Convicted murderer files another appeal to avoid execution

HOUSTON – Larry Ray Swearingen has filed another appeal to try to prevent his execution scheduled for Wednesday.

Swearingen was convicted in July 2000 for the kidnapping, rape and murder of college student Melissa Trotter. The teen disappeared on Dec. 8, 1998, from what is now called the Lone Star College campus near The Woodlands.

Swearingen was initially arrested on Dec. 11 and Trotter’s body was found in Sam Houston National Forest on Jan. 2, 1999. 

This is the sixth time Swearingen has been scheduled for execution.

“Do you believe this (appeal) will lead to a sixth stay of execution?” asked KPRC investigative reporter Robert Arnold.

“Well, we're hoping it doesn't,” said Kelly Blackburn, chief of the trial bureau for the Montgomery County District Attorney’s Office.

What’s happening now?

Prosecutors with the District Attorney’s Office have filed a response to Swearingen’s latest appeal. Swearingen’s appeal attacks the state’s case against him on several fronts, primarily in the areas of Trotter’s time of death, cellphone information helping track Swearingen’s whereabouts and the murder weapon.

The defense has long argued the state got Trotter's time of death wrong, citing six pathologists who said she was killed after Swearingen was already in jail.

“Every argument that they've made has already been litigated in a court of law. Every witness that they've put forward has not held up,” Blackburn said.

Defense attorneys also argue that unreliable cell tower information, highlighting Swearingen's whereabouts, was used to knock down one of his alibis.

“The head of the operations for GE testified (that) they received and used the most accurate map possible,” Blackburn said.

Blackburn said investigators also have receipts and witnesses to back up that part of the case. Another assertion deals with blood found under Trotter's nails that match neither her nor Swearingen. A jury heard from a Texas Department of Public Safety analyst who said the blood came from contamination at the medical examiner's office.

The defense argues there was no scientific proof to back up that claim. Defense attorneys point to a recent letter from the DPS crime lab director saying that the analyst had “an insufficient basis upon which to develop an opinion regarding the contamination of
the samples,” court documents read.

Blackburn said that's more about semantics than substance. 

“DPS's analyst used her training and experience to testify: 'Look, it's possibly contaminated. I don't believe that it came from the crime scene,'” Blackburn said.

Blackburn said the amount of blood found under Trotter’s nails “could fit on the head of a pin” and that while a DNA profile was developed from that blood, no one has ever determined who is the source of the blood. Blackburn said that profile was even uploaded to a national database of evidence collected from other crimes, and no match was ever found.

Trotter was strangled with a half a pair of pantyhose, and the other half was found at Swearingen's trailer. The jury saw an image showing the two halves match along a cut line. Swearingen’s defense team had textile and imaging experts examine images of the two halves, and the experts claim they don't match.

“There's no way that a reasonable, sane person could look at those pantyhose and determine that they weren't a match,” Blackburn said.

“Still no doubts at all about his guilt?” asked Arnold.

“Zero. No doubts at all,” Blackburn said.

Blackburn also said these arguments don't take into account “a mountain of circumstantial evidence” connecting Swearingen to Trotter.

What’s next?

Blackburn said it is possible the court will stay next week's scheduled execution so it has time to digest all of these arguments.

There is no time frame as to when the Court of Criminal Appeals will make a decision in this case.