Larry Ray
Swearingen appeals his conviction of capital murder for which he
was sentenced to death. Tex. Penal Code Ann. §19.03(a)(2); Tex.
Code Crim. Pro. Article 37.071, §§ 2(b), 2(e), 2(g), 2(h).
Swearingen was convicted for murdering Melissa Trotter by ligature
strangulation in the course of committing or attempting to commit
kidnapping or aggravated sexual assault. Swearingen raises twenty-four
points of error. We will affirm.
I.
Points of Error Relating to Evidentiary Sufficiency
In his first
four points of error, Swearingen asserts that the evidence adduced
at trial was legally and factually insufficient to prove, beyond a
reasonable doubt, the aggravating elements of the capital offense
alternatively alleged by the State, that he intentionally caused
Trotter's death while in the course of committing or attempting to
commit kidnapping or aggravated sexual assault. Swearingen does
not contend that the evidence was insufficient to prove, beyond a
reasonable doubt, that he intentionally murdered Trotter.
The evidence,
viewed in the light most favorable to the State, shows that
Swearingen became acquainted with Trotter on Sunday, December 6,
1998, talked with her at length, got her phone number, and made
plans to see or talk with her again the next day. The next day,
she failed to show up for lunch after Swearingen had bragged to
his coworkers about his plans to have lunch with Trotter. His
coworkers teased him about being stood up even after he had told
them that he called Trotter and she said that she had been taking
a test. Swearingen appeared to be angry the remainder of the day.
Later that
evening, while using his truck to help transport some furniture,
Swearingen commented to Bryan Foster and William Brown that he was
going to meet a young lady named Melissa for lunch the next day,
and if everything went right, he was going "to have Melissa for
lunch." Brown noticed various items of clothing in the backseat of
Swearingen's truck. Swearingen called Trotter from Foster's house
and talked about meeting for lunch and helping her study for an
exam.
On Tuesday,
December 8, Swearingen met Trotter in the college library around
1:30 p.m., after Trotter had purchased some tater-tots from the
school cafeteria. After sitting by the computers and talking
amicably with Swearingen for some amount of time, Trotter left the
library with Swearingen around 2 p.m. Trotter's vehicle remained
in the college parking lot.
At 2:05
p.m., Swearingen returned a page he received and said he would
have to call back later because he was at lunch with a friend.
Swearingen
returned to his trailer sometime before 3:30 p.m. and left between
2:00 p.m. and 3:30 p.m., then returned again to the trailer
sometime before 5:30 p.m., asked his landlord some questions, then
left again between 4:30 p.m. and 5:30 p.m., to pick up his wife,
Terry Swearingen, from his mother's house. His neighbor, seeing
Swearingen's truck come and go, was not able to see through the
tinted windows or see who got in and out of the truck.
When
Swearingen and his wife returned home, a package of Marlboro Light
cigarettes and a red lighter were on top of the television. The
evidence showed that Trotter smoked Marlboro Lights and that
neither appellant or his wife smoked.
That evening,
Swearingen called Phyllis Morrison, a former girlfriend, and told
her that he was in trouble and the police might be after him.
On December
11, Swearingen was arrested pursuant to several outstanding
warrants, and while being handcuffed, said that his wrist and ribs
were sore from a bar fight he had been in the week before.
Trotter's
body was found in the Sam Houston National Forest on January 2,
1999, with a piece of hosiery still tied, as a ligature, around
her neck. The state of the body's decomposition was consistent
with having been in the woods approximately 25 days, supporting
December 8 as the date of death. The location where Trotter's body
was found was heavily wooded, secluded, and remote. The police had
previously searched the area three times without finding the body.
One had to be within twenty feet of the body before seeing it.
Swearingen knew his way around this area; he had driven a date
around the vicinity a few months earlier in his red pickup.
Trotter's
body was on its back in a pile of bushes, her right arm was above
her head and slightly to the left. Her top and bra were pulled up
under her arms, exposing her breasts and back. There were creases
on her back from her neck to her waist that could have been caused
by laying on the debris in the bushes for a period of time after
she had died. Her jeans were on and the fly was closed, but the
right rear pocket was torn downwards exposing part of her buttocks.
She was wearing red underwear. There were no scratches found on
her exposed skin as one would expect to find if she had been
dragged to the location. However, there was no soil on Trotter's
shoes. She had only one shoe on; the other shoe was lying nearby.
Trotter died
from asphyxia, lack of oxygen, by ligature strangulation. The
nylon ligature was a section cut from a pair of pantyhose; the
matching complementary portion of the pantyhose was found in
Swearingen's trailer. There also appeared to be a sharp-forced
injury on Trotter's neck that would have been inflicted before
Trotter died, while her blood continued to circulate. Although
there was subsequent animal activity and tooth marks on the neck
organs at that area, a cut with a sharp object, like a knife,
could not be ruled out.
The lack of
defensive wounds, such as broken fingernails, and the difficulty
of tying an elastic piece of nylon around a struggling victim,
suggested that Trotter may have been unconscious when the ligature
was applied. Although the state of decomposition made it difficult
to determine, the left side of Trotter's face was much darker and
at a more advanced stage of decomposition, which could be
consistent with having sustained a bruise on the left side of her
face. Evidence showed that animals are drawn to blood and a bruise
would collect blood close to the skin's surface. There was also a
deep bruise on Trotter's tongue, like a bite or a cut, consistent
both with being struck under the chin, which would push the lower
jaw up onto the tongue, and with biting down on the tongue while
being strangled or suffering a seizure. There was also
discoloration on Trotter's vaginal wall, a bruise that could have
been caused by sexual intercourse on the day of her disappearance.
There were
fibers found on Trotter similar to fibers from Swearingen's jacket,
others similar to the seat and head-liner in Swearingen's truck,
and others similar to the carpet in Swearingen's master bedroom.
There were also fibers found in Swearingen's truck that were
similar to fibers from Trotter's jacket. There were hairs in
Swearingen's truck that appeared to have been forcibly removed
from Trotter's head.
An internal
examination revealed that Trotter's stomach contained not only
what appeared to be a form of potato, but also what appeared to be
chicken and a small amount of greenish vegetable material.
While in
jail awaiting trial, Swearingen sent a letter to his mother that
the evidence showed Swearingen had written, with the help of an
English-Spanish dictionary and had his cellmate copy. The letter
stated it was written by a girl named Robin who could identify
Trotter's murderer as someone other than Swearingen and who knew
the details of the murder. The translation of the letter 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 wood and began to choke her with his hands at first, then he
jerked (jalar is slang) her to the bushes. He cut her throat to
make sure that she was dead. Her shoe came off when he jerked (slang)
her into the bushes. Her jabear (cannot make out/ no such word in
Spanish) 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.D. 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 shrub 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 3 other women in the past, 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 blonde 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
We turn
first to the question of legal sufficiency. The Fourteenth
Amendment's guarantee of due process of law prohibits a criminal
defendant from being convicted of an offense and denied his
liberty except upon proof sufficient to persuade a rational fact
finder of guilt beyond a reasonable doubt. In assessing the legal
sufficiency of the evidence to support a conviction, we consider
all the record evidence in the light most favorable to the jury's
verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational jury could have found
the accused guilty of all of the elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979); Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App.
1999). Furthermore, when the trial court's charge authorizes the
jury to convict on several different theories, as it did in this
case, the verdict of guilty will be upheld if the evidence is
sufficient on any one of the theories. Rabbani v. State,
847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992). If, given all of
the evidence, a rational jury would necessarily entertain a
reasonable doubt as to the defendant's guilt, the due process
guarantee requires that we reverse and order a judgment of
acquittal. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct.
1422, 122 L.Ed.2d 791 (1993).
A person
commits the offense of capital murder by intentionally causing the
death of an individual in the course of committing or attempting
to commit kidnapping or aggravated sexual assault. Tex. Pen. Code
§19.03(a)(2).
A person
commits the offense of kidnapping by intentionally or knowingly
restricting a person's movements, by either moving the person from
one place to another or confining the person, without consent,
i.e., by force, intimidation or coercion, so as to substantially
interfere with the person's liberty, and by doing so with the
intent to prevent the person's liberation by either secreting or
holding him in a place where he is not likely to be found or using
or threatening to use deadly force, force intended or known by the
person acting to cause, or in the manner of its use or intended
use is capable of causing death or serious bodily injury. Tex.
Penal Code §§20.01(1)(A),(2)(A)&(B), 20.03(a).
The offense
of kidnapping is complete when the restraint is accomplished and
there is evidence that the defendant intended to restrain the
victim by either secretion or the use or threat to use deadly
force. Mason v. State, 905 S.W.2d 570 (Tex. Crim. App.
1995).
A person
commits aggravated sexual assault if the person (1) intentionally
or knowingly, (2) causes the penetration of the anus or female
sexual organ of another by any means or causes the penetration of
the mouth of another by the sexual organ of the actor, (3) compels
the other person to submit or participate in such penetration by
the use of physical force or violence or without prior consent
from the other person and knowing the other person is unconscious
or physically unable to resist and (4) attempts to cause the death
of the victim or uses or exhibits a deadly weapon in the course of
the same criminal episode. Tex. Penal Code §22.021 (a)(2)(C)(Vernon
Supp. 1998). A person commits the offense of attempted aggravated
sexual assault if, with specific intent to commit aggravated
sexual assault, he does an act amounting to more than mere
preparation that tends but fails to effect the commission of the
aggravated sexual assault. Tex. Pen. Code §15.01(a).
Based on the
circumstantial evidence presented at trial, a rational jury could
have concluded that: Trotter left the college with Swearingen in
his truck. After she ate some chicken and green vegetables, he
made sexual advances which she rejected. This rejection upset him
and he hit her on the left side of her face. Then, through the use
of the force or intimidation created by having hit her, he
restrained her and substantially interfered with her liberty by
confining her in his truck while moving her to the forest without
her consent and that he did so with the intent to prevent her
liberation by either secreting her in a place where she was not
likely to be found or by using or threatening to use deadly force.
A rational
jury could also have concluded that at some point during the
restraint, knowing that Trotter was unconscious or physically
unable to resist, Swearingen intentionally committed acts in
furtherance of his intent to have sexual relations with her, such
as pulling up her bra and possibly penetrating her vagina. A
rational jury could conclude that Swearingen compelled Trotter to
submit or participate in such action by the use of physical force
and without Trotter's consent, as indicated by Trotter's statement
that she needed to go home when the conversation turned to sex. A
rational jury could then find that Swearingen did attempt to, and
succeeded in causing Trotter's death in the course of the same
criminal episode.
Swearingen
contends that the circumstantial evidence is insufficient to
support several necessary inferences: 1) the existence and timing
of Swearingen's intent to kidnap or sexually assault Trotter. 2)
The accomplished or attempted restraint. 3) The accomplished or
attempted sexual assault. 4) Trotter's lack of consent to either.
Swearingen focuses on the multitude of possible scenarios that
could have occurred between the time he and Trotter left the
college together and the time Swearingen placed Trotter's body in
the bushes. Swearingen's suggested scenarios, he argues, would be
equally consistent with the evidence.
Based on the
circumstantial evidence and the multitude of possible scenarios
suggested by the physical evidence, a rational jury could have
entertained a reasonable doubt regarding Swearingen's guilt. The
question, however, is whether a rational jury would have
necessarily entertained a reasonable doubt regarding the
aggravating elements of the offense.
Each piece
of evidence supporting the findings of kidnapping or sexual
assault might appear weak and tentative when viewed in isolation,
even in the light most favorable to the verdict. The forensic
evidence was inconclusive, and in many cases the expert witnesses
could not conclude that one explanation was more likely than not.
But they also could not rule out certain possibilities, such as
the existence of a bruise or a knife wound, or that Trotter was
unconscious when the ligature was applied.
Swearingen's
letter was not a confession or testimony presented by the
defendant as the truth, which the jury could believe or disbelieve
based on their evaluation of his credibility. Instead, it was
shown to be a fabrication created by Swearingen. It contained some
information contrary to the remainder of the evidence, such as the
description of another man and another vehicle involved. It
contained other information consistent with undisputed facts such
as the cause of death, the location of the body, and the color of
Trotter's underwear. It also contained some information that could
have been truth or fiction, such as the statement that she said
she had to go home when he began to talk about sex, that he hit
her, that it was after he hit her that he took her to the woods,
and that it was there that he began to choke her. The jury's
determinations regarding the veracity of such information was
supported by the jury's determinations regarding other evidence,
such as the food found in Trotter's stomach, the advanced
decomposition of the left side of her face, and Swearingen's
earlier comments regarding his intent to have sex with Trotter.
Thus supported, the letter provided a time line with which to
place the physical evidence into context and an explanation for
how the criminal episode began.
Although
Swearingen's letter did not specifically detail any of his acts in
furtherance of committing aggravated sexual assault, it did
support the hypothesis that Trotter's rejection of his sexual
advances began the cycle of violence that led to her death. It is
a rational inference, supported by forensic evidence, such as
Trotter's exposed torso and bruised vagina, that Swearingen
attempted to carry out his intent after he had rendered the
initial blow and before he performed the final act of stabbing her
in the throat "to make sure that she was dead," as he wrote in his
letter.
While each
piece of evidence lacked strength in isolation, the consistency of
the evidence and the reasonable inferences drawn therefrom,
provide the girders to strengthen the evidence and support a
rational jury's finding the elements beyond a reasonable doubt. We
cannot say, looking at the totality of the evidence, that the
evidence was so obviously weak that a rational jury would have
necessarily entertained a reasonable doubt that appellant
intended to have sexual intercourse with Trotter and that he
attempted to do so despite her desire "to go home" when he started
to talk about sex, or that he intended to restrain Trotter without
her consent and did so by moving her to a place where she was not
likely to be found and continuing to confine her by using what
turned out to be deadly force.
If the jury
concluded that Swearingen hit Trotter for rejecting his sexual
advances before driving her to the forest, the inferences about
which Swearingen complains fall into place. The scenario that
Swearingen killed Melissa Trotter in the course of kidnapping her
in order to sexually assault her after she rejected his sexual
advances is supported by the evidence, thus, the evidence is
legally sufficient to support the verdict. Points of error one and
three are overruled.
We turn next
to the question of factual sufficiency. Our state constitution
requires an appellate court to reverse a judgment of conviction if
the proof of guilt is so obviously weak as to undermine confidence
in the jury's determination, or the proof of guilt, although
adequate if taken alone, is greatly outweighed by the contrary
proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
1996). Although authorized to disagree with the jury's
determination even if probative evidence exists which supports the
verdict, a reviewing court must give due deference to the fact
finder's determinations concerning the weight and credibility of
the evidence and will reverse the fact finder's determination only
to arrest the occurrence of a manifest injustice. Id. In
assessing the factual sufficiency of the evidence to support a
conviction we consider all the evidence in a neutral light.
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999). If we
find the evidence to be factually insufficient, we must remand for
a new trial, so that a second jury will have a chance to evaluate
the evidence.
The only
significant independent evidence contrary to the verdict is the
testimony of Swearingen explaining that he left Trotter at the
college, while she was talking to another man, and went to see his
grandmother, and his grandmother's testimony that Swearingen
picked her up and took her to the post office around 2:30 p.m. on
December 8, 1998 and left her around 2:50 p.m. The State on cross-examination,
called into question his grandmother's memory of the date and time
and also the credibility of her statement as she had not informed
the authorities of her knowledge of Swearingen's whereabouts while
he languished in jail awaiting trial. The jury could have
reasonably disbelieved both witnesses' testimony. We must defer to
the jury's judgment of the witnesses' credibility.
Other
evidence tending to disprove or dispute guilt consists of
testimony that the forensic evidence would also be consistent with
other theories. For example, there was testimony that Trotter's
shirt could have been pulled up in the process of dragging her
body to the bushes. However, there was also testimony that no
scratches were found on the body as would be expected if exposed
skin were pulled across debris on the ground. There was testimony
that the creases on her back could have been produced by laying on
her clothing for a period of time after she had died, indicating
that her top was pulled up post-mortem, but there was other
testimony that the creases on her back could have been produced by
her bare back laying on the debris from the time she died. There
was also testimony that the vaginal discoloration could have been
caused by an infection that her medical records indicated she had
suffered.
Viewed in a
neutral light, even given the relative weakness of each individual
piece of evidence tending to prove guilt, the corroboration
between the forensic evidence and the rendition of the episode in
Swearingen's letter is sufficiently strong that we cannot say that
the proof of guilt is so obviously weak as to undermine our
confidence in the jury's determination or that the evidence
tending to disprove or dispute guilt greatly preponderates against
the jury's finding of guilt. See Johnson, 23 S.W.3d at
11; see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.
Crim. App. 2001). The evidence is therefore factually sufficient
to support the verdict.
Points of
error two and four are overruled.
II.
Jury Selection- Challenges for Cause
In points of
error five through seven, Swearingen contends the trial court
erred in denying his challenges for cause against certain
venirepersons. Swearingen challenged venirepersons Jeffrey Hollier,
Doreen Sipe, and Wayne Lightfoot on the basis of bias or prejudice,
arguing that each had a bias against the law applicable to the
case upon which Swearingen was entitled to rely, namely:
Swearingen's presumption of innocence. Swearingen exercised a
peremptory strike against each of these venirepersons. He
requested and received two additional peremptory strikes, but was
denied a third additional peremptory strike. Connie Taylor, a
venireperson to whom Swearingen objected, was seated on the jury.
To demonstrate harm, Swearingen must show that the challenges for
cause against all three of the venirepersons about whom he
complains were erroneously denied. See Penry v. State,
903 S.W.2d 715, 732 (Tex. Crim. App. 1995).
We review
the trial court's action denying Swearingen's challenges for cause
for abuse of discretion. Curry v. State, 910 S.W.2d 490,
493 (Tex. Crim. App. 1995). For challenges based on a
veniremember's alleged bias against the law, "we must determine
whether the veniremember's beliefs would prevent or substantially
impair him from following the law as set out in the trial court's
instructions and as required by the juror's oath." Lagrone v.
State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997). We review
the trial court's decision in light of the venireperson's voir
dire as a whole. When the record does not contain a clearly
objectionable declaration by the venireperson, or the record
demonstrates a vacillating or equivocal venireperson, we accord
great deference to the trial judge who had the better opportunity
to see and hear the person. Garcia v. State, 887 S.W.2d
846, 854 (Tex. Crim. App. 1994); Rachal v. State, 917 S.W.2d
799, 814 (Tex. Crim. App. 1996); Heiselbetz v. State, 906
S.W.2d 500, 511 (Tex. Crim. App. 1995).
Jeffery
Hollier testified that he suspected the defendant was "here for
some reason," and that he had "a slight bias against the defendant"
based on information he'd read in the media and the fact that he
had daughters, but that he had not formed the opinion that
Swearingen was guilty and he understood and agreed with the
presumption of innocence. The court asked whether Hollier could
set aside any preconceptions he might have, and Hollier responded,
in part, "that that bias certainly will not prevent me from being
open-minded and seeing whatever the evidence is and forming what I
think is the correct analysis of it." Because the juror could lay
aside his bias and render a verdict based on the evidence
presented in court, the trial court did not err by denying
Swearingen's challenge for cause regarding Hollier. See Bell
v. State, 724 S.W.3d 780, 797 (Tex. Crim. App. 1986)(venireperson
is not subject to a challenge for cause "if the juror can lay
aside his impression or opinion and render a verdict based on the
evidence presented in court.")
Doreen
Sipe's daughter had been sexually molested and her husband had
been abusive and was sent to the penitentiary for assault to a
peace officer. She repeatedly testified that she was able to
separate her own experience from the case at hand. She had not
formed any preconceived notions regarding Swearingen's guilt or
innocence. And, despite the similarity of the charges and the fact
that the victim was someone's daughter, she would base her
opinions strictly on the evidence presented in the case. Sipe's
testimony does not reflect any bias or prejudice against the
presumption of innocence. In fact, when asked if she could give
Swearingen the benefit of the presumption of innocence on the
charges, she answered that she could. The trial court did not err
by denying Swearingen's challenge for cause regarding Sipe.
See Garcia, 887 S.W.2d at 854.
Wayne
Lightfoot used the term "abducted" when summarizing the
information he had read about the case in the newspaper. When
asked whether he had concluded, from that information, that she
had been abducted, he explained, "I might have used this term a
little bit loosely, because what I meant was, I think in reference
to where she was last seen there at the Montgomery County College
or someone saw her at that point, and I probably shouldn't have
used the term "abducted"because - -." When asked if he had any
bias or prejudice against the defendant he answered that he did
not. The record does not reflect that Lightfoot had a bias or
prejudice against the defendant that would deprive him of the
presumption of innocence. The trial court did not err by denying
Swearingen's challenge for cause regarding Lightfoot. See
Garcia, 887 S.W.2d at 854.
Swearingen's
points of error five through seven are overruled.
III.
Motion to Suppress- no probable cause
In points of
error eight through thirteen, Swearingen asserts the trial court
erred in denying his motion to suppress evidence seized pursuant
to the search warrants issued on December 15 and 18, 1998, because
the supporting affidavits failed to set forth substantial facts
establishing probable cause for the warrants. He contends the
rulings violated the Fourth, Fifth, Ninth, and Fourteenth
Amendments to the United States Constitution, Article I, section 9
of the Texas Constitution, and Texas Code of Criminal Procedure
Article 38.23.
The State
argues that Swearingen had no standing to challenge the search of
his truck, as the State introduced evidence that the truck had
been stolen, Swearingen had personal knowledge that it was stolen,
and Swearingen did not provide any evidence as to why he had a
legitimate expectation of privacy in the stolen vehicle. The State
also argues that Swearingen failed to preserve any complaint that
the affidavit failed to establish probable cause, because his
motions to suppress complained only of a lack of probable cause
based on untruthful information contained in the affidavits. The
State contends that the inaccuracy, being the result of negligence
or mistake, need not require that the information be eliminated
from the affidavit.
Even if
Swearingen had preserved this error for review, he fails, in his
brief, to apply the law to the facts as required under the
appellate rules. See Tex. R. App. P. 38.1. Swearingen's
complaint discusses the law prohibiting unreasonable searches and
seizures and the law governing suppression hearings and concludes
that, as of December 15, 1998, the State could present no evidence
that appellant had committed a crime involving Trotter. Thus,
according to appellant, the facts submitted to the magistrate were
insufficient to justify that the objects of the searches were
probably located on the specified premises at the time the
warrants were issued. To support the issuance of a warrant, an
affidavit must set forth sufficient facts to establish that the
object of the search is probably located at the specified place at
the time the warrant issued. See Massey v. State, 933 S.W.2d
141, 148 (Tex. Crim. App. 1996). The challenged search warrants
were for Swearingen's truck, his trailer home, and his parents'
home. Facts that might be sufficient to support a search of one of
these places may be insufficient to support a search of another.
Swearingen failed to distinguish how the affidavits relate to the
various places to be searched. Therefore, he has failed to
adequately brief these points and error, if any, on these grounds
is waived. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.
Crim. App. 1995).
Points of
error eight through thirteen are overruled.
IV.
Motion to Suppress- confidential communication
In points of
error fourteen through twenty, Swearingen complains that the trial
court erred in denying his motion to suppress evidence seized from
his attorney's office because the evidence was a confidential
communication between attorney and client. He asserts the evidence
was seized in violation of the Fourth, Sixth, and Fourteenth
Amendments to the United States Constitution, Article I, section
9, of the Texas Constitution, Texas Code of Criminal Procedure
Articles 18.02(10) and 38.23, and Texas Rule of Evidence 503. The
item seized was the letter Swearingen had mailed to his mother
that stated, on its face, that it was written by someone named
Robin. Swearingen argues the warrant improperly sought to obtain a
communication made between appellant and his attorney which was
privileged under the rules of evidence and that the evidence was a
personal writing of the accused not subject to search and seizure
under Article 18.02(10).
First,
Swearingen steadfastly asserted he did not author the letter.
Additionally, the letter was sent to and handled by several third
parties. There was no evidence in the record that appellant
intended the communication to be privileged, and, because the
purpose of the letter was to perpetrate a fraud, the letter would
have been excepted from the attorney-client privilege. See
Tex. R. Evid. 503(a)(5),(b)(1). Therefore, the trial court
did not err in overruling appellant's motions to suppress the
evidence gained from the search of Swearingen's attorney's office.
Points of error fourteen through twenty are overruled.
V.
Motion to Suppress- warrantless search
Finally, in
points of error twenty-one through twenty-four, Swearingen asserts
the trial court erred in denying his motion to suppress evidence
seized from his residence without a warrant. He claims this
seizure violated the Fourth and Fourteenth Amendments to the
United States Constitution, Article I, section 9, of the Texas
Constitution, and Texas Code of Criminal Procedure Article 38.23.
Relevant to
these points of error, the evidence shows that, after Swearingen's
arrest on December 11, 1998, he and Terry, his wife, agreed to
move into his parent's home. On December 24, 1998, Terry left a
note for the landlord that they had to move and she returned both
of their keys to the landlord by January 1, 1999. Sergeant Leo
Mock went to the trailer on January 6, 1999, to see if anyone
still lived there. He found that the landlord and his wife had
just cleaned out the trailer in order to rent it to another party.
The landlord showed Mock where he had thrown out the trash and
Mock recovered a pair of pantyhose with one leg missing.
Abandonment
of property occurs if: (1) the defendant intended to abandon the
property, and (2) his decision to abandon the property was not due
to police misconduct. McDuff v. State, 939 S.W.2d 607,
616 (Tex. Crim. App. 1997); see also Brimage v. State,
918 S.W.2d 466, 507 (Tex. Crim. App. 1994). When the police take
possession of property that has been abandoned independent of
police misconduct, no seizure occurs under the Fourth Amendment.
McDuff, 939 S.W.2d at 616. Further, when a defendant
voluntarily abandons property, he lacks standing to contest the
reasonableness of the search of the abandoned property. Id.
Because
Swearingen voluntarily abandoned his trailer prior to January 6,
1999, he lacks standing to complain about any search conducted of
the trailer or trash removed from the trailer on that date. Points
of error twenty-one through twenty-four are overruled.
Therefore,
Swearingen's conviction for capital murder and his sentence of
death are affirmed.
DELIVERED
MARCH 26, 2003.
PUBLISH
