Swenson v. State

654 S.W.3d 144

Aaron Caleb SWENSON, Appellant

v.The STATE of Texas, Appellee

No. 06-21-00126-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: July 20, 2022

Date Decided: October 7, 2022

Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for Appellant.

J. Randle Smolarz, Assistant District Attorney, Jerry D. Rochelle, Bowie County District Attorney, Texarkana, for Appellee.

Before Morriss, C.J., Stevens and van Cleef, JJ.

OPINION

Opinion by Chief Justice Morriss Fortunately for all involved, on the Saturday evening in April 2020 when Aaron Caleb Swenson drove from his Hooks, Texas, residence to Texarkana, Texas, with multiple loaded weapons in his vehicle, to conduct a self-styled hunt for a police officer to kill, Swenson wholly failed even to hurt any officer or physically endanger one. In fact, without one or more subsequent acts not found in this record, Swenson committed no act that tended to cause any officer's death. Along the way, however, Swenson broadcast live on social media his hunt for law enforcement victims and made clear his threats and intention to kill. From that attention-grabbing event, Swenson was charged with and convicted of terroristic threats, evading arrest or detention with a motor vehicle, and attempted capital murder. In this case, we address Swenson's appeal of his conviction of attempted capital murder.¹

Swenson argues that the State's evidence is insufficient to support his conviction for attempted capital murder because the acts shown by the State were acts of mere preparation that, under the law, did not tend to effect capital murder. We agree that the State failed to meet its burden of proof. Because no evidence shows any act of Swenson beyond preparation that tended, but failed, to effect the commission of capital murder, we reverse the conviction and render a judgment of acquittal.

(1) The Evidence at Trial

Evidence was presented of Facebook postings that Swenson had made in the weeks leading up to the evening of his live-streamed hunt for officers. Gregory Harry, an agent for the Department of Homeland Security,² testified that Swenson identified as a member of the "Boogaloo movement, kind of an anti-government militia movement" who "refer to Valhalla kind of affectionately as the place that they will go to when they die valiantly in battle."³ Members identified themselves by wearing Hawaiian print shirts. In one of his Facebook posts, Swenson said he had "his shirt" and was "ready to lay waste to some tyrants. Say the word, Boogs, and I roll with y'all.

Liberty or Valhalla."⁴

Swenson made his hatred of law enforcement and his intent to kill at least one of them amply clear. One post showed Swenson's comment that he would shoot "cops repeatedly until their bodies stopped jerking."⁵ Another posting was a photograph of police officers bearing a flag-draped coffin, indicating an officer killed in the line of duty. Swenson had captioned the photo "How police officers take out their trash." In two other posts, Swenson "invited" law enforcement officers to pull him over if they did not wish to go home at the end of their shifts. Swenson's publicly available utterances left no doubt of his state of mind or his antipathy toward law enforcement personnel.

On the day of the incident, Swenson drove to and around Texarkana expressing his intent and plan to murder a police officer. With his two hands, Swenson drove and sometimes also held his cell phone, directing it in various directions as he also acted as his own camera operator. As he drove around Texarkana, he looked for officers. According to the testimony of one officer who based his testimony on the audio track of the video recording of Swenson's search,⁶ on a single occasion during Swenson's search, he may have even taken a shotgun in hand and loaded it, but no evidence suggests that such possible event occurred anywhere near any officer or that such possible event included any direction of the weapon toward any intended victim.

Swenson eventually spotted one officer in a particular location, then turned around and returned to that location only to find that officer gone. He discussed his weapons and asked his live-stream audience which firearm he should use.⁷ He located another officer and announced his intent to go after that officer. But, almost immediately, he noticed that a number of officers were behind or around him. When presented with several officers in vehicles at a local Sonic drive-in, he drove away. And, when his vehicle finally came to a stop after officers pursued him, he stayed in his truck about twenty minutes without taking any provocative or violent action, despite his previous declarations. He surrendered without further incident.

(2) Standard of Review

In reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State , 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) ; Brooks v. State , 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Brooks , 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the judgment. Id.

We measure the legal sufficiency of the evidence in reference to the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State , 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) ; Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge [is] one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal , 286 S.W.3d at 327 (quoting Malik , 953 S.W.2d at 240 ). This standard "ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted." Malik , 953 S.W.2d at 240.

The State sought to establish that Swenson both had the specific intent to commit capital murder by killing a peace officer and committed an act beyond mere preparation that tended, but failed, to accomplish such a killing. A person commits capital murder of a peace officer if he intentionally or knowingly causes the death of a peace officer who is acting in the lawful discharge of an official duty and who the person knows is a peace officer. TEX. PENAL CODE ANN. § 19.02(b)(1), § 19.03(a)(1) (Supp.).⁸ Under the Texas "attempt" statute, "[a] person commits an offense if, [1] with specific intent to commit an offense, [2] he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." TEX. PENAL CODE ANN. § 15.01(a) (emphasis added). Missing from both the indictment and the evidence, however, is anything about the second element of the Texas "attempt" statute.

Count I of the indictment charged that Swenson

heretofore on or about April 11, 2020, did then and there, with the specific intent to commit the offense of Capital Murder, do an act, to-wit: had an organized and pre meditated plan to murder one or more police officers, made threats on a public social media that he planned to murder one or more police officers, armed himself with multiple weapons in order to carry out his plan to murder one or more police officers, drove vehicle around Texarkana , Texas and other areas of Bowie County, Texas broadcasting direct threats to murder police officers and attempted to locate a police officer so he could carry out his plan to murder one or more police officers, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.

(Emphasis added). The italicized language shows all active steps of Swenson alleged by the State that, it claims, collectively constituted attempted capital murder. In our view, based on the Texas "attempt" statute and the caselaw interpreting that statute, the indictment describes only preparation or intent within the statute.⁹ However, the intent factor is not in doubt.

The crux of this case is whether, within the meaning of Section 15.01(a) of the Texas Penal Code, any act of Swenson found in the evidence went beyond mere preparation and crossed over into an act constituting attempt. The element that is missing from this indictment and the evidence at trial is any instance of Swenson wielding, raising, pointing, or even grasping, any weapon, as well as his failure to, even arguably, be within striking distance of any intended victim while holding a weapon. Simply put, none of the italicized acts, individually or collectively, are capable of causing death. Nevertheless, the hypothetically correct jury charge for attempted capital murder would allege and seek a verdict that the accused had taken some action that was more than mere preparation that tended but failed to accomplish the murder of a police officer, and we measure the sufficiency of the evidence based on the elements of the hypothetically correct jury charge.

(3) Relevant Caselaw

Here, the question is, as was stated in Flournoy v. State , "whether appellant's conduct caused him to cross the ‘imaginary line,’ which separates ‘mere preparatory conduct,’ which is usually non-criminal, from ‘an act which tends to effect the commission of the offense,’ which is always criminal conduct." Flournoy v. State , 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). To constitute an attempt, an act can, but need not, be the "last proximate act" before the intended crime is effected. McCravy v. State , 642 S.W.2d 450, 460 (Tex. Crim. App. 198...