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Date: 06-20-2019

Case Style:

Detorian Swain v. The State of Texas

Case Number: 01-18-00377-CR

Judge: Richard Hightower

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Heather Hudson

Defendant's Attorney: Thomas J. Lewis

Description:

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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
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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.
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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
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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
6

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.

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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.
8

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
9

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
10

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,
11

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
12

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
13

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.


14

* * *
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.

Outcome: We affirm the judgment of the trial court.

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