Opinion
NO. 01-18-00377-CR
06-04-2019
DETORIAN SWAIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1526685
MEMORANDUM OPINION
Following his conviction for aggravated robbery, appellant Detorian Swain appeals his conviction arguing that the evidence supporting his conviction is insufficient and that the trial court erroneously admitted extraneous-acts evidence. We affirm.
Background
Aeron Davis was about five hours into his nightshift as a subcontractor for Union Pacific Railroad, as he sat in his rail-enabled truck near a train crossing in South Houston. He was texting his sister happy birthday when the truck door opened. Davis was staring down the barrel of a revolver. The African-American man behind the gun wore a black hoodie and a pair of shorts with a mottled design, like camouflage. The gunman instructed Davis to get out and lie on the ground. Davis complied. As he lay on the ground, Davis noticed another armed man ransacking his truck. This other African-American man had a narrower face and thinner build than the broad-faced, stocky gunman who was searching Davis's pockets with the revolver pressed to his side.
After searching Davis's truck, the thin man removed the keys from the ignition, grabbed Davis's cell phone, and got out. After Davis felt the stocky man take his wallet, Davis rose to his feet as directed and could see that the thin man was wearing a beanie that had a large skull printed on it. The thin man then pressed the barrel of his gun into Davis's jaw and said, "We're going for a walk." As the two robbers marched him down an alley, Davis could feel the thin man's gun on the back of his head and the stocky man's revolver in his side. The two men forced Davis into the back of bluish Dodge hatchback that was parked behind a nearby church. As the stocky man drove to a Wells Fargo ATM, the thin man sat in the backseat, threatening Davis at gunpoint to make him disclose his PIN.
The ATM security camera captured images of the Dodge hatchback's arrival at 2:44 a.m. The stocky man told Davis he would die if they could not get the money out. Despite repeated attempts, the ATM would not read Davis's card. After several minutes of failed attempts with the ATM, the stocky man drove them to another location where they all got out of the car. The two men were holding their guns and told Davis to look away from the car. Believing he was about to die, Davis felt two heavy blows to the back of his head. Davis dropped to his knees and watched the two men return to the car and drive off.
Davis got up and saw the lights of a nearby McDonald's. He banged on the doors until staff called 9-1-1. When two officers arrived at 3:05 a.m., they found Davis standing outside of the McDonald's disoriented and bleeding from a wound on the back of his head. Davis explained what happened and described the two men: One was an African American sixteen to eighteen years old, roughly five foot five, and wore a black hoodie and multicolored shorts; the second was African American, approximately eighteen-to-nineteen years old, of roughly the same height, had no facial hair, and wore a black hoodie with blue jeans. The officers conveyed Davis's descriptions over a police broadcast before taking Davis back to the site of the robbery and then to the hospital for an evaluation.
About thirty minutes after the two officers found Davis at the McDonald's, another officer was on patrol in an area about ten miles from where Davis was robbed. He ran the license plate of a silver Dodge Caliber through his police computer and received a "hit" that indicated the car was stolen. When the officer activated his siren, the Dodge accelerated to seventy-five miles per hour. The driver of the Dodge ran several red lights and a light-rail crossing before coming to stop with two flat tires. Two persons jumped out of the car, climbed a fence, and ran into a pipe yard. The officer noticed the driver's black beanie and the passenger's red t-shirt and dark shorts before losing sight of them. The officer radioed for other officers to set up a perimeter. Within a few minutes, a K-9 unit arrived.
The police dog, Bullet, immediately picked up a scent and began tracking the suspects. Bullet ran down the bank of a ditch and jumped into the water. A man later identified as Lamar Castor quickly emerged from the water, still wearing the skull-embroidered, black beanie. Castor raised his hands and pleaded, "don't let the dog bite me." A backup officer arrested the suspect, and Bullet continued his search for the other suspect. Bullet found the second suspect, appellant Detorian Swain, hiding in a pipe. Swain, wearing a red t-shirt and camouflage-styled shorts, was arrested. The officer who initiated the chase and stop identified Swain and Castor as the men he saw flee from the silver Dodge. The officers took an inventory of the car and found Davis's wallet.
The following day, Davis identified Swain and Castor from a video lineup as the men who robbed him. He identified, with a "hundred percent" certainty, Swain as the stockier assailant and Castor as the thinner assailant. The police also reviewed the security footage from the Wells Fargo ATM and noticed the presence of a Dodge hatchback that appeared to match the Dodge hatchback Swain and Castor fled in. A grand jury indicted Swain for the offense of aggravated robbery.
During his jury trial, Swain argued as his defense strategy that Davis mistakenly identified him. Swain called as a defense witness his ex-girlfriend and mother of his son, Jasmin Simien, who testified that Swain was with her at her sister's apartment on the night of the offense until sometime between 2:30 and 3:00 in the morning when Castor picked up Swain. To rebut Swain's alibi, the State called University of Houston student Nicholas Rout.
Rout testified that on the night of Davis's robbery, he drove home in his silver Dodge Caliber around 2:00 in the morning after the university library closed. He explained that when he parked his car and began walking up the stairs to his apartment door, he heard someone mumbling in the parking lot. He turned around and saw a person about twenty feet away. The man continued to say something unintelligible as he approached Rout. When the man reached Rout, he asked for the time. Rout was reaching for his phone when the man pulled out a pistol and aimed it at his head. Another man then approached and gestured to Rout to hand over his belongings. When Rout did not immediately hand over his property, the man said "this does not have to be a murder." Rout then handed over his backpack with his laptop, phone, wallet, and car keys. The men instructed him to get on the ground before they left in Rout's silver Dodge Caliber.
Rout called police after flagging down a passing car. He told police that the first assailant was an African American wearing a white-t-shirt, jeans, Converse shoes, and a beanie. He described the second assailant as an African American with corn rows who was wearing a red "U of H" shirt, camouflage cargo shorts, and white shoes. During a subsequent live lineup, Rout confidently identified Castor as the man who pointed a gun at him; Rout was not able to identify the second assailant from a photographic lineup that included Swain's picture. The jury found Swain guilty of the aggravated robbery of Davis and assessed him a sentence of twenty-five years in prison.
Analysis
Swain appeals, arguing that the evidence supporting his aggravated-robbery conviction is insufficient and that the trial court erroneously permitted Rout to testify.
I. Sufficiency of the evidence
The essential elements of aggravated robbery are using or exhibiting a deadly weapon in the course of committing theft, while acting with intent to obtain or maintain control of property, and knowingly or intentionally threatening or placing another in fear of imminent bodily injury or death. TEX. PENAL CODE §§ 29.02(a), 29.03(a)(2); Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In addition to the essential elements of a crime, the State must prove that the defendant was in fact the perpetrator of the charged offense. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Swain's sufficiency argument is limited to identity.
The State has the burden to prove each of these elements beyond a reasonable doubt. Id. In reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). In conducting this review, we defer to the jury to weigh the evidence and judge the credibility of witness testimony. Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
Swain points to evidence that he contends raises the reasonable inference that Davis mistakenly identified him as one of the assailants who robbed him. Swain compares his five-foot-eleven stature and the fact that he was wearing a red t-shirt at the time of his arrest with Davis's description of his assailant as being five foot five and wearing a black hoodie; he cites Simien's testimony that he was with her during the time of the robbery; and he points to the fact that police found none of Davis's property on his person, nor the guns allegedly used in the robbery. This evidence, Swain contends, raises the "possibility" that Davis mistakenly identified him. But that was not all of the evidence presented, nor was that the only reasonable inference presented to the jury.
Other evidence raised a competing and reasonable inference that Swain was one of the men who robbed Davis. Davis identified Swain as one of the assailants in court and testified that he identified Swain in the photo-array with a "hundred percent" certainty. See Williams v. State, 196 S.W.3d 365, 369 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding that victim's in-court identification of defendant as man who robbed him was sufficient to establish defendant's identity as perpetrator of aggravated robbery); Petro v. State, 176 S.W.3d 407, 410 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding six-inch discrepancy between complainant's description of robber's height was minor when considered with her positive identification of appellant as robber and other evidence supporting verdict). The evidence also included the ATM surveillance footage that showed the driver of a Dodge hatchback using an ATM at the exact time Davis said his assailants drove him there in a Dodge hatchback. See Vernon v. State, 571 S.W.3d 814 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ("The testimony of a single eyewitness is sufficient to support a conviction."). The Dodge hatchback in the ATM surveillance footage matched Davis's description of the Dodge his assailants used, and after Swain and Castor were arrested, police found Davis's wallet in the Dodge hatchback Swain and Castor fled in. See id.; see also Cocke v. State, 201 S.W.3d 744, 747 n.4 (Tex. Crim. App. 2006) (stating that, although not conclusive, jury may draw inference of guilt from defendant's recent and unexplained possession of stolen property). And although Simien testified that she was sure Swain was with her at 2:30 in the morning because that is when her sister left for work, she testified on cross-examination that her sister left for work four and half hours earlier at 11:00 at night. See Jones, 458 S.W.3d at 630 (stating that a jury, as sole judge of credibility, is free to disbelieve and disregard a witness's testimony).
Based on the combined and cumulative force of all the evidence, the jury may have reasonably inferred either that Davis mistakenly identified Swain as one of the assailants or that he did not. If the evidence supports conflicting inferences, "we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination." Merritt, 368 S.W.3d at 525-26. Accordingly, we must presume that the jury inferred from the evidence that Davis was not mistaken when he identified Swain as one of the assailants. See id. We therefore overrule Swain's sufficiency issue.
II. Admission of Rout's testimony
Swain next argues that the trial court erred by admitting rebuttal testimony from Rout regarding an extraneous aggravated robbery because it was irrelevant under Texas Rule of Evidence 401, constituted an inadmissible extraneous offense under Rule 404(b), and was substantially more prejudicial than probative under Rule 403. A trial court's ruling to admit or exclude evidence of an extraneous offense is reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its ruling falls outsize the zone of reasonable disagreement. Id.
Relevance and admissibility under Rule 404(b)
For extraneous-offense evidence to be admissible to show identity, identity must be an issue in the case, the extraneous offense must be so similar to the charged offense as to "mark the offenses as the defendant's handiwork," and the identity of the defendant in the extraneous offense must be clearly proved. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002); Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974). In analyzing the similarity of the extraneous act with the charged offense, appellate courts consider the "common characteristics" of the two offenses, which "may be proximity in time and place, mode of commission of the crimes, the person's dress, or any other elements which mark both crimes as having been committed by the same person." Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008).
Identity was an issue, and Rout's testimony was relevant to identity. The entirety of Swain's defensive theory was that Davis mistakenly identified him as one of the assailants: he cross-examined Davis on the reliability of his identification; he cross-examined the responding officers on the discrepancies in Davis's description; and he presented Simien as an alibi witness to testify that she was with him on the morning of the assault until roughly 2:30 in the morning. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).
The two offenses are sufficiently similar as to mark the offenses as the Swain's handiwork. Rout was robbed approximately an hour before Davis was robbed. See Johnson, 68 S.W.3d at 651 (holding crimes "committed within a few hours of each other" were sufficiently close in time for admissibility of extraneous-offense evidence offered to show identity). Both offenses involved two men, one wore a beanie with a skull printed on it, and the other wore multicolored shorts; the victims were both lone men; both offenses involved Rout's silver Dodge hatchback; and both victims were held at gunpoint, told to get on the ground, and had their lives threatened. These two offenses were sufficiently similar. See id. (holding that defendant who committed separate crimes against lone women within hours of each other in car of his first victim were sufficiently similar to mark offenses as defendant's handiwork).
Although Rout did not identify Swain from a photographic array, the evidence established that Swain was one of the perpetrators of the aggravated robbery. As mentioned above, both offenses were separated by an hour. Both offenses took place about a mile apart and were committed by two assailants acting in concert. Davis described Swain as wearing multicolored pants, and Rout described his assailant as wearing multicolored shorts with a camouflage-like pattern. Davis and Rout described the accomplice as wearing a beanie with a skull printed on it. Rout testified that the multicolored-short wearing assailant was also wearing a red University of Houston t-shirt and white shoes. Surveillance video from Rout's apartment complex shows two men entering the property, one of whom is wearing a beanie with what appears to be an image of a skull; and the other is wearing a t-shirt appearing to bear the University of Houston logo, dark shorts, and white shoes. Rout identified the two men in the surveillance video as the men who robbed him and stole his silver Dodge hatchback. Wells Fargo surveillance footage shows the driver of a silver Dodge hatchback using the ATM at 2:44 in the morning—exactly when Davis said the two assailants forced him into a bluish Dodge hatchback and drove him to that Wells Fargo ATM. When police stopped Rout's stolen Dodge, Swain—who was wearing a red, University of Houston t-shirt and white shoes—fled from the car before being arrested. The evidence establishes that Swain, along with Castor, perpetrated Rout's robbery.
Last, Rout's testimony was relevant. Simien testified that Swain was with her until 2:30 in the morning. Rout was robbed around 1:40 in the morning. His testimony therefore acted to rebut Simien's account and undermine Swain's mistaken-identity defensive theory.
Unfair prejudice
Swain also argues that Rout's testimony should have been excluded under Rule of Evidence 403 because its probative value was substantially outweighed by its prejudicial effect. After a trial court rules on whether evidence is admissible under Rule 404(b), the trial court "has ruled on the full extent of the opponent's Rule 404(b) objection. The opponent must then make a further objection based on Rule 403, in order for the trial judge to weigh the probative and prejudicial value of the evidence." Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997); see also TEX. R. APP. P. 33.1(a). Swain's objection to Rout's testimony was limited to its relevance to identity. He therefore did not preserve a complaint that the trial court should have excluded the evidence under Rule 403. Accordingly, we do not reach Swain's Rule 403 argument.
* * *
The trial court did not abuse its discretion by admitting Rout's testimony under Rule 404(b) because identity was an issue, the two robberies were sufficiently similar as to mark Swain's handiwork, and the evidence established that Rout was robbed by Swain and Castor. And because Swain did not raise his Rule 403 argument, he failed to preserve the argument for appellate review. We therefore overrule Swain's issue regarding Rout's testimony.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice Panel consists of Chief Justice Radack and Justices Higley and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).