The state insisted that the length of hose matched a second piece of hosiery retrieved from the trailer home Swearingen shared with his wife, Terry.
In Swearingen’s case and others, the court has construed the right to testing in a way that severely narrows eligibility — an approach that Swearingen’s lawyers say threatens to make the once powerful law a dead letter, potentially closing access to testing in all cases where there is a claim of wrongful conviction.
The revision also expanded the definition of biological material to mean any item that contains “blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing,” including “the contents of a sexual assault evidence collection kit.” Swearingen filed for testing again in 2013.
The CCA sent the matter back to Case for additional consideration, and just six months later, the judge again approved the testing.
In July, a federal judge in Austin dismissed the case; the lawyers have asked the judge to reconsider his ruling and the matter is pending.