Swain v. State

• Decision Date: 25 January 2006
• Docket Number: No. AP-74854.,AP-74854.
• Citation: 181 S.W.3d 359
• Parties: Mario Rashad SWAIN, Appellant, v. The STATE of Texas.
• Court: Texas Supreme Court

181 S.W.3d 359

Mario Rashad SWAIN, Appellant, v. The STATE of Texas.

No. AP-74854.

Court of Criminal Appeals of Texas, En Banc.

November 2, 2005.

Rehearing Denied January 25, 2006.

COPYRIGHT MATERIAL OMITTED

Patrice Savage, Carthage, for Appellant.

William M. Jennings, Criminal District Atty., Lance Larison, Carl Dorrough, Asst. Criminal District Attys., Longview, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in November 2003 of capital murder. Tex. Penal Code § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced appellant to death. Art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises nineteen points of error, many of which are challenges to the admission of his oral and written statements as well as other evidence which he claims are the fruits of an illegal arrest. A brief summary of the facts surrounding his arrest and the taking of his statements will be helpful to address these points of error. We affirm.

STATEMENT OF FACTS

Lola Nixon, the victim, lived in a house on Iris Circle in Longview, Texas. Nixon made plans to have dinner with friends on the evening of December 27, 2002, but never arrived at the restaurant. Neighbor Ashley Dulweber noticed a truck parked outside a vacant house on their street at around 9:00 p.m. that evening and reported it to police. A police officer who was dispatched to Iris Circle noted the license plate number of the truck and left about forty minutes later after seeing no unusual activity.

Nixon's friends contacted the police when they were unable to locate her on December 28. When the police arrived at Nixon's house, Nixon was gone and there was evidence of forced entry and blood throughout the house. The police checked the license plate number of the truck that had been parked on Iris Circle the previous night. They contacted the registered owner, who told them that his grandson, appellant, had possession of the truck. Appellant was not home when the police first attempted to contact him at his residence, but he called Detective Terry Davis about thirty minutes later. Davis told appellant that he wanted to talk to him, and appellant gave him the address of the residential treatment home where he was working as an after-hours house sitter.

Davis and Detective Jim Nelson went to appellant's place of employment that evening and asked him why his truck had been on the victim's street the night before. He first stated that he parked the truck on Iris Circle while he went riding around with a friend. Davis responded that he did not believe him, and then appellant changed his story. He stated that he and a man named Casey Porter broke into a house on that street, that Porter beat the female homeowner who arrived home in the middle of the burglary, and that they placed her in the trunk of her black BMW, drove her to a remote location in southern Gregg County near the airport, and left her there alive. He then signed a consent form authorizing a search of his truck and agreed to show the detectives where he and Porter left the victim. They got into Davis' car, where Davis read appellant his Miranda warnings.² Appellant then directed the detectives to an area off Highway 349 near the airport. Nixon was not there, but they found blood on the grass and a black trash bag and a piece of a tire jack on the ground.

Davis took appellant to the Longview Police Department, where he again read appellant his Miranda warnings and took his first written statement shortly after midnight. Appellant stated that Porter beat a woman when they were burglarizing her home and that they left her at a secluded area "near Jerry Lucy Road and Farm-to-Market 349." Davis obtained a warrant to arrest appellant for burglary of a habitation at around 3:00 or 4:00 a.m. Police also arrested and questioned Porter but released him when they verified his alibi.

At 6:30 a.m. on December 29, Davis read appellant his warnings and took his second written statement, in which he said that Brian Mason Woods beat a woman while they were burglarizing her home, and that "she was alive when [they] left her off Highway 349."³ The police then contacted Woods and excluded him as a suspect after confirming his alibi. Woods testified that appellant came to his house on the morning of December 28, told him that he had robbed a woman, and gave him some jewelry that he took during the robbery. Appellant also used credit cards that he took during the robbery to withdraw cash and fill Woods' car with gas.

Appellant was charged with burglary of a habitation and was taken before a magistrate for his statutory warnings at 10:30 a.m., at which time he requested the appointment of counsel. He was then taken to the Gregg County District Attorney's Office, where he was questioned by Detective Monty Gage and Mike Augustine, an investigator with the District Attorney's Office.⁴ He left the office with Gage and Augustine and directed them to Nixon's body, which was located in an abandoned vehicle within a mile of where appellant first led the police. Nixon had been beaten over the head and stabbed in the chest. The medical examiner testified that "[t]he cause of death was homicidal violence, including sharp force injuries, blunt force injuries, and probable strangulation."

Appellant was taken back to the Longview Police Department, where Davis again read him his rights and took his third written statement at 1:00 p.m. In this statement, he admitted that he alone burglarized the victim's home, hit her in the head with a tire tool, attempted to clean her up in the bathroom, and placed her in the trunk of her black BMW. He drove her to a secluded area and placed her in an abandoned car, believing that she was still alive when he left. He then returned to the victim's house, attempted to clean up the scene, and left on foot. He later disposed of the tire tool in a dumpster at a CiCi's Pizza restaurant, used the victim's credit cards for gas and money, and gave Woods some jewelry. Police found the tire tool in a dumpster located across the parking lot from CiCi's Pizza. Police also searched appellant's truck and found black jeans, tennis shoes, and batting gloves stained with Nixon's blood, as well as keys to Nixon's car and her garage door opener.

INDICTMENT

In point of error nineteen, appellant challenges the indictment, which alleged in pertinent part that appellant "intentionally cause[d] the death of an individual, namely, Lola Nixon, by cutting or stabbing her with a knife, or by striking her with a tire tool . . ." Appellant argues that the indictment was defective because it alleged the manner and means in the disjunctive. This claim is forfeited on appeal because appellant failed to object to the indictment on this basis prior to trial. Art. 1.14(b). Point of error nineteen is overruled.

VOIR DIRE

In point of error seventeen, appellant argues that the trial court abused its discretion when it refused to allow him to question veniremembers on the law of parole. The trial court denied appellant's request to ask the following questions of each veniremember:

1. Would the minimum length of time a Defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues?

2. On which special issue would this be important?

3. How would this 40-year minimum sentence be important to you in answering the special issues?

4. Would you be more likely, or less likely, generally, to view a Defendant as a continuing threat to society if you knew he would not be paroled for a minimum of 40 years[?]

The trial court did not abuse its discretion by refusing to allow appellant to ask veniremembers these proposed questions. In Sells v. State, 121 S.W.3d 748, 756 (Tex.Crim.App.), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157 L.Ed.2d 378 (2003), we held that these questions are improper because they "implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions."⁵ Point of error seventeen is overruled.

ADMISSION OF WRITTEN AND ORAL STATEMENTS

Prior to trial, appellant filed a "Motion for Hearing on Voluntariness of Any Admission or Confession Whether Written or Oral" and a "Motion to Suppress Evidence" requesting the suppression of all written and oral statements he made to law enforcement officers at the time of or subsequent to his arrest. The State called Detectives Davis and Gage to testify at the pretrial hearing on these motions. At the conclusion of their testimony, appellant objected and the trial court ruled as follows:

[DEFENSE COUNSEL]: Your Honor, we'd argue that it be suppressed, that it does not comply with Article 38.22.

THE COURT: How?

[DEFENSE COUNSEL]: Well, I'm getting there, Your Honor. That pursuant to Article 38.23, that anything that doesn't comply with the previous article is not admissible. He's, one, shown no authority to make an arrest. He was arrested without a warrant. I don't see anywhere in the Code where just because somebody tells you they did something, that you can arrest them without a warrant. He indicates he was — he says detained, but he says he had him in the car, and he was not free to go, and he couldn't have gone if he had tried to go. He was not a felon with any evidence that he was about to escape. That would be pursuant to Article 14.03. He was not taken before a magistrate without unnecessary delay under Article 14.06.

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THE COURT: I'm going to find that the taking of the statements comply with all applicable requirements of the law. And I'm going to overrule the motion to suppress the statements. And they will be admitted in...