                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT                                     July 31, 2006

                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                         No. 05-70039


                                  LARRY RAY SWEARINGEN,

                                                                     Petitioner-Appellant,

                                              VERSUS


                  NATHANIEL QUARTERMAN, DIRECTOR,
  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                                      Respondent-Appellee.



               Appeal from the United States District Court
           for the Southern District of Texas, Houston Division
                                       (4:04-CV-02058)


Before JONES, Chief Judge, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

       Petitioner Larry Ray Swearingen (“Swearingen”), a Texas inmate

sentenced to death for the capital murder of Melissa Trotter,

appeals the district court’s denial of his federal petition for a

writ of habeas corpus. The district court granted a Certificate of

Appealability (“COA”) for Petitioner’s sufficiency of the evidence

claim. Petitioner has not requested that this Court grant a COA on

any of the other issues addressed by the district court.


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
       Petitioner’s capital conviction resulted from a Texas jury’s

determination that Petitioner murdered Melissa Trotter during the

commission or attempted commission of either (1) a kidnapping or

(2) an aggravated sexual assault. Petitioner in his brief does not

dispute the sufficiency of the evidence supporting the jury’s

determination that he murdered Trotter, but does dispute the

sufficiency of the evidence relating to kidnapping and sexual

assault.       Because the jury’s verdict did not specify whether the

jury found Petitioner death-penalty-eligible under the kidnapping

or sexual assault precursor, Petitioner must show that the evidence

was insufficient to support both theories.                               See Santellan v.

Cockrell, 271 F.3d 190, 196 (5th Cir. 2001).

       For essentially the reasons state by the district court in its

written memorandum and order, we find that Petitioner cannot make

the requisite showing.                Our independent review of the evidence

compels us to conclude that, as to both kidnapping and sexual

assault, “a reasonable trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”                                  Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979).1


       1
        Petitioner also argues that the Texas Court of Criminal Appeals (“TCCA”) used an erroneous
standard in its review of the sufficiency of the evidence. Namely, Petitioner contends that the TCCA
analyzed the issue under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), rather than
Jackson v. Virginia, 443 U.S. 307 (1979), and therefore applied a rule that contradicted applicable
Supreme Court law. See 28 U.S.C. § 2254(d)(1). We agree with the district court that Petitioner’s
argument is unconvincing. The TCCA cited Jackson and analyzed the sufficiency of the evidence
under a framework that adequately resembled, and certainly was not contrary to, a Jackson analysis.


                                                 2
        The district court’s denial of Petitioner’s federal habeas

petition is AFFIRMED.2

AFFIRMED.




        2
         We note also that at various times in his briefings Petitioner states that he intends in the
future to raise a claim based on actual innocence. If so, Petitioner must file his claim promptly or run
the risk of having that claim deemed dilatory and therefore rejected. Such a dilatory filing could also
raise the issue of bad faith on the part of Petitioner’s attorneys and lead to the imposition of sanctions.


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