Attorneys for convicted killer Larry Ray Swearingen filed opposition to the state’s motion to set an execution date, arguing the Court of Criminal Appeals remanded the case for further proceedings.
A motion was filed in early March with the state of Texas for a tentative execution date of April 24. However, Swearingen “respectfully” requested a hearing in the 9th state District Court of Judge Kelly Case the week of May 12.
That hearing, if approved, would consider the effect of the appeals court’s remand on DNA testing, as well as the state’s request for an execution date, said James Rytting, Swearingen’s attorney.
“If they (the CCA) wanted to issue an execution date they could have established one by themselves,” Rytting said.
Swearingen was convicted for the murder of 19-year-old Melissa Trotter. She was last seen leaving the Montgomery College campus with Swearingen on Dec. 8, 1998. Her body was found by hunters in the Sam Houston National Forest Jan. 2, 1999, north of Lake Conroe.
Trotter’s death was determined to be a homicide, and that she was sexually assaulted then strangled by piece of pantyhose.
Bill Delmore, appellate attorney with the Montgomery County District Attorney’s Office, said Swearingen’s attorneys have started “grasping at straws.”
In their opposition to the state’s request for an execution date, Swearingen’s attorneys contend where the Court of Criminal Appeals has remanded the case for additional proceedings, it “would be an abuse of discretion” to ignore the “plain language” of the opinion issued by the appellate court in this case and instead set an execution date.
However, Delmore said Swearingen’s case was remanded back to the district court in Montgomery County to deny future requests for DNA testing, and to set an execution date.
A briefing schedule for both parties regarding the effect of the appeals court’s remand was suggested by Rytting on or before May 2.