EX PARTE SWEARENGIN v. << (2025)

DISSENTING OPINION

Applicant was convicted of capital murder and sentenced to life in prison without parole. He now raises actual innocence and ineffective-assistance claims. I cannot agree with the Court's decision to remand on Applicant's ineffective-assistance claims because those claims are either patently without merit or are woefully inadequate when it comes to alleging facts that might warrant habeas relief. His claim that the indictment was amended a day before trial is refuted by the record, his claim about the prosecutor's argument is based on a mistaken view of jury-unanimity requirements, and he fails to allege sufficient facts regarding his claims that counsel should have investigated and called witnesses.

A. Ground 1: Actual Innocence

The Court doesn't remand on Applicant's actual-innocence ground, so I address this claim briefly only for the sake of completeness. Applicant admits he was present when the victim was killed. His claim is that a now-deceased individual, Juan Carrasco, invaded the home, killed the victim, and wounded Applicant. Applicant relies on hearsay statements he alleges were made by Carrasco that implicated Carrasco in the murders. Establishing actual innocence is a Herculean task that requires a showing, in light of newly discovered or newly available evidence, that no reasonable juror could have found the applicant guilty.¹ Applicant does not even come close to making such a showing.

B. Grounds 2 and 4: Ineffective Assistance for Failing to Investigate and Call Witnesses

To warrant a remand for further investigation, a habeas applicant must allege facts that, if true, might entitle him to relief.² The application “must allege specific facts so that anyone reading the writ application would understand precisely the factual basis for the legal claim.”³ Applicant has not done so.

Applicant says that counsel should have uncovered evidence of Carrasco's involvement, but he doesn't say what admissible evidence any such investigation would have led to. In his general fact section, Applicant says Carrasco admitted to killing the victim, but he doesn't say who Carrasco made these admissions to. Moreover, his claim is that the admissions are recorded in sworn affidavits taken after Carrasco's death, and he doesn't explain how counsel could have obtained this information earlier. And he doesn't supply the alleged affidavits, so we cannot evaluate them. Even if being in prison is an impediment to obtaining the affidavits, he should at least have said who purportedly gave them. And his pointing to rumors, tips to law enforcement, and suspicious behavior doesn't mean anything when he doesn't pinpoint sources for the rumors, tips, or suspicious behavior.

Applicant says Carrasco told a witness that he “made someone pay,” but he doesn't say who the witness is or how this statement relates to the victim. Applicant also says that a close friend of Carrasco's was privy to Carrasco's direct confession, but he does not name this “close friend.” He says a neighbor reported seeing someone match Carrasco's description, but he doesn't name the neighbor and doesn't explain when, where, and to whom the neighbor made this statement. He says Carrasco bragged about “settling a score,” but he doesn't say who Carrasco bragged to or explain how this relates to the victim. Applicant says a co-worker could have testified that Applicant exhibited no unusual behavior or injuries after the murder, but he doesn't name the co-worker. Also, this supposed statement by the co-worker would conflict with Applicant's current theory that he was a victim of the crime, committed by Carrasco.

Applicant says he tearfully professed his innocence to a family member, but he doesn't name the family member, and any such profession is pure hearsay and self-serving, and thus not admissible.⁴ He says an expert could have been called to testify about the injuries he sustained, but he points to nothing to actually support his claim nor does he even explain what his injuries were and what the expert's testimony would have been. Also, I would expect this sort of claim to be backed by an affidavit from an expert, and he does not supply any.

C. Ground 3: Ineffective Assistance for Failing to Challenge the Indictment

Applicant was initially indicted for capital murder on the theory of murder in the course of aggravated sexual assault. The State later re-indicted Applicant for capital murder, with the murder occurring in the course of three different offenses: aggravated sexual assault, robbery, and burglary. Applicant claims that the State sought its re-indictment a day before trial and that counsel performed deficiently in failing to challenge this new indictment when there was not sufficient time to prepare a defense to the new theories of the offense.

But the record refutes Applicant's claim. The re-indictment was filed on March 9, 2009.⁵ The trial court's docket sheet shows that various subpoenas issued from June through October 2009. In June, the defense filed a motion to suppress, a motion for list of witnesses, and a motion for the jury to set punishment. In August, the State filed a list of expert witnesses and a notice of its intent to offer extraneous offenses. In September, the State filed another extraneous-offense notice and a witness list. The docket sheet further shows that Applicant was found guilty on October 8, 2009. The judgment of conviction shows that it was entered that same day. And Applicant concedes that the State did not seek the death penalty. Even assuming that the trial took place over a period of days, or even weeks, Applicant had months to prepare on the new allegations.

D. Ground 5: Ineffective Assistance for Failing to Object to Prosecutor's Jury-Unanimity Argument

Applicant claims that, during closing argument, the prosecutor explicitly told the jurors that they did not all have to agree on which underlying felony Applicant committed, so long as they agreed that he committed capital murder “one way or the other.” Applicant says that, “while arguably permitted under Texas precedent,” a non-unanimous verdict is “a disfavored concept that edges against the constitutional unanimity requirement.” He also says that the prosecutor's argument lowered the State's burden by suggesting that jurors need not be concerned about which crime is proven—“obliquely encouraging a patchwork verdict.”

But the law is well-established that a jury in a capital murder prosecution need only be unanimous about the predicate murder and need not be unanimous about the additional felony that the murder is committed in the course of.⁶ The prosecutor's argument was not improper, and counsel could not have been ineffective for failing to object it.

Concluding that Applicant has not made allegations that would justify a remand, I would simply deny relief. I respectfully dissent.

FOOTNOTES

1.   Ex parte Cook, 691 S.W.3d 532, 560-61 (Tex. Crim. App. 2024).

2.   Ex parte Dennis, 665 S.W.3d 569, 572 (Tex. Crim. App. 2022).

3.   Id.

4.   See Tex. R. Evid. 802; Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006) (self-serving hearsay statements about remorse inadmissible); Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000) (“As such, the self-serving nature of appellant's statement that he did not want to participate in the offense outweighs the minor inculpatory significance of the statement.”).

5.   The original indictment was filed on March 19, 2007.

6.   Saenz v. State, 451 S.W.3d 388, 391 (Tex. Crim. App. 2014); Gardner v. State, 306 S.W.3d 274, 301-02 (Tex. Crim. App. 2009).