                                                                                        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-rick-
       perry-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-dna-
      examination-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



                                          1
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.




                                          2
                                  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.,

                                         3
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).

                                          4
      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




                                           5
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

                                           6
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

                                          7
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).


                                                   8
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




                                          9
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


                                          10
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,



                                          11
          "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.


                                                 12
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-dna-
      examination-cold-case-crime-scene-hairs).
4
    Williams & Kahn at 85 (epithelial cells deposited when assailant grabs or rubs clothing).


                                                  13
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

                                         14
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




                                          15
"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)
                                                      16
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.


                                                  17
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.).


                                                 18
       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.




                                          19
                                              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



                                         20
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

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                               1
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
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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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State v. Swearingen, --- S.W.3d ---- (2015)
2015 WL 6513883

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

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

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

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

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....
affidavit from Nasir was presented in Swearingen I. And
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State v. Swearingen, --- S.W.3d ---- (2015)
2015 WL 6513883

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

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    12
State v. Swearingen, --- S.W.3d ---- (2015)
2015 WL 6513883

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

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

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

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.

End of Document                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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