Texas Court of Criminal Appeal

TEXAS – CCA Denies DNA Testing in Swearingen Case


UPDATE

 

Court Reverses DNA Testing Decision in Swearingen Case

The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.

Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.

James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.

“They remanded it,” Rytting said of the Court of Criminal Appeals’ decision. “They didn’t say DNA testing is completely forbidden.”

Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.

“Here we are, back where we started,” he said.

february 5, 2014

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen “cannot prove the existence of biological material” that could be tested. Although the defense presented to the district court expert testimony that biological evidence would “likely” be found on the pantyhose that is not enough to secure testing, the court ruled. “[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

In other words, without testing, there can be no testing.

The court’s conclusion also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes, absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered “biological evidence per se” and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter’s fingernails produced DNA from an unknown male.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

TEXAS – EXECUTION ROBERT WAYNE HARRIS 6 p.m. Executed 6.43 p.m


From the Attorney General of Texas

Media Advisory: Robert W. Harris scheduled for execution

DALLAS – Pursuant to a court order by the 282nd District Court in Dallas County, Robert Wayne Harris is scheduled for execution after 6 p.m. on September 20, 2012.

In 2000, a Dallas County jury convicted Harris of capital murder for killing Agustin Villasenor and Rhoda Wheeler during the same criminal transaction.

FACTS OF THE CASE

The U.S. Court of Appeals for the Fifth Circuit, citing the Texas Court of Criminal Appeal’s description of the facts, described the murder of Agustin Villasenor and Rhoda Wheeler as follows:

[Harris] worked at Mi-T-Fine Car Wash for ten months prior to the offense. An armored car picked up cash receipts from the car wash every day except Sunday. Therefore, [Harris] knew that on Monday morning, the safe would contain cash receipts from the weekend and the cash register would contain $200-$300 for making change. On Wednesday, March 15, 2000, [Harris engaged in sexual misconduct] in front of a female customer. The customer reported the incident to a manager, and a cashier called the police. [Harris] was arrested and fired.

On Sunday, March 19[th], [Harris] spent the day with his friend, Junior Herrera, who sold cars. Herrera was driving a demonstrator car from the lot. Although [Harris] owned his own vehicle, he borrowed Herrera’s that evening. He then went to the home of friend Billy Brooks, who contacted his step-son, Deon Bell, to lend [Harris] a pistol.

On Monday, March 20[th], [Harris] returned to the car wash in the borrowed car at 7:15 a.m., before it opened for business. [Harris] forced the manager, Dennis Lee, assistant manager, Agustin Villaseñor, and cashier, Rhoda Wheeler, into the office. He instructed Wheeler to open the safe, which contained the cash receipts from the weekend. Wheeler complied and gave him the cash. [Harris] then forced all three victims to the floor and shot each of them in the back of the head at close range. He also slit Lee’s throat.

Before [Harris] could leave, three other employees arrived for work unaware of the danger. [Harris] forced them to kneel on the floor of the lobby area and shot each of them in the back of the head from close range. One of the victims survived with permanent disabilities. Shortly thereafter, a seventh employee, Jason Shields, arrived. Shields noticed the three bodies in the lobby and saw [Harris] standing near the cash register. After a brief exchange in which [Harris] claimed to have discovered the crime scene, pointed out the bodies of the other victims, and pulled a knife from a nearby bookshelf, Shields became nervous and told [Harris] he needed to step outside for fresh air. Shields hurried to a nearby doughnut shop to call authorities. [Harris] followed Shields to the doughnut shop, also spoke to the 911 operator, then fled the scene.

[Harris] returned the vehicle to Herrera and told him that he had discovered some bodies at the car wash. [Harris] then took a taxi to Brooks’s house. At Brooks’s house, [Harris] separated the money from the other objects and disposed of the metal lock boxes, a knife, a crowbar, and pieces of a cell phone in a wooded area. [Harris] purchased new clothing, checked into a motel, and sent Brooks to purchase a gold cross necklace for him. Later that afternoon, [Harris] drove to the home of another friend and remained there until the following morning, when he was arrested. Testimony also showed that [Harris] had planned to drive to Florida on Tuesday and kill an old girlfriend.

PROCEDURAL HISTORY

On April 10, 2000, a Dallas County grand jury indicted Harris for murdering Agustin Villasenor and Rhoda Wheeler.

On September 29, 2000, a Dallas County jury found Harris guilty of murdering Agustin Villasenor and Rhoda Wheeler. After the jury recommended capital punishment, the court sentenced Harris to death by lethal injection.

On February 12, 2003, the Texas Court of Criminal Appeals affirmed Harris’s conviction and sentence.

On October 6, 2003, the U.S. Supreme Court denied writ of certiorari.

On July 1, 2002, Harris sought to appeal his conviction and sentence by seeking an application for a state writ of habeas corpus with the state trial court.

On June 3, 2004, the trial court detailed findings of fact and conclusions of law recommending that Harris’s application be denied.

On September 15, 2004, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied habeas relief.

On September 14, 2005, Harris filed a federal petition for a writ of habeas corpus with the District Court for the Northern District of Texas.

On September 10, 2008, the district court ordered an evidentiary hearing set for January 5, 2009 on Harris’s mental retardation claim.

On December 3, 2008, Harris asked for a continuance, and the hearing was reset for March 19, 2009.

On March 5, 2009, Harris asked for another continuance, and the district court rescheduled the evidentiary hearing for May 12, 2009.

On May 7, 2009, Harris moved to cancel the evidentiary hearing and requested permission to instead supplement the record with documents, which was granted.

On November 13, 2009 the court ordered an independent evaluation of Harris to be performed by a court-appointed expert.

On February 8, 2010, the court appointed Dr. Paul Andrews to conduct a psychological evaluation of Harris.

On March 24, 2011, the district court denied Harris’s habeas petition and refused to issue a Certificate of Appealability (COA).

On April 21, 2011, Harris filed a motion to alter or amend the judgment in the district court.

On April 25, 2011 the district court denied Harris’s motion.

On March 15, 2012, the U.S. Court of Appeals for the Fifth Circuit denied Harris’s application for issuance of a COA.

On June 25, 2012, Harris filed a petition for writ of certiorari and stay of execution in the U.S. Supreme Court which is still pending.

On August 27, 2012, Harris filed a successive petition for writ of habeas corpus in the 282nd District Court.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Harris’s trial, jurors learned that Harris had previously been convicted of three burglaries and evading arrest. He had also been charged with unauthorized use of a motor vehicle. A court revoked his probation for absconding from a residential treatment program, and he spent the next eight years in prison. In prison, Harris resided mostly in administrative segregation due to several violations and aggressive behavior. He attended the Program for the Aggressive Mentally Ill Offender, but the incidents continued. The program ultimately discharged him for non-compliance. Fifteen prison personnel testified regarding Harris’s behavioral problems during his incarceration, which included setting fire to his cell, threatening to kill prison personnel, assaulting prison personnel and other inmates, dealing drugs, refusing to follow orders, and engaging in sexual misconduct.

MISCELLANEOUS

For additional information and statistics, please go to the Texas Department of Criminal Justice website at http://www.tdcj.state.tx.us.

TEXAS – Larry Swearingen back in court


                                                   http://www.myfoxhouston.com/video/videoplayer.swf?dppversion=11212

Swearingen official website 

        Swearingen Legal documents (pdf)

A defense expert in the hearing of convicted killer Larry Ray Swearingen reluctantly agreed with prosecutors Thursday that histology – the study of microscopic cell tissue – isn’t an accepted method to determine the time of death in a body.

Meanwhile, defense attorney Stephen Jackson accused the state of asking a “trick question” and stressed the science is valid.

“If the (science) was not well-based, it would have been excluded by now (by state District Court Judge Fred Edwards). And that hasn’t happened,” Jackson said.

The hearing, which began Monday in Edwards’ 9th state District Court, was ordered by the Texas Court of Criminal Appeals in July 2011 to hear Swearingen’s claim of innocence.

Like the first three days, the fourth day of the hearing focused on the condition of Trotter’s body when it was found. The defense argued the condition of the body and, more important, microscopic slides of Trotter’s heart and liver, prove she could not have died 22-25 days prior to discovery.

However, during cross-examination of Galveston County Medical Examiner Stephen Pustilnik, the prosecution challenged the validity of histology in determining the postmortem interval – the time from death to when a body is found.

On more than one occasion, Special Prosecutor Lyn McClelland asked Pustilnik to examine several books on forensic pathology and see if Pustilnik could locate “any reference in any book” that connects the use of histology to determine PMI.

“They don’t exist,” Pustilnik said.

“The defense’s position is not valid science,” Assistant District Attorney Warren Diepraam said.

The hearing resumes Monday with the prosecution to present its experts.

Swearingen’s Claim

Larry Ray Swearingen, 40, was sentenced in 2000 to die by lethal injection for the murder of 19-year-old Melissa Trotter of Willis. Since then, he has received three stays from execution. He claims he couldn’t have killed Trotter because he was in jail on Dec. 11, 1998. Trotter disappeared on Dec. 8, 1998 and her body was found on Jan. 2, 1999 in the Sam Houston National Forest.

…………………………………………………………………………………………………………………………………………………………………………………….

March 9 2012

 photo by Eric S. Swist

The canopy of trees so prevalent in the Sam Houston National Forest played a role in the condition of Melissa Trotter’s body when found 25 days after her disappearance, a meteorological expert testified Thursday.

Richard Grant, a professor at Purdue University, said the temperature at tree-top level is not dissimilar to the temperature in an open field.

However, Grant, an expert on microclimate, said the solar heat is diffused as it works its way to the forest floor.

Approximately 20 percent of the solar energy reaches the bottom of the forest, he said.

Questioned by prosecutor Warren Diepraam, Grant testified the temperatures on a forest floor tend to be more consistent than in a more open environment.

“The heat transfer is lower,” Grant said. “The temperature of the (forest) can’t be the same as an open field.”

Testimony in the hearing is expected to conclude today. Edwards may issue a ruling or send all evidence and testimony to the TTCA. Either way, a determination is not expected before a couple of months.

Source : http://www.yourhoustonnews.com

————————————————————————————————————————————————————————————————————–

March 8 2012

The battle of the experts continued Wednesday at the hearing of convicted killer Larry Ray Swearingen.

Forensic Entomologist Neal Haskell testified under cross-examination that he could extract a time of death based on DNA, weather data and autopsy photographs.

Prosecutor Warren Diepraam asked Haskell if the forensic evidence he was shown Wednesday was consistent with the condition of Trotter’s body found 25 days after her disappearance.

Haskell agreed.

Later in the day, Sibyl Bucheli, of Sam Houston State University, was called to the stand to testify about the decomposition of the human body.

Bucheli said data obtained at SHSU proved to be “entirely” consistent with the decomposition of Trotter’s body, Diepraam said.

“She (Bucheli) showed (Trotter’s) internal organs didn’t turn to mush as the defense alleged,” he said.

Defense attorney Stephen Jackson challenged Bucheli’s qualifications.

“She just received a PhD in Philosophy from Ohio State,” Jackson said. “She cherry-picked a body (at SHSU) that is not consistent with 17 days of 20-degree weather when the temperature was up in the 70s. It’s apples to oranges.”

The hearing is expected to conclude today.

source : http://www.yourhoustonnews.com

March 6 2012

The former Harris County medical examiner who conducted the autopsy in the Larry Swearingen murder case testified on Tuesday that his attorney misrepresented her opinion.

Dr. Joye M. Carter said during an evidentiary hearing that she did not reverse her opinion concerning how long Melissa Trotter‘s body had been in the Sam Houston National Forest, as Swearingen’s attorneyJames Rytting claimed in a 2007 affidavit.

Swearingen received a stay of execution after Rytting cited the affidavit in an appeal. He is on death row for the strangulation and sexual assault of Trotter, 19, who went missing on Dec. 8, 1998, from Lone Star College-Montgomery. Her body was discovered 25 days later.

During the 2000 trial, Carter testified the body had been in the woods for 25 days or so, placing the time of death on Dec. 8.

But Rytting tried to get Carter to say the wording in the affidavit indicated that the body was in the woods a maximum of 14 days, placing the time of death on or after Dec. 12.

Swearingen contends he could not have killed Trotter because he was in jail on Dec. 11 on an unrelated charge.

The hearing will determine whether Swearingen should receive a new trial.

http://www.larry-swearingen.com/attachments/File/Affidavit_of_Jerald_Crow_(2007).pdf