IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 73,851

 

LARRY RAY SWEARINGEN, Appellant

v.


THE STATE OF TEXAS



ON DIRECT APPEAL
FROM MONTGOMERY COUNTY

Johnson, J., filed a dissenting opinion joined by Price, J.



D I S S E N T I N G  O P I N I O N



I respectfully dissent. In June 2000, a Montgomery County jury convicted appellant of capital murder. Tex. Penal Code Ann. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, 2(g). Based on points of error two and four, I would reverse the conviction and remand to the trial court for a new trial.

The bulk of the state's evidence at trial involved tracing appellant's steps each day beginning two days before Melissa Trotter's disappearance and ending with appellant's arrest three days after her disappearance. The state then supplemented that testimony with evidence concerning Trotter's whereabouts and activities from morning through early afternoon on the day she disappeared and other evidence that could give rise to reasonable inferences as to some of her whereabouts after she was seen leaving campus with appellant. We know little of her activities before the day of her disappearance. The combination of the state's evidence and appellant's jailhouse confession to committing the murder (1) readily support the conclusion that appellant intentionally murdered Trotter and that he left her body in a place where it was not likely to be found.

However, this evidence shows only that appellant murdered Trotter. There must also be legally and factually sufficient evidence to show that appellant was in the course of committing one of the alleged underlying offenses, kidnapping or aggravated sexual assault, (2) to elevate the murder to a capital offense. Tex. Penal Code Ann. 19.03(a)(2).

In his first two points of error, appellant asserts that the evidence is legally and factually insufficient to show that he intentionally caused Trotter's death while in the course of kidnapping or attempting to kidnap her. In points three and four, appellant asserts that the evidence is legally and factually insufficient to show that he intentionally caused Trotter's death while in the course of sexually assaulting or attempting to sexually assault her.

In reviewing legal sufficiency, this Court looks at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

In a factual-sufficiency review, this Court views all the evidence, both for and against the jury's verdict, without the prism of "in the light most favorable to" the verdict and sets it aside only if that evidence is (1) so weak as to be clearly wrong and manifestly unjust, or (2) if the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex. Crim. App. 2001). A clearly wrong and unjust verdict occurs where the jury's finding "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

In conducting a factual-sufficiency review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict. Johnson, 23 S.W.3d at 7; Santellan, 939 S.W.2d at 164. A witness's credibility may impact how a jury perceives a particular piece of evidence, but it has no bearing on whether that evidence exists in the record.

A factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder, Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), but the reviewing court must remain cognizant that the state always carries the burden of proof to establish each and every element of a criminal offense at trial. Johnson at 11. Consistent with the Fourteenth Amendment's guarantee of due process of law, a criminal defendant cannot be convicted of an offense except upon proof sufficient to show guilt beyond a reasonable doubt. Tibbs v. Florida, 457 U.S. 31 (1982). Such proof is the state's burden; it is impermissible to shift the burden to appellant to produce evidence showing that he did not commit an offense. There is, and can be, no requirement that appellant produce evidence supporting his innocence.

The indictment in this case alleged that appellant intentionally caused the death of Melissa Trotter while in the course of "committing or attempting to commit the offense of kidnapping or [aggravated] sexual assault." Because the court's charge authorized the jury to convict on alternative theories, the verdict of guilt should be upheld if the evidence was sufficient on either of the theories. Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); see also Brooks v. State, 990 S.W.2d 278, 283 (Tex. Crim. App.)(when jury returns general guilty verdict on indictment charging alternative theories of committing same offense, verdict stands if evidence supports any of theories charged), cert. denied, 528 U.S. 956 (1999).

In addition to setting out appellant's activities before and after Trotter's disappearance, the state also presented testimony that appellant, while incarcerated in the Montgomery County jail awaiting trial, gave his cell mate, Ronnie Coleman, a letter that appeared to be written in Spanish and asked him to copy it onto another piece of paper. Appellant told Coleman, who did not know Spanish, that the letter was to his grandmother, who was more literate in Spanish than English. Appellant claimed that he needed Coleman to recopy the letter because his grandmother had trouble reading appellant's handwriting.

Appellant thereafter sent the copied version of the letter to his mother, claiming that someone had sent it to him in jail. Appellant's mother gave it to appellant's stepfather to have it translated. Appellant's stepfather took a copy of the letter to a friend, Detective Joe Alvarado of the Willis Police Department, who had the letter professionally translated. The translator, Genoveva Perez, had trouble translating the letter because of its poor grammatical structure and improper use of words. She ultimately translated the letter in two ways - one offering her interpretation of the letter and the other showing a literal translation of the words in the letter. Perez testified that the letter was not written by someone who knew Spanish. On cross-examination Perez testified that due to the poor quality of the Spanish used in the letter it was impossible to determine exactly what it said and she admitted that its content was subject to multiple interpretations.

According to Perez, the letter was purportedly written by a woman who was with her boyfriend when he, and not appellant, killed Trotter and left her body in the forest. The substance (as interpreted by the translator) is as follows:

Larry,

I have information that I need to tell you about Melissa and Wanda. I was with the murderer of Melissa, and with the one that took Wanda from work. I am not sure what he did with Wanda, but I saw everything that happened to Melissa. He was talking to her in the parking lot. They went to school together is what he told me. "We drove for awhile and then we went and had breakfast. I began to talk about sex when she said she had to go home." He hit her in the left eye, and she fell to the floor of her car. He took her to the woods and began to choke her with his hands at first, then he jerked her to the bushes. He cut her throat to make sure that she was dead. Her shoe came off when he jerked her into the bushes. Her jabear [not translated; no such word in Spanish] flank was torn. I am in love with him, and I don't want him in jail. The man in jail doesn't deserve to be in jail, either. To make sure that you know, I am telling you the truth. She was wearing red panties when R.C. murdered her. He choked her with his hands first, but he used a piece of rope, the truck, from his truck; he had a piece of black rope that he used in his boat to anchor it or something, he said. When he dragged her from the car, he put her in the shrubs on her back. I know that I should turn him in, but he told me that he would kill me, too, and I believe him. He has told about this murder to three other women in the past. I will tell you that he smokes and he smoked with her at the college at 2:30 and drove a blue truck. His hair is blond and brown and lives here. His name is Ronnie, but that is all I can tell, if you want more information, say it on paper and I will continue to write, but I want to come in.

Robin



Although appellant claimed that he received this letter from a third party, the state presented evidence that appellant had been seen in possession of a Spanish/English dictionary, and it offered a list of translated words into evidence. A handwriting expert told the jury that the handwritten list of words with their Spanish translations matched appellant's known handwriting. Thus, the state presented evidence supporting a reasonable inference that appellant was the actual author of the letter.

The admittedly counterfeit letter that Ronnie Coleman copied contained some facts about the crime which were unknown to the public and consistent with the forensic evidence (e.g. the red panties), and other facts which were obviously not true (e.g. breakfast, her car, black rope). From this mixture of some accurate information, factual inconsistencies, and obvious falsehoods, the prosecutor hypothesized that the statements made by the author necessarily support a finding that appellant kidnapped Trotter.

While the prosecutor's hypothesis is weak, given the readily apparent falsehoods surrounding both the creation and content of the spurious letter, I would hold that the inferences which may reasonably be drawn are legally sufficient to support a verdict of guilty of murder in the course of kidnapping Trotter. I would overrule point of error one.

Because the evidence is legally sufficient to support the verdict on the theory of kidnapping, I need not address point of error three, which challenges legal sufficiency based on the alternate theory of sexual assault. Rabanni, at 558-59.

I turn now to the issue of factual sufficiency. (3) On the allegation of kidnapping, the evidence shows that appellant had a lengthy conversation with Trotter two days before she disappeared and was seen with her again on the day of her disappearance. However, the picture of events becomes very cloudy after about 1:30 p.m. on December 8, 1998. The jury could reasonably infer from the evidence that Trotter voluntarily left the campus with appellant in his truck, went to McDonald's to pick up some food, and then went to appellant's trailer. Eyewitness testimony placed appellant at his trailer around 3:00 p.m., and cell phone records lead to the inference that appellant went to the area around Sam Houston National Forest for a while about that same time.

However, no evidence was presented to prove that appellant took a still-living Trotter to the woods involuntarily. Without evidence of the involuntary restraint or transport of a living person, there can be no finding of kidnapping. See Herrin v. State, 73,987, 2002 Tex. Crim. App. LEXIS 238 (Tex. App. Dec. 18, 2002)(Holcomb, J. Majority Op.). See also, Gribble v. State, 808 S.W.2d 65, 72 n.16 (Tex. Crim. App. 1990)(plurality op.)(noting that "[w]e accept for purposes of analysis that a dead body cannot be kidnapped"), cert. denied, 501 U.S. 1232 (1991).

According to the state's medical expert, Trotter's body showed no defensive wounds, no indication of restraints, and no scratches such as would be expected if she had been forced through the underbrush or if her body had been dragged into the woods. Neither was there soil on her shoes, indicating that Trotter's body was carried into the woods. There are many equally reasonable ways, other than during a kidnapping, in which the torn pocket on her jeans could be explained, among them attempting to lift a body by pulling on the pocket or catching the pocket on a door handle, tree limb or other object while moving a body. Likewise, the position of Trotter's blouse and bra is consistent with appellant moving her body by pulling on her torso. Forensic evidence showed flecks of paint from the bed of appellant's truck on Trotter's clothing, but no evidence shows whether she was dead or alive when the paint was deposited on the clothing. A reasonable inference could be made that appellant killed Trotter at the trailer before taking her body to the woods, as the described circumstances would indicate that a living passenger would ride in the cab of the truck, not in the bed.

To support a verdict of capital murder, the state must prove that appellant was in the course of kidnapping or attempting to kidnap Melissa when he murdered her. Tex. Pen. Code 19.03(a)(2) (emphasis added); Herrin, at * 8. The record is devoid of evidence showing that appellant was in the process of kidnapping Trotter when she was murdered. Evidence admitted at trial was sufficient to prove that appellant killed Trotter, but this is not enough. The state had the burden of proving that he was in the course of kidnapping or attempting to kidnap Trotter when he murdered her. The state failed to do so.

The letter that appellant fabricated and gave to Ronnie Coleman to copy was offered by appellant to show that someone else had committed the crime while, at the same time, the state offered the letter to show that appellant took Trotter to the woods and thereafter choked her. The letter is full of falsehoods and inconsistencies, and many of its contentions are not supported by or are directly contradicted by the remainder of the evidence in the record. Other parts of the letter may or may not be factually correct. In fact, according to the translator, we cannot even be sure exactly what the letter says. Without supporting evidence, we should not assume or speculate that appellant killed Trotter in the woods.

As noted above, the state's own medical expert testified that there were no defensive wounds or scratches on Trotter's body and no indication that she had been restrained in any way. It is illogical to rely on a faked letter, that cannot even be translated accurately, to corroborate what is otherwise weak and inconclusive forensic evidence to reach the conclusion that the evidence was factually sufficient to show that appellant kidnapped Trotter, while at the same time decrying the letter as blatantly bogus.

The evidence, standing alone, is too weak to support the factual conclusion that appellant was in the course of abducting Trotter when he killed her. Without more, I find it impossible to hold that the evidence in this case was factually sufficient to show that appellant killed Trotter in the course of kidnapping or attempting to kidnap her. I would sustain point of error number two.

Regarding point of error number four, the evidence supporting the underlying offense of aggravated sexual assault is essentially non-existent. The only evidence the state presented to prove that appellant sexually assaulted Trotter was testimony from its medical examiner that she found a discoloration on Trotter's vaginal wall, which she subsequently determined may have been a bruise.

When questioned, the State's medical expert, Dr. Joye Carter, testified that she could not accurately assess when the discoloring occurred; the best estimate that she could give was that it may have been received up to three days prior to Trotter's death. She conceded that she had no way of determining how the discoloring occurred or whether it was a result of sexual intercourse and that such a bruise could have developed from normal sexual activity. In fact, Dr. Carter testified that she found no evidence of any penetration of Trotter's vagina, anus, or mouth. Because we know little of Trotter's life in the days before her death, we are left with important, unanswered questions. For example, was she sexually active? If so, did she have sexual relations with someone else in the three days before her death?

Appellant's expert disputed the conclusion that the discoloration of the vaginal wall was in fact a bruise, but testified, as did Dr. Carter, that, if it were a bruise, such a bruise could be sustained during normal sexual intercourse. Appellant's expert also testified that Trotter's medical records indicated that she had pelvic inflammatory disease and that pelvic inflammatory disease could be the cause of such a discoloration. The evidence showed no scratches, defensive wounds or signs of restraint. There was testimony that hair samples were found in appellant's bed, but the forensic expert testified that they were not from Trotter. There was also evidence that appellant's bed was disheveled, but there was absolutely no evidence connecting Trotter to the bed. When her body was recovered, her jeans were on and the fly closed. There was no evidence of penetration. As noted above, a torn back pocket may occur in a number of ways and does not unequivocally prove actual or attempted sexual assault. Without more, the evidence is too weak to sustain a verdict for capital murder based on a finding of sexual assault.

Again, reliance on the letter that Ronnie Coleman copied is misplaced. Statements in the bogus letter, as interpreted by Perez ("'I began to talk about sex when she said she had to go home.' He hit her in the left eye, and she fell to the floor of her car."), are not "sufficient to confirm that Trotter's rejection of his sexual advances began the cycle of violence that led to her death." Talking about sex, even hitting someone following a conversation about sex, is not an aggravated sexual assault. Again, it is illogical to both characterize the copied letter as a blatant forgery created in an attempt to escape punishment by creating phony evidence, and to then use the letter as factual proof of sexual assault, especially in light of the fact that the letter could not be accurately translated. The state produced no evidence at trial that supports a finding that appellant had consensual sexual intercourse with Trotter, much less that he sexually assaulted her. I would sustain point of error number four.

There is, at best, a weak chain of inferences and assumptions pointing to a conclusion that appellant kidnapped or sexually assaulted Trotter or attempted either. These inferences and assumptions are not supported by the record. I believe that the evidence in this case is factually insufficient to support a conviction of capital murder. I believe that the evidence is sufficient to support a conviction for murder, which was included as a lesser-included offense in the trial court's jury charge, but because I would make a finding of factual insufficiency rather than legal insufficiency, the only option available to us is to remand to the trial court for a new trial. (4)

I respectfully dissent.

Johnson, J.

Filed: March 26, 2003

En banc

Publish

1. On May 17, 2000, inmate Bill Kory became appellant's cellmate. Appellant later told Kory that he was "in [jail] for murder of someone." When asked whether he had committed the crime, appellant responded, "F---, yeah, I did it."

2. The indictment alleged only sexual assault, but appellant did not object to the error, and it is therefore waived.

3. While there are two ways of determining factual insufficiency, I am applying only the first method because, aside from any inferences created by an admittedly fabricated letter, there is no evidence in the record that supports a finding that appellant kidnapped or sexually assaulted Trotter. With no evidence in the record, the evidence is clearly so weak as to make the verdict clearly wrong and unjust.

4. If a reviewing court determines that the evidence is legally insufficient, it must either render an acquittal or reform the judgment to reflect a conviction of a lesser included offense. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); Herrin at * 25. When conducting a factual sufficiency review, however, an appellate court cannot substitute its judgment for that of the fact finder since this would violate the defendant's right to trial by jury. Clewis at 133. Accordingly, a reviewing court must vacate a conviction based on factually insufficient evidence and remand the cause for a new trial. Tibbs v. Florida, 457 U.S. 31 (1982); Clewis at 133.