings from that testing According to the amended statute, the hairs collected are, against the weight of the incriminating evidence by definition, biological material, so Swearingen has met establishing Swearingen’s guilt. his burden of proof as to the hairs. I would hold that the law-of-the-case doctrine is inapplicable to the instant In Swearingen I, we held that the mountain of evidence

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was so large that “even if we were to grant Swearingen II, 424 S.W.3d at 38. We ruled this way [Swearingen’s] request to test all of the items proffered because only the fingernail scrapings were left after we [he] cannot show by a preponderance of the evidence, or disposed of the other evidence under the law-of-the-case that there is a 51% chance, that he would not have been doctrine. convicted.” Swearingen I, 303 S.W.3d at 736. That analysis pertained to (1) the ligature, (5) the fingernail Unlike the items in Swearingen I and Swearingen II, this scrapings, and (7) the victim’s clothing. Because this Court has never weighed the evidence of Swearingen’s Court in Swearingen I has already weighed the guilt against any exculpatory DNA evidence that might be exculpatory value of favorable DNA evidence that might obtained from testing on (2) the pantyhose, (3) the hairs, be obtained from those items, this Court today is bound (4) the rape kit, or (6) the cigarette butts. The by the law-of-the-case as to those items. law-of-the-case doctrine, therefore, is inapplicable as to those items.

*13 Our ruling in Swearingen II assessed only the probative value of exculpatory fingernail scrapings, and The following chart visually demonstrates my conclusions therefore, our analysis on the comparative weight of that with respect to the items to which the law-of-the-case evidence against the evidence of Swearingen’s guilt is doctrine applies and those to which it does not apply: 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.” Requested Items for Swearingen I Swearingen II 2013 Current 2013 Motion DNA Testing 2008/2009 Motion Motion on Remand

(1) The No evidence shows Court applied The law-of-the-case Ligatureand(7)The that the items law-of-the-case doctrine applies Clothing contained biological doctrine to the failure based on the finding material. Alternatively, to show that the items in Swearingen I that the probative value of contained biological the probative value of any exculpatory material. the items would not results would not overcome the overcome the incriminatory mountain of evidence. evidence.

(2) The No evidence shows The law of the case Pantyhoseand(6) The that this item does not apply Cigarette Butts contained biological because the new material. affidavit shows that this item does contain biological material.

(3) The Hairs and(4) The law of the case The Rape Kit does not apply because these are newly requested items that are per se

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biological material.

(5) The Fingernail No evidence shows New statute defined The law-of-the-case Scrapings that then-existing this item as a doctrine applies technology could not biological material, based on finding that yield probative but exculpatory the probative value of results. Alternatively, results from this exculpatory test the probative value of testing would not results would not any exculpatory have changed the overcome the results would not outcome of the trial. incriminatory overcome the evidence. mountain of evidence.

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 III. Swearingen Meets all the Requirements for DNA item earlier is no longer a part of the applicable statute, testing on the Hair Evidence and the Rape Kit, But He and it can no longer constitute a basis for rejecting a Does Not Meet the Requirements for Testing of the request for testing. Swearingen II, 424 S.W.3d at 37. I Pantyhose or the Cigarette Butts would defer to the convicting court’s fact finding that the items remain available in a suitable condition for testing.

Having determined that the law-of-the-case doctrine applies to disallow testing of all of the items except for *14 A movant must show that identity was an issue at four items, I explain why the requirements of Chapter 64 trial. No one disputes that Swearingen meets this are met with respect to (3) the hair evidence and (4) the requirement. rape kit, but not as to (2) the pantyhose or (6) the cigarette butts. Chapter 64 requires that the evidence contain With respect to the requirement that he show by a biological material, that it is in a condition to be tested, preponderance of the evidence that he would not have that identity was an issue at trial, that the defendant would been convicted if favorable DNA results from the items not have been convicted if favorable results had been that he now requests be tested had been obtained at trial, I obtained by DNA testing, and that the convicted person is conclude that Swearingen satisfies this requirement as to not filing the motion to unreasonably delay execution. the hairs and the rape kit. See TEX.CODE CRIM. PROC. TEX.CODE CRIM. PROC. art. 64.03. art. 64.03(a)(2)(A). This Court’s majority opinion suggests that, because our opinions in Swearingen I and Swearingen II held that Swearingen could not overcome the mountain of evidence in those appeals, it necessarily A. The Hair Evidence and the Rape Kit follows that he would be similarly unable to do so here.

All of these requirements are met in this case for the hair But, as explained above, the items requested in evidence and the rape kit. As discussed above, the Swearingen I and Swearingen II are not the same as the applicable statute now defines the hair evidence and rape ones requested here. It is true that this Court’s previous kit as per se biological material. See id.art. 64.01(a). The rulings have detailed the mountain of evidence against convicting court made a finding of fact that the hair Swearingen in holding that exculpatory DNA results evidence and rape kit remain in a condition to be tested, would not have made a difference in his conviction. But a and the record supports that determination. On appeal, the DNA test from a rape kit conclusively showing that the State has presented a minimal challenge to the testing of victim had sexual intercourse with another male within a these items, stating that the “existence of a sexual assault few hours of her murder, and DNA results showing that collection kit and hairs found on Ms. Trotter’s clothing hair on and near her body belonged to another person,

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when viewed in combination with the evidence that was against the defendant that he had not sought testing of the introduced at Swearingen’s trial that the complainant had items earlier. Swearingen I, 303 S.W.3d at 736. Under the another person’s DNA under her fingernails, would amended statute that applies here, it is improper to establish by a preponderance of the evidence that the jury consider a defendant’s failure to request the testing would have acquitted him. It should not be forgotten that sooner. Furthermore, unlike the situation before us in the mountain of evidence is circumstantial in nature, with Swearingen I, here the convicting court has recommended the exception of the testimony of a jailhouse snitch and a DNA testing and has made a factual finding that letter written by Swearingen with details of the crime that, Swearingen has not filed this motion for purposes of according to him, were in the autopsy report. The most delaying his execution. I would defer to that incriminating circumstantial evidence linking Swearingen determination and hold that Swearingen’s current motion to violence against Trotter is the evidence that the is not filed for purposes of delay. 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 B. The Pantyhose and the Cigarette Butts Trotter’s DNA profile that appeared as if they had been forcibly removed. I agree that all of the circumstantial Although I conclude that the doctrine on the law of the evidence introduced by the State at Swearingen’s trial case cannot be used as a proper basis for denying DNA strongly connects him to Trotter at some point prior to her testing on (2) the pantyhose and (6) the cigarette butts, I death, and it is powerful evidence of Swearingen’s guilt. reach the same ultimate conclusion as this Court’s But its persuasive value would be greatly undermined by majority opinion that DNA testing must be denied as to new DNA evidence indicating that the rape kit and the those items. Even if exculpatory results were obtained hairs found on and near the victim’s body contained a from the pantyhose, those results would not, by a DNA profile inconsistent with Swearingen’s DNA preponderance of the evidence, show that the jury would profile, particularly when fingernail scrapings also did not have reached a different verdict in this case, in light of the match Swearingen’s DNA profile.5 fact that the pantyhose remnant was found in Swearingen’s trailer, it contained DNA matching his and 5 his wife’s DNA profiles, and it matched the other part of I note here that, even though DNA consistent with the pantyhose that was used as the ligature to kill Trotter.

Swearingen’s and his wife’s DNA profiles were found on the pantyhose leg in their trailer, and even though Furthermore, even if exculpatory results were obtained DNA consistent with the victim’s DNA profile was from the cigarette butts, those results would not, by a found in Swearingen’s truck, we know from current preponderance of the evidence, show that the jury would statistical problems relating to DNA-mixture have reached a different verdict in this case, given the interpretation that even these results are fallible. In a testimony suggesting that the cigarette butts had been left circumstantial case such as this one, exculpatory results by individuals who found the victim’s body, and given from the rape kit and hair evidence on and near the that the victim’s body was recovered after being outdoors victim’s body likely could affect the inferences made for an extended period of time. In light of the slight from the statistical probabilities of the profiles probative value of any favorable results that might be developed in the case. Furthermore, although there was testimony of a microscopic match between the leg of obtained from testing on the pantyhose and the cigarettes, the pair of pantyhose in Swearingen’s trailer and the I cannot conclude that such results, by a preponderance of ligature used to kill Trotter, that type of evidence seems the evidence, would have affected the jury’s decision, and reminiscent of bite-mark evidence that has recently thus I agree that testing is not required as to those items. been questioned, and its value would be significantly undermined by exculpatory results from the rape kit and hairs found on and near the victim’s body.

IV. Conclusion

*15 Finally, Chapter 64 requires that the movant show “by a preponderance of the evidence that the request for The horrific nature of this crime cries for justice against the proposed DNA testing is not made to unreasonably the guilty person, but that punishment has yet to occur, in delay the execution of sentence or administration of part, because of the State’s persistence in challenging the trial court’s orders granting DNA testing in this case.

justice.” Id. art. 64.03(a)(2)(B). In Swearingen I, this Court upheld the trial court’s determination that his Given that Swearingen will be executed for this crime, motion was filed for purposes of delay. However, under can anyone rationally argue that the rape kit and hairs should not be tested when there is only circumstantial the statute as it existed then, it was permissible to hold it © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

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evidence of guilt, even if it is a mountain of it, and All Citations testimony from a jailhouse snitch? I would hold that DNA testing should be conducted on the rape kit and hair --- S.W.3d ----, 2015 WL 6513883 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.

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EXHIBIT B