SWENSON, AARON CALEB v. the State of Texas
Not yet reported (2024)
Rule of Law:
A defendant commits criminal attempt rather than mere preparation when, with the specific intent to kill, they engage in 'hunting' behavior by searching for a victim, identifying a specific target, and moving to the target's location with a loaded weapon ready for use.
Facts:
- Swenson, a member of the anti-government 'Boogaloo' movement, posted messages on social media expressing a desire to 'hunt the hunters' and kill police officers.
- Swenson began a Facebook livestream while driving at night, verbally confirming his intent to kill police officers and stating that he was prepared to die.
- While driving, Swenson spotted Officer Price's marked patrol car and stated on the livestream, 'There's one... Found my prey.'
- Officer Price, who was monitoring the livestream, realized he was the target and drove away from his location to avoid an ambush.
- Swenson performed a U-turn and drove specifically to the location where he had seen Officer Price, stating, 'We’re on the way to the prey.'
- Upon arriving and finding the officer gone, Swenson drove around the immediate area for nine minutes searching for the officer, asking, 'Where'd he go?'
- Swenson possessed three loaded firearms in his vehicle, including a 9mm handgun with a round in the chamber wedged between the driver's seat and the center console.
- After a police pursuit and a standoff, Swenson surrendered to law enforcement.
Procedural Posture:
- The State of Texas indicted Swenson for attempted capital murder.
- The trial court convicted Swenson of attempted capital murder.
- Swenson appealed the conviction to the Sixth Court of Appeals.
- The Sixth Court of Appeals reversed the conviction and rendered a judgment of acquittal, ruling the evidence showed only 'mere preparation.'
- The State filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals.
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Issue:
Does a defendant's conduct constitute an act amounting to more than 'mere preparation' for capital murder when he expresses an intent to kill a police officer, arms himself, spots a specific patrol car, and drives to that officer's location with a loaded weapon, even if the officer evades him before a confrontation occurs?
Opinions:
Majority - Presiding Judge Keller
Yes, the Court held that the Appellant crossed the line from mere preparation to attempt because he 'hunted' a particular individual with the expressed intent to kill. The Court reasoned that the statutory requirement for an act 'amounting to more than mere preparation' does not require the last proximate act, such as aiming a weapon. Drawing guidance from the Model Penal Code, the Court noted that 'searching for or following the contemplated victim' is a substantial step that corroborates criminal intent. The Court emphasized that the law of attempt allows for a 'reasonable margin of safety' for law enforcement to intervene before a crime is complete. Because Swenson had the intent to kill, identified a specific victim, and moved to that victim's location with a hot weapon, he committed attempted capital murder despite the officer effectively evading the attack.
Analysis:
This decision significantly clarifies the boundary between 'mere preparation' and criminal attempt in Texas, particularly for violent crimes. By explicitly validating a 'hunting' theory of attempt, the Court of Criminal Appeals aligns Texas jurisprudence more closely with the Model Penal Code's 'substantial step' analysis, even though the Texas statute uses different language. This ruling lowers the evidentiary bar for attempt in active shooter or assassination-style scenarios, permitting law enforcement to intervene and prosecutors to secure convictions once a suspect actively seeks a specific target with lethal intent and capacity, rather than waiting for the suspect to physically confront or aim a weapon at the victim.
