Condemned Montgomery Co. killer loses DNA appeal

By RENÉE C. LEE Houston Chronicle

After nearly a decade on death row, Larry Swearingen has hit another roadblock in his fight to prove his innocence in the murder of a 19-year-old college student in 1998.

The Texas Criminal Court of Appeals on Wednesday upheld the trial court's decision in January 2009 to deny Swearingen's motion for DNA testing of evidence in the capital murder case.
In the unanimous decision, the appeals court agreed that some evidence had already been tested and that Swearingen could not prove other evidence contained biological materials that could be tested for DNA. The law says there must be biological material present for a defendant to pursue post-conviction testing.

“In light of the overwhelming evidence of the appellant's guilt, even if we were to grant appellant's request,” the court said, Swearingen cannot show the test results would create at least a 51 percent chance that he would not be convicted.
In November, a federal district judge denied Swearingen's petition of actual innocence.
Despite Swearingen's numerous petitions and two stays of execution, he has not yet exhausted the appeals process.
His attorney, James Rytting, said he plans to file an appeal with the U.S. 5th Circuit Court of Appeals.
The Houston attorney said he believes the state appeals court is trying to close the gate on Swearingen by engaging in “political murder.”

“They're greasing the skids toward execution of an innocent man,” Rytting said. “I will fight up to the last minute.”

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