Friday, November 2, 2012
Media Advisory: Mario R. Swain scheduled for execution

AUSTIN – Pursuant to an order entered by the 124th District Court in Gregg County, Mario Rashad Swain is scheduled for execution after 6 p.m. on November 8, 2012. In 2003, a Gregg County jury found Swain guilty of murdering Lola Nixon while burglarizing her East Texas home.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described Nixon’s murder as follows:

On December 28, 2002, Lola Nixon’s friends contacted the police after Nixon did not show up for dinner the night before and they could not locate her the next day. Police went to Nixon’s house on Iris Circle in Longview, Texas, and discovered evidence of forced entry and blood throughout the house. The police focused their investigation on a truck that one of Nixon’s neighbors reported was parked in front of a vacant house on Nixon’s block the night before. The truck was registered to Mario Swain’s grandfather, and when the police spoke with him, he told them that Swain had been using the truck.

Detective Terry Davis spoke with Swain on the phone, and Swain told him that he could come speak with him where he worked, at a residential treatment home. Detective Davis and Detective Jim Nelson drove to the address that Swain had given and Swain’s grandfather’s truck was parked in the driveway. Swain came out and met them in front of the open garage door. They asked him why his truck was seen parked on Iris Circle the night before, and Swain told them that he had gone riding with a friend and ended up parking his truck there.

One of the detectives told Swain that this was his opportunity to come clean, which prompted Swain to give the following account: The night before, he and a man named Casey Porter broke into a house on Iris Circle; when the owner came home, Porter attacked her; they put the woman, who was alive but unconscious, in the trunk of her car and drove to a remote location near the airport where they left her. Swain agreed to take the detectives to the place where he said that he and Porter had left the woman. Swain rode in the back of the detectives’ car and directed them to a field where they discovered blood, a black trash bag, and a piece of a tire jack, but they did not find Nixon. Detective Davis testified that he did not recall handcuffing Swain at any point while they were at Swain’s workplace or while Swain rode in their car, and that he administered Miranda warnings to Swain when Swain got into the detectives’ car. Detective Nelson testified that he handcuffed Swain at some point “when we were in the garage talking” and that “[a]t that point, we told him we were going to detain him.”

The detectives then brought Swain to the Longview Police Department. There, he was read his Miranda rights again and he gave several written statements. In his first statement – which included an acknowledgment that Swain had the “right to remain silent and not make any statement at all and . . . the right to [have] a lawyer present” – Swain admitted that he participated in burglarizing Nixon’s house, but accused Porter alone of assaulting her. The police arrested Porter, but soon discovered that he had an alibi.

The detectives confronted Swain with this information and after they informed him of his rights again, Swain provided a second written statement. This statement also included an acknowledgment “that I have the right to remain silent” and “to have a lawyer present.” Swain again admitted to participating in the burglary; however, this time, Swain claimed that a man named Brian Mason Woods was his accomplice and that Woods had assaulted the victim. As with Porter, the police questioned Woods and discovered that he had an alibi.

Several hours later, Swain was charged with burglary of a habitation and was brought before a magistrate who read him his rights in accordance with Texas law. Swain was then brought to the district attorney’s office where a different detective and an investigator with the District Attorney’s Office questioned him. He agreed to lead them to Nixon’s body, and directed them to a vehicle containing her corpse that was close to where he had first led Detectives Davis and Nelson. Nixon had been beaten over the head and stabbed in the chest. The medical examiner later testified that the cause of death was “homicidal violence, including sharp force injuries, blunt force injuries, and probable strangulation.”

After disclosing the location of Nixon’s body, Swain was brought back to the Longview Police Department. There, Detective Davis read him his rights again and Swain gave a third written statement. As with the previous two statements, this statement included an acknowledgment of “the right to remain silent” and “the right to have a lawyer present.” This time, Swain admitted that he had committed the burglary on his own. He also stated that the burglary ended in a struggle with Nixon when she returned home; that he bludgeoned her with a tire tool and placed her semi-conscious body into the trunk of her car; and that he drove her to a field and left here there while she was breathing but barely conscious. Later, police found the tire tool that Swain had used to bludgeon Nixon; they also searched Swain’s truck and found clothing with Nixon’s blood on it and Nixon’s car keys and garage door opener.

PROCEDURAL HISTORY

On March 13, 2003, Swain was indicted in Gregg County, Texas, for the Dec. 27, 2002, capital murder of Lola Nixon while in the course of burglarizing her home.

On November 19, 2003, a Gregg County jury found Swain guilty of capital murder. On November 20, 2003, after the jury recommended capital punishment, the trial judge sentenced Swain to death by lethal injection.

The Texas Court of Criminal Appeals affirmed Swain’s capital murder conviction and death sentence on November 5, 2005. That court denied rehearing on January 26, 2006.

On October 2, 2006 the Supreme Court of the United States rejected Swain’s direct appeal when it denied his petition for certiorari.

After exhausting his direct appeals, Swain sought to appeal his conviction and sentence by filing an application for a state writ of habeas corpus with the Texas Court of Criminal Appeals. On September 20, 2006, the high court denied Swain’s application for state habeas relief.

On August 31, 2007, Swain attempted to appeal his conviction and sentence in the federal district court for the Eastern District of Texas. The federal district court denied Swain’s petition for a federal writ of habeas corpus on March 31, 2010.

On April 18, 2012, the United States Court of Appeals for the Fifth Circuit rejected Swain’s appeal when it affirmed the federal district court’s order denying Swain a federal writ of habeas corpus.

On October 15, 2012, the United States Supreme Court rejected Swain’s appeal a second time when it denied his petition for certiorari.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented with information about the defendant’s prior criminal conduct during the second phase of the trial, which is when they determine the defendant’s punishment.

At the guilt-innocence phase of trial, the jury heard evidence that Swain stalked and brutally murdered Nixon in her own home, dumped her body in an abandoned car, then attempted to cast blame on two other people.

During the penalty phase of trial, jurors learned that as a youth, Swain had been involved in an incident of sexual cruelty involving a cow belonging to his uncle; the animal required veterinary care as a result of its injuries. The jury also learned of Swain’s fascination with forensic television programs; his extensive history of predatory and abusive behavior toward women; his experimentation with new methods of subduing them; and his escalating pattern of violence towards his victims.

Texas Execution Information Center by David Carson.

Mario Rashad Swain, 33, was executed by lethal injection on 8 November 2012 in Huntsville, Texas for murdering a woman while burglarizing her home.

On 27 December 2002 in Longview, east of Dallas, Lola Nixon, 44, made plans to have dinner with Deborah Hancock and her husband. She never arrived at the restaurant. After dinner, Hancock stopped by Nixon's house on Iris Circle with a carry-out package. She knocked on the door and received no answer, so she left the food at the front door. That same evening, one of Nixon's neighbors reported a truck parked outside a vacant house on the block. A police officer was dispatched. He noted the license number of the truck and stayed for about a half hour. Seeing no unusual activity, he left. The next day, Hancock called the police after being unable to locate Nixon. Officers went to her home and discovered evidence of forced entry. They found blood throughout the house, but did not find her.

Investigators contacted the owner of the truck that was seen on Iris Circle the previous night. He told them that his grandson, Mario Swain, had been using it. Detective Terry Davis spoke with Swain, then 23, on the phone, and Swain agreed to meet with him at his workplace, a residential treatment home. When Davis and Detective Jim Nelson arrived for the meeting, the truck was parked in the driveway. The detectives asked Swain why his truck was seen on Iris Circle the night before. He told them he went riding with a friend and ended up parking his truck there.

Upon further questioning, Swain admitted participating in a burglary. He said he and Casey Porter broke into a house on Iris Circle. When the owner came home, Porter attacked her. They then put the woman, who was unconscious but alive, in the trunk of her black BMW and drove her to a remote location near the airport and left her there. He agreed to take the detectives to the place where he said he and Porter left her. He directed them to a field where they discovered bloody grass, a black trash bag, and a piece of a tire jack, but no victim. The detectives took Swain in handcuffs to the Longview Police Department and questioned him some more. He gave a written statement, wherein he again admitted burglarizing the home, but repeated his claim that Porter alone assaulted her. The police arrested Porter, but discovered that he had an alibi.

Police told Swain about Porter's alibi and then obtained another written statement from him. This time, he gave essentially the same story except said that the assailant was Brian Woods. Police questioned Woods and found that he, too, had an alibi. Swain was then charged with burglary. He led two other detectives to a vehicle containing Nixon's body, near the location where he had taken Detectives Davis and Nelson. Nixon had been beaten on the head and stabbed in the chest. The medical examiner later testified that the cause of death was sharp force injuries, blunt force injuries, and probable strangulation.

Swain was taken back to the police station, where he gave a third written statement. This time, he confessed to committing the burglary on his own. He stated that when Nixon returned home, they struggled and he ended up hitting her with a tire tool. He placed her in the trunk of her car, drove her to a field, and left here there. He stated that when he left, she was breathing, but barely conscious. He then returned to her home and stole money, jewelry, and some credit cards.

Police subsequently found the tire tool in a trash container where Swain said he had thrown it. They also searched his truck and found clothing with Nixon's blood on it, Nixon's car keys, and garage door opener. He had given some of her jewelry to Brian Woods, one of the friends he tried to blame for the killing.

Kristie Anderson, who lived with Swain from February 2002 until the time of his arrest, testified that on 27 December, the day of Nixon's murder, she found a piece of paper in their apartment with the name "Lola Nixon" and the phrase "Sitel girl" in parentheses. Both Nixon and Swain had previously worked at Sitel, a business in Longview. That paper also had an address and a license plate number written on it. Anderson testified that Swain kept other pieces of paper in the apartment with names, addresses, phone numbers, license plate numbers, and descriptions of vehicles. She also testified that Swain kept a bottle in their apartment containing a substance "you could knock somebody out with."

Swain had no prior criminal convictions, but numerous witnesses testified to planned attacks and actual attacks against women. In two incidents in 1999, Swain removed the dome lights of women's cars, hid in the back seat, and then attacked them with a stun gun. A woman who dated Swain testified that he watched women, followed them home, and determined the times they would leave for and return home from work. She said Swain kept a spiral notebook with descriptions of women, automobiles, and license plate numbers, and that he kept a brown glass bottle in his car containing a substance he said would "put people to sleep."

Nicole Anderson testified that in December 2002, she woke up in her apartment around 3:00 or 4:00 a.m. to find Swain standing in her room. As she held her newborn baby, Swain jumped on her, choked her, and demanded her money and credit cards. He threatened to kill her and held a knife to her. He had a brown glass bottle containing a substance that he said would put her to sleep and make her forget everything that happened. He poured the substance onto a cloth and held it to her face, causing her to pass out. She woke up at about 10:00 a.m. and tried to leave the apartment with her baby, but Swain was standing outside. He spoke with her again, and then permitted her to leave.

As a youth, Swain was involved in a incident of sexual cruelty to his uncle's cow. The animal required veterinary treatment for its injuries. Prosecutors called Swain a "serial killer in training."

A jury convicted Swain of capital murder in November 2003 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2005. All of his subsequent appeals in state and federal court were denied. Swain declined requests for interviews while on death row. None of either Swain's or Nixon's family attended Swain's execution. When the warden asked him if he wanted to make a last statement, he shook his head. The lethal injection was then started. He was pronounced dead at 6:39 p.m.

Huntsville Item

Houston Chronicle

"Man put to death in Texas for woman's 2002 slaying," by Michael Graczyk. (Ap November 8, 2012 9:53pm)

HUNTSVILLE, Texas (AP) — A man described by a prosecutor as "a serial killer in training" was executed Thursday in Texas for a woman's slaying during a break-in at her home a decade ago.

Mario Swain, 33, received a lethal injection for killing Lola Nixon at her home in East Texas' Longview two days after Christmas in 2002. When asked by a warden if he had a final statement before his punishment, the condemned prisoner shook his head, closed his eyes and took several barely audible breaths. Within a moment, all movement stopped. Swain was pronounced dead 30 minutes later, at 6:39 p.m. CST. No family members or friends of Nixon were at the execution. Swain also had no relatives among the witnesses.

Swain's attorney, James Volberding, said no late attempts were made in the courts to block the execution, the 13th this year in the nation's busiest capital punishment state. The U.S. Supreme Court last month refused to review the case, and the Texas Court of Criminal Appeals last week rejected an appeal that contended a prison expert's testimony during the sentencing phase of Swain's 2003 capital murder trial was false and misleading. Swain declined media interview requests as his execution date neared.

Evidence showed Swain threw the 46-year-old Nixon's body into the trunk of her BMW after killing her, drove to a remote area outside of the city about 120 miles east of Dallas and dumped it in the back seat of an abandoned car. Nixon missed a dinner engagement with friends on the night she was slain. Her friends called police when they couldn't reach her the next day, and officers who went to her home found the back door jimmied. Once inside, they saw blood throughout the house. A neighbor reported seeing an unfamiliar truck parked on the street the night before, and police tracked the vehicle to Swain. He initially blamed friends for the burglary, then led police to Nixon's body. Authorities determined she'd been beaten with a tire iron, stabbed and strangled.

The tire iron was recovered from a trash container where Swain said he had thrown it. Evidence showed he used Nixon's credit cards and gave a piece of her stolen jewelry to a friend. Nixon's blood was found on Swain's clothing in the truck, along with her car keys and garage door opener.

According to evidence and testimony at trial, Swain gathered information about women he wanted to rob and then would attack them, forcing them to inhale the anesthetic halothane and hitting them over the head with a wrench or shooting them with a stun gun. Lance Larison, a prosecutor at Swain's trial, described Swain as "a serial killer in training." "A girlfriend told us he kept a list in notebooks of names and license plates of girls he would follow," Larison said. "I think he was working up to something." It's not clear if Swain knew Nixon. She managed a Longview telephone call center where Swain once worked.

One of Swain's trial lawyers, Rick Hagan, said the evidence and vivid testimony from those who say Swain robbed and attacked them hindered the defense's efforts to convince jurors to spare Swain from the death penalty. Larson said blood evidence in the case was "consistent with a struggle" inside Nixon's home, where she lived alone.

Deborah Hancock told the Longview News-Journal she and her husband were to have dinner with Nixon that Friday night after Christmas 2002. They stopped by Nixon's house with a carry-out package when she didn't arrive to eat with them. When their knocks went unanswered, they left the food at her front door. "I can't believe it's been 10 years," Hancock said. "She was very outgoing and very direct, fun, lively. She was just one of a kind."

Swain's execution is to be followed by two more next week in Texas.

SeeMyDeath: Online Tragic Death Records

A man described by a prosecutor as "a serial killer in training" was executed Thursday in Texas for a woman's slaying during a break-in at her home a decade ago. Mario Swain, 33, received a lethal injection for killing Lola Nixon at her home in East Texas' Longview two days after Christmas in 2002. When asked by a warden if he had a final statement before his punishment, the condemned prisoner shook his head, closed his eyes and took several barely audible breaths. Within a moment, all movement stopped. Swain was pronounced dead 30 minutes later, at 6:39 p.m. CST. No family members or friends of Nixon were at the execution. Swain also had no relatives among the witnesses.

Swain's attorney, James Volberding, said no late attempts were made in the courts to block the execution, the 13th this year in the nation's busiest capital punishment state. The U.S. Supreme Court last month refused to review the case, and the Texas Court of Criminal Appeals last week rejected an appeal that contended a prison expert's testimony during the sentencing phase of Swain's 2003 capital murder trial was false and misleading. Swain declined media interview requests as his execution date neared.

Evidence showed Swain threw the 46-year-old Nixon's body into the trunk of her BMW after killing her, drove to a remote area outside of the city about 120 miles east of Dallas and dumped it in the back seat of an abandoned car. Nixon missed a dinner engagement with friends on the night she was slain. Her friends called police when they couldn't reach her the next day, and officers who went to her home found the back door jimmied. Once inside, they saw blood throughout the house. A neighbor reported seeing an unfamiliar truck parked on the street the night before, and police tracked the vehicle to Swain. He initially blamed friends for the burglary, then led police to Nixon's body. Authorities determined she'd been beaten with a tire iron, stabbed and strangled.

The tire iron was recovered from a trash container where Swain said he had thrown it. Evidence showed he used Nixon's credit cards and gave a piece of her stolen jewelry to a friend. Nixon's blood was found on Swain's clothing in the truck, along with her car keys and garage door opener. According to evidence and testimony at trial, Swain gathered information about women he wanted to rob and then would attack them, forcing them to inhale the anesthetic halothane and hitting them over the head with a wrench or shooting them with a stun gun. Lance Larison, a prosecutor at Swain's trial, described Swain as "a serial killer in training." "A girlfriend told us he kept a list in notebooks of names and license plates of girls he would follow," Larison said. "I think he was working up to something." It's not clear if Swain knew Nixon. She managed a Longview telephone call center where Swain once worked.

One of Swain's trial lawyers, Rick Hagan, said the evidence and vivid testimony from those who say Swain robbed and attacked them hindered the defense's efforts to convince jurors to spare Swain from the death penalty. Larson said blood evidence in the case was "consistent with a struggle" inside Nixon's home, where she lived alone.

Deborah Hancock told the Longview News-Journal she and her husband were to have dinner with Nixon that Friday night after Christmas 2002. They stopped by Nixon's house with a carry-out package when she didn't arrive to eat with them. When their knocks went unanswered, they left the food at her front door. "I can't believe it's been 10 years," Hancock said. "She was very outgoing and very direct, fun, lively. She was just one of a kind." Story Two:

Only two days after a death penalty repeal measure failed in California, two states were preparing to move ahead with executions tonight, with the lethal injection of Mario Swain in Texas and Hubert Michael in Pennsylvania. However, Michael received a stay Thursday afternoon, and will not be executed this evening. According to Swain’s attorney, no late attempts were made to block his execution.

Swain was sentenced to death for the beating, stabbing and strangling of Lola Nixon a decade ago. Nixon’s friends became worried when she had failed to show up for dinner the night before, so they went to her house to check on her. Upon arrival, they found blood and evidence of a home invasion. Police interviewed neighbors who said they had seen a young man there in a truck that was identified as belonging to Swain’s grandfather. He said he had let Swain borrow it. Swain agreed to talk to police and implicated two of his friends, who he said had attacked Nixon while they were robbing the home. However, those two men had credible alibis.

Swain eventually confessed, saying Nixon had come home while he was burglarizing the house and that he beat her to death with a tire iron. He led officers to her body, which was abandoned in the trunk of her car in a field. “Unless you knew where you were going, you wouldn’t get there,” Lance Larison, a prosecutor at Swain’s 2004 trial, said in an Associated Press report.

Evidence tied Swain to the crime: Nixon’s blood was found on Swain’s clothing in the truck and Swain had used Nixon’s credit cards. Police also found the tire iron in the trash bin where Swain said he had thrown it. At trial, prosecutors called Swain a “serial killer in training,” detailing how he enjoyed watching crime and detective shows, kept a list of license plates of local cars and began collecting details on the women he wanted to rob, before attacking them. “Not only did he stalk, he started making physical assaults,” Larison told the Associated Press.

Swain was sentenced to death after a three-day trial. Since then, his attorneys filed appeals arguing that his right to due process was violated at trial, that his trial attorneys were ineffective and that there were problems with the jury selection. However, all of those appeals were denied by the Texas Court of Criminal Appeals and the U.S. Supreme Court refused to review Swain’s case three weeks ago. Swain declined to speak to the media in the weeks leading up to his execution date.

Swain was the 489th person executed in Texas since the death penalty was reinstated, and the 13th execution in the state in 2012. There are two more Texas executions scheduled for next week. According to the Washington Post, “Swain was asked by a warden if he had a final statement before his punishment. The condemned prisoner shook his head, closed his eyes and took several barely audible breaths.” Swain was pronounced dead 30 minutes later, at 6:39 p.m. CST.

Reuters News

(Reuters) - A man convicted of killing a woman during a 2002 burglary of her home was executed in Texas on Thursday by lethal injection, the state Department of Criminal Justice said. Mario Swain, 33, was convicted of killing Lola Nixon, 44, who was beaten, stabbed and likely strangled in a burglary at her home in Longview, Texas, authorities said. Swain was pronounced dead at 6:39 p.m. local time in Huntsville, Texas, according to the state criminal justice department. He was the 37th person executed in the United States this year and the 13th in Texas.

ProDeathPenalty.Com

Lola Nixon, the victim, lived in a house on Iris Circle in Longview, Texas. Lola 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. Lola Nixon's friends contacted the police when they were unable to locate her on December 28.

When the police arrived at Lola's house, Lola 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, Swain, had possession of the truck. Swain 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 Swain that he wanted to talk to him, and Swain 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 Swain'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 Swain 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 Swain his Miranda warnings.

Swain then directed the detectives to an area off Highway 349 near the airport. Lola 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 Swain to the Longview Police Department, where he again read Swain his Miranda warnings and took his first written statement shortly after midnight. Swain 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 Swain 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 Swain 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." The police then contacted Woods and excluded him as a suspect after confirming his alibi. Woods testified that Swain 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. Swain also used credit cards that he took during the robbery to withdraw cash and fill Woods' car with gas. Swain 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. He left the office with Gage and Augustine and directed them to Lola's body, which was located in an abandoned vehicle within a mile of where Swain first led the police. Lola 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."

Swain 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 Swain's truck and found black jeans, tennis shoes, and batting gloves stained with Lola's blood, as well as keys to Lola's car and her garage door opener.

Texas Coalition to Abolish the Death Penalty

German Coalition to Abolish the Death Penalty - Pen Friends

Mario Swain
ATTENTION: Mario Swain has an execution date for November 8th!

Hello Friends,

I hope to reach all of you in good health and great spirits. Please allow me to let you know a little about me. My name is Mario and I’m an innocent man incarcerated on Texas’ death row. I haave been on the row for nearly five years now and have been locked away in all for six.

In a small cell 22 to 24 hours a day, during this darkness the best one can hope for is friends to write to. Someone to bond with and share the pain, struggle and suffering that we face here.

Know, I’m an honest, caring person that honors friendship in the highest regard. I take it seriously and don’t play games. During my time here I love to read, listen to music, being outdoors and of course, to write people. I love to receive and write letters and meet new people. I am looking for friendship from anyone who is honest, caring and who doesn’t mind exchanging words and having a good time. Most importantly anyone willing to have a longterm relationship.

With that being said, thank you for taking the time to view this. Hopefully, you and I will be able to have a long lasting friendship in the near future.

With peace & love, Mario

Mario Swain #999475
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351 USA

Swain v. State, 181 S.W.3d 359 (Tex.Crim.App. 2005). (Direct Appeal)

Background: Defendant was convicted in the 124th District Court, Gregg County, Alvin Khoury, J., and sentenced to death.

Holdings: On automatic appeal, the Court of Criminal Appeals, en banc, Meyers, J., held that: (1) trial court did not abuse its discretion when it refused to allow defendant to ask voir dire questions relating to the law of parole; (2) defendant's warrantless arrest at residential treatment home where he worked was not illegal; and (3) evidence in penalty phase was sufficient to demonstrate defendant's future dangerousness. Affirmed.

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).FN1 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.FN2 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. FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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 FN3 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. FN3. Appellant referred to Woods as “Mason” in his statement.

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.FN4 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.”

FN4. At the pretrial hearing on the motion to suppress, Gage testified that appellant told him and Augustine that he acted alone in the commission of the crime and agreed to direct them to the location where he left the victim. At trial, Gage and Augustine testified only that appellant directed them to the location where he left the victim. Neither of them testified at trial regarding appellant's oral admission that he acted alone in the commission of the offense.

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.” FN5 Point of error seventeen is overruled. FN5. Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001); Barajas v. State, 93 S.W.3d 36, 39 (Tex.Crim.App.2002).

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. * * * 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 evidence on proper predicate at the trial on the merits ...

In his first four points of error, appellant contends that his oral statement to Gage and Augustine and his third written statement were obtained in violation of his right to counsel. In points one and two, he argues that the police violated his right to counsel under the Fifth and Sixth Amendments because they continued to question him after he appeared before the magistrate and requested the appointment of counsel. In points three and four, he argues that the taking of these statements after he requested the appointment of counsel “violated [his] Texas constitutional guarantee that he shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, and thus deprived him of life, liberty, property, privileges or immunities, without due course of law.” He also asserts in points three and four that these statements were inadmissible under Article 38.23 because they were obtained in violation of his right to counsel.

In his written “Motion to Suppress Evidence,” appellant generally argued “[t]hat any statements made by Defendant were obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex. Const. art. I, §§ 10 and 19.” He also generally argued in his motion to suppress that his statements were inadmissible under Article 38.23. These arguments were global in nature and contained little more than citations to constitutional and statutory provisions. At the hearing on the motion to suppress, appellant failed to complain about being questioned after asserting his right to counsel, and instead simply objected that his statements were inadmissible because the police illegally arrested him and failed to comply with the requirements of Articles 38.22, 14.03, and 14.06. Appellant's global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal.FN6 TEX. R. APP. P. 33.1. Points of error one, two, three, and four are overruled. FN6. At trial, appellant failed to object to the admission of his oral statement to Gage and Augustine and simply renewed his pretrial objection with regard to his third written statement.

In points of error seven, eight, eleven, and twelve, appellant argues that his oral statements to Davis and Nelson and his first and second written statements were inadmissible fruits of an illegal arrest. He asserts that the admission of these statements violated the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, §§ 9, 10, and 19 of the Texas Constitution, and Article 38.23. We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). We review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record.FN7 Id. We will sustain the trial judge's decision if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000). FN7. The trial court's “Findings of Fact and Conclusions of Law on Defendant's Motions” explicitly refer only to the voluntariness of appellant's written statements and consent to search the truck.

Appellant complains that he was illegally arrested without a warrant or probable cause. In his brief, he points to the testimony of Detective Nelson and argues that he was “under arrest” at the time he was handcuffed. Nelson testified at trial that appellant “appeared to be quite nervous” when he and Detective Davis questioned him at the residential treatment home where he worked. He testified that at some point while they “were in the garage talking,” he handcuffed appellant and stated that “[they] were going to detain him,” because appellant was “moving around quite a bit” and he did not know “if he was just nervous or he was going to attempt to flee.” Detective Davis, on the other hand, consistently testified that appellant was not placed in handcuffs, and that appellant became “detained” at the point when he got into Davis' police car and received his Miranda warnings.

There is no bright-line test providing that mere handcuffing is the equivalent of an arrest. Balentine, 71 S.W.3d at 771. The relevant inquiry is whether a reasonable person would have believed that he was not free to leave under the circumstances surrounding the incident. Anderson v. State, 932 S.W.2d 502, 505 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997). In the instant case, appellant called Davis and gave him his workplace address. Davis arrived in his unmarked car and parked on the street in front of the residential treatment home. Davis testified that his “main focus and train of thought at that point in time was [appellant's] truck and why it was on Iris Circle.” Davis testified that appellant was not in custody at the time he admitted his involvement in the burglary, but he was “not free to leave” at the point when he got into Davis' car. FN8. The officer's testimony is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place. Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.), cert. denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997).

Even if we were to assume that appellant was arrested at the residential treatment home where he worked, the evidence viewed in the light most favorable to the trial court's ruling supports a finding that the arrest did not take place until after he admitted his involvement in the burglary. Thus, appellant's admission that he was involved in the burglary and any prior statements he made to Davis and Nelson were not fruits of the arrest.

Warrantless arrests in Texas are authorized only in limited circumstances and are governed primarily by Chapter 14 of the Code of Criminal Procedure. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). Article 14.03(a)(1) authorizes the warrantless arrest of a person found in a suspicious place and under circumstances which reasonably show that an offense has been or is about to be committed. Any “place” may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police. Gallups v. State, 151 S.W.3d 196, 202 (Tex.Crim.App.2004), citing Dyar v. State, 125 S.W.3d 460, 468–71 (Tex.Crim.App.2003).

In this case, the circumstances reasonably showed that an offense had been committed. Nixon had been reported missing and there was evidence of forced entry and a bloody struggle in her home. Appellant was the driver of a truck parked on Nixon's street the night she disappeared. Appellant admitted that he and Porter broke into a house and that Porter beat the female homeowner. Exigent circumstances arose when appellant stated that he and Porter left the beaten victim alive at a remote location. Davis testified that his “biggest concern at that point in time was to go find Lola Nixon.” Davis further testified: “Obviously, based on that [statement], at that point in time, me not knowing whether or not I had a dead woman or not, I couldn't tell that from the crime scene, it was imperative that we find where this woman was possibly for her life.” Nelson testified that he thought appellant might attempt to flee. Given appellant's nervous behavior and his admission that he had been involved in a crime, it was reasonable to believe that appellant would not remain at the residential treatment home if the officers left to obtain a warrant.

If appellant was arrested at the residential treatment home, then his warrantless arrest was authorized under Article 14.03(a)(1). Any oral or written statements appellant made thereafter were not fruits of an illegal arrest.FN9 Points of error seven, eight, eleven, and twelve are overruled. FN9. Davis took appellant's second written statement at 6:30 a.m., after he had obtained a warrant to arrest appellant for burglary of a habitation.

ADMISSION OF EXHIBITS

In points of error five and six, appellant complains that the trial court erroneously admitted State's Exhibits 14, 34 through 48, 79, 90 through 123, and “the numerous photographs taken at the crime scene.” He asserts that these exhibits should have been suppressed under the fruit of the poisonous tree doctrine and Article 38.23 because they were recovered based on statements obtained in violation of his right to counsel.

In his pretrial motion to suppress evidence, appellant generally requested suppression of “[a]ll tangible evidence obtained by the State of Texas, or its agents, as a result of Defendant's arrest.” Appellant does not complain on appeal that these exhibits were fruits of an illegal arrest. Instead, he argues that the exhibits were fruits of statements taken in violation of his right to counsel. Appellant's trial objection does not comport with the issue raised on appeal; thus, he has failed to preserve his complaint for our review.FN10 TEX. R. APP. P. 33.1. Points of error five and six are overruled.

FN10. When the State moved to introduce Exhibit 14 into evidence at trial, defense counsel stated, “Pretrial objections.” Each time the State moved to introduce the remaining exhibits into evidence, defense counsel stated, “No objection.” Even if preserved for review, appellant's “fruit of the poisonous tree” position apparently was rejected by the Supreme Court in United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion). [14] In points of error nine, ten, thirteen, fourteen, fifteen, and sixteen, appellant argues that multiple State's exhibits and “the testimony placing appellant in possession of Nixon's credit cards” were inadmissible fruits of the illegal arrest. He specifically complains about State's Exhibits 24 through 26, which include the bloody grass, tire jack, and trash bag police found when appellant first showed them where he and Porter allegedly left the victim, and State's Exhibits 27 through 30 and 32, which include the various items police found in appellant's truck after he gave written consent to search the vehicle.FN11 Appellant argues that the admission of this evidence violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, §§ 9, 10, and 19 of the Texas Constitution, and Article 38.23. FN11. Appellant also complains of the admission of State's Exhibit 33, but the State did not offer this exhibit into evidence at trial.

When the State offered Exhibits 24, 25, and 26 into evidence during trial, appellant affirmatively stated that he had no objections. The affirmative acceptance of this previously challenged evidence waived any error in its admission. Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). Further, as we established in previous points of error, appellant was not subjected to an illegal arrest. Thus, the trial court did not abuse its discretion in admitting the remainder of the evidence at issue. Points of error nine, ten, thirteen, fourteen, fifteen, and sixteen are overruled.

FUTURE DANGEROUSNESS

In his eighteenth point of error, appellant claims that the evidence is legally insufficient to support the jury's affirmative answer to the “future dangerousness” special issue because he had no prior criminal convictions and was a “model prisoner” while incarcerated awaiting trial. We review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071, § 2(b)(1); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The State presented evidence at punishment that appellant had attacked several other women in the years before he committed the instant offense. Betty McDonald Clark testified that a man hid in the back seat of her car and attacked her from behind with a stun gun in August of 1999. When she escaped and ran inside a convenience store for help, the man stayed in her car for about five minutes, then exited the car and walked away. Police later found that the dome light inside Clark's car had been removed. A police officer testified that appellant's fingerprints matched the fingerprints on the dome light cover and door of Clark's car.

Judith Harper testified that a man hid in the back seat of her car and attacked her from behind with a stun gun after she left a grocery store in October of 1999. Store employee Michael Maiden opened the passenger door, at which point Harper ran inside the store to call police. The man exited the vehicle, asked Maiden “what [his] problem was,” and walked away. Harper testified that she later noticed that the dome light inside her car had been removed. Maiden identified appellant as the man involved in the incident.

Appellant's friend Crystal Hargett testified that she was riding with appellant once in 2000 when he asked her to knock on a woman's door and tell her that her car had broken down and that she needed to use her phone. When she asked him why, he stated that he needed to know if the woman was home or if she had any children, so he could go into her house when no one was there. Hargett pretended to go to the woman's door, then came back and told appellant she did not have a phone. Hargett testified that she was with appellant another time when he spotted a woman who left her car running at a gas pump. Appellant told Hargett to take the car and to knock the woman out if she came back to the pump, but Hargett refused his request.

In January 2001, Ashley Russell and Olivia Torres discovered that they were both dating appellant and decided to confront him by arriving together to pick him up from work. Appellant got into the car with them and drove off at a high rate of speed. He remained silent and kept driving when Torres asked him to let her out of the car, so she jumped out and began running down the road. Appellant got out of the car, chased her, shoved her, knocked her down, and repeatedly kicked and hit her while she was on the ground. When Torres got up and ran toward a nearby house for help, appellant ran back to his car and drove away.

Russell continued to date appellant and lived with him from February to November of 2001. She testified that appellant kept items in his car such as a wrench and a brown glass bottle containing a substance that he said would “put people to sleep.” Appellant spoke to Russell about “knocking older women out at car washes and taking their money,” and following women home and watching them to determine the times they left and came home from work. Russell also testified that appellant kept a spiral notebook in which he recorded descriptions of women, automobiles, and license plate numbers.

Teresa McMene testified that she was hit in the head from behind as she was leaving the salon where she worked in October of 2002. She fell to the ground and saw a man standing over her, so she began kicking and screaming. The man yanked on her purse and broke its strap, then fled on foot. Police found a beer bottle and a wrench at the scene. In November of 2002, McMene discovered that her phone and cosmetology license had been taken from the salon. The investigating police officer testified that someone had tried to pry open a window and had jimmied the lock on the back door. Kristie Anderson, who was living with appellant at the time, testified that appellant brought home a phone that was similar to the one stolen from McMene.

Nicole Anderson testified that appellant attacked her in December of 2002. About a month prior to the attack, she had seen appellant in front of her apartment building and had asked to borrow his phone. Then, on December 5, 2002, she was alone in her apartment with her newborn baby when she woke up at 3:00 or 4:00 a.m. and saw appellant standing in her room. As she held her baby and tried to turn on the light, appellant jumped on her, choked her, and demanded her money and credit cards. He threatened to kill her and held a knife to her at one point. Appellant stayed in her apartment for several hours and wore black gloves the entire time. He left through her bedroom window at 8:00 or 9:00 a.m., but returned with a brown glass bottle and said that he would “put [her] to sleep and make [her] forget everything that happened.” He poured the substance on a cloth and held it to her face, causing her to pass out. When she awoke around 10:00 a.m. and tried to leave her apartment with her baby, appellant was standing outside her front door. He asked her where she was going and if she told anyone what had happened. She said she had not told anyone about the incident and that she was going to visit a friend down the street. Appellant responded that “[she] could go, and he wouldn't hold [her],” and then left.

Kristie Anderson lived with appellant from February 2002 until the time of his arrest. She testified that on December 27, 2002, she found a piece of paper in their apartment with the name “Lola Nixon,” the phrase “Sitel girl” in parentheses, an address, and a license plate number written on it.FN12 She had found other pieces of paper before that contained names, addresses, phone numbers, license plate numbers, and descriptions of vehicles. She testified that appellant also kept a bottle in their apartment which contained a substance that “you could knock somebody out with.” She further testified that appellant told her he would “take [her] down with [him]” and that he would have her children taken away if she testified against him at trial. FN12. The evidence showed that appellant and Nixon had both worked at Sitel.

Both the facts of the instant offense and the other evidence showing appellant's escalating pattern of violence support a finding of future dangerousness. Sonnier v. State, 913 S.W.2d 511, 516–17 (Tex.Crim.App.1995); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). The evidence, viewed in the light most favorable to the verdict, was sufficient to support the jury's affirmative answer to the future dangerousness special issue. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Id. Point of error eighteen is overruled.

We affirm the judgment of the trial court. WOMACK and JOHNSON, JJ., concurred.

Swain v. Thaler, 466 Fed.Appx. 393 (5th Cir. 2012). (Federal Habeas)

Background: Following affirmance of capital murder conviction and death sentence, defendant sought federal habeas relief. The United States District Court for the Eastern District of Texas, denied petition. Defendant appealed.

Holdings: The Court of Appeals held that: (1) state court's decision that defendant was not in custody for purposes of Miranda when he made incriminating statements was not based on an unreasonable determination of the facts in light of evidence presented; (2) defendant was not prejudiced by trial counsel's failure to investigate and discover certain mitigation evidence; and (3) defendant's challenge to prosecution's use of “jury shuffle” procedure was procedurally defaulted. Affirmed.

PER CURIAM:

A Texas jury convicted Mario Swain of capital murder and sentenced him to death for the 2002 killing of Lola Nixon. Having obtained no relief from his conviction or sentence in Texas state courts, Swain turned to the federal courts for habeas relief. The district court denied Swain's habeas petition, see Swain v. Thaler, No. 6:06cv425, 2010 WL 1376910 (E.D.Tex. Mar. 31, 2010); but it granted a certificate of appealability on the following three issues, which Swain pursues in this appeal: (1) whether the introduction of Swain's confessions at trial violated his right to due process and privilege against self incrimination; (2) whether Swain's trial counsel rendered ineffective assistance of counsel by failing to adequately investigate evidence in mitigation of the death penalty; and (3) whether Swain defaulted his claim that the prosecution's use of a procedure known as a “jury shuffle” violated the Equal Protection Clause—and if he did not default this claim, whether he is entitled to relief. Swain has not shown that he is entitled to relief on any of these three grounds; therefore, we AFFIRM the district court's denial of his habeas petition.

I.

On December 28, 2002, Lola Nixon's friends contacted the police after Nixon did not show up for dinner the night before and they could not locate her the next day. Police went to Nixon's house on Iris Circle in Longview, Texas, and discovered evidence of forced entry and blood throughout the house. The police focused their investigation on a truck that one of Nixon's neighbors reported was parked in front of a vacant house on Nixon's block the night before. The truck was registered to Mario Swain's grandfather, and when the police spoke with him, he told them that Swain had been using the truck.

Detective Terry Davis spoke with Swain on the phone, and Swain told him that he could come speak with him where he worked, at a residential treatment home. Detective Davis and Detective Jim Nelson drove to the address that Swain had given and Swain's grandfather's truck was parked in the driveway. Swain came out and met them in front of the open garage door. They asked him why his truck was seen parked on Iris Circle the night before, and Swain told them that he had gone riding with a friend and ended up parking his truck there. One of the detectives told Swain that this was his opportunity to come clean, which prompted Swain to give the following account: The night before, he and a man named Casey Porter broke into a house on Iris Circle; when the owner came home, Porter attacked her; they put the woman, who was alive but unconscious, in the trunk of her car and drove to a remote location near the airport where they left her. Swain agreed to take the detectives to the place where he said that he and Porter had left the woman. Swain rode in the back of the detectives' car and directed them to a field where they discovered blood, a black trash bag, and a piece of a tire jack, but they did not find Nixon. Detective Davis testified that he did not recall handcuffing Swain at any point while they were at Swain's workplace or while Swain rode in their car, and that he administered Miranda warnings to Swain when Swain got into the detectives' car. Detective Nelson testified that he handcuffed Swain at some point “when we were in the garage talking” and that “[a]t that point, we told him we were going to detain him.”

The detectives then brought Swain to the Longview Police Department. There, he was read his Miranda rights again and he gave several written statements. In his first statement—which included an acknowledgment that Swain had the “right to remain silent and not make any statement at all and ... the right to [have] a lawyer present”—Swain admitted that he participated in burglarizing Nixon's house, but accused Porter alone of assaulting her. The police arrested Porter, but soon discovered that he had an alibi. The detectives confronted Swain with this information and after they informed him of his rights again, Swain provided a second written statement. This statement also included an acknowledgment “that I have the right to remain silent” and “to have a lawyer present.” Swain again admitted to participating in the burglary; however, this time, Swain claimed that a man named Brian Mason Woods was his accomplice and that Woods had assaulted the victim. As with Porter, the police questioned Woods and discovered that he had an alibi.

Several hours later, Swain was charged with burglary of a habitation and was brought before a magistrate who read him his rights in accordance with Texas law.FN1 Swain was then brought to the district attorney's office where a different detective and an investigator with the District Attorney's Office questioned him. He agreed to lead them to Nixon's body, and directed them to a vehicle containing her corpse that was close to where he had first led Detectives Davis and Nelson. Nixon had been beaten over the head and stabbed in the chest. The medical examiner later testified that the cause of death was “homicidal violence, including sharp force injuries, blunt force injuries, and probable strangulation.”

FN1. See Tex.Code Crim. Proc. art. 15.17(a) (“The magistrate shall inform in clear language the person arrested, either in person or through the electronic broadcast system, of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel.”).

After disclosing the location of Nixon's body, Swain was brought back to the Longview Police Department. There, Detective Davis read him his rights again and Swain gave a third written statement. As with the previous two statements, this statement included an acknowledgment of “the right to remain silent” and “the right to have a lawyer present.” This time, Swain admitted that he had committed the burglary on his own. He also stated that the burglary ended in a struggle with Nixon when she returned home; that he bludgeoned her with a tire tool and placed her semi-conscious body into the trunk of her car; and that he drove her to a field and left here there while she was breathing but barely conscious. Later, police found the tire tool that Swain had used to bludgeon Nixon; they also searched Swain's truck and found clothing with Nixon's blood on it and Nixon's car keys and garage door opener.

Swain was tried for capital murder and, over his objection, his several statements were introduced against him. After a three-day trial, a jury found him guilty and sentenced him to death. The Texas Court of Criminal Appeals (TCCA) upheld Swain's conviction and sentence; and the Supreme Court denied review. Swain v. State, 181 S.W.3d 359 (Tex.Crim.App.2005), cert. denied 549 U.S. 861, 127 S.Ct. 145, 166 L.Ed.2d 106 (2006). The TCCA later denied Swain's state habeas application. Ex parte Swain, No. WR–64437–01, 2006 WL 2706768 (Tex.Crim.App. Sept. 20, 2006) (unpublished). Swain then filed a petition for federal habeas relief, which the district court denied. Swain v. Thaler, No. 6:06cv425, 2010 WL 1376910 (E.D.Tex. Mar. 31, 2010). The district court granted a COA on three issues, which are the subject of this appeal.

II.

“This habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254....” Maldonado v. Thaler, 625 F.3d 229, 235 (5th Cir.2010). “Under AEDPA, if a state court has adjudicated a habeas petitioner's claims on the merits, he may receive relief in the federal courts only where the state court decision [1] ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or [2] ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Id. (quoting Rivera v. Quarterman, 505 F.3d 349, 356 (5th Cir.2007), in turn quoting 28 U.S.C. § 2254(d)) (internal quotation marks omitted).

“A decision is contrary to clearly established law if the state court ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases.’ ” Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1390, 182 L.Ed.2d 398 (U.S.2012) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion for the Court by O'Connor, J.)). “To merit habeas relief, a state habeas court's application of federal law must be not only incorrect but ‘objectively unreasonable.’ ” Maldonado, 625 F.3d at 236 (quoting Renico v. Lett, –––U.S. ––––, ––––, 130 S.Ct. 1855, 1865, 176 L.Ed.2d 678 (2010)). “[A] determination of a factual issue made by a State court shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “We review the district court's conclusions of law de novo, applying the same standard of review that the district court applied to the state court decision.” Maldonado, 625 F.3d at 236 (citing Jones v. Cain, 600 F.3d 527, 535 (5th Cir.2010)). “[W]e review the district court's findings of fact for clear error.” Charles v. Thaler, 629 F.3d 494, 498 (5th Cir.2011) (quoting Evans v. Cain, 577 F.3d 620, 622 (5th Cir.2009)) (internal quotation marks omitted).

III. A.

The first issue on which the district court granted a COA is whether the introduction of Swain's confessions at trial violated his right to due process and privilege against self incrimination. Swain contends that in order to secure Swain's confession, Detectives Davis and Nelson deliberately circumvented the prophylactic warnings established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by questioning him first, before they informed him of his rights; and only once he had confessed, did they give him Miranda warnings before questioning him again. Swain argues that this question-first interrogation procedure violates Miranda as explained in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The TCCA held that the introduction of Swain's statements at trial did not violate his constitutional rights.FN2 We first conclude that this decision was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. We also conclude that this decision was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Accordingly, Swain has not shown that the district court erred in denying him habeas relief on this claim.

FN2. In addition to rejecting Swain's Seibert claim on the merits, the TCCA determined that Swain procedurally defaulted this claim. See Swain, 2010 WL 1376910, at *4. The Respondent urges us to affirm the denial of this claim on the basis of procedural default. However, we choose to resolve this claim on the merits because it is clear to us that the claim “can be resolved more easily by looking past any procedural default.” Busby v. Dretke, 359 F.3d 708, 720 (5th Cir.2004) (“Although the question of procedural default should ordinarily be considered first, we need not do so invariably.... In this case, we believe that [the petitioner's] ... claim can be resolved more easily by looking past any procedural default. Accordingly, we shall assume that the claim is not defaulted.” (internal quotation marks and citations omitted)).

In Miranda v. Arizona, the Supreme Court held that the statements a defendant gives during custodial interrogation are inadmissible at trial unless, “[p]rior to questioning, [the] suspect ‘[is] warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ ” J.D.B. v. North Carolina, –––U.S. ––––, ––––, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602); see also United States v. Courtney, 463 F.3d 333, 336 (5th Cir.2006) (“[S]tatements obtained during a custodial interrogation without providing adequate warnings under Miranda are inadmissible.”). Thus, the necessity of administering Miranda warnings prior to police questioning depends on the custodial nature of the interrogation. Courtney, 463 F.3d at 336 (“[A] defendant who voluntarily gives a statement to law enforcement in a non-custodial situation need not be advised of his Miranda rights.” (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977))).

In Missouri v. Seibert, “the Supreme Court addressed ‘a police protocol for custodial interrogation that call[ed] for giving no warnings of the rights to silence and counsel until interrogation has produced a confession,’ ” at which point the interrogating officer would administer “ ‘ Miranda warnings and then lead[ ] the suspect to cover the same ground a second time.’ ” Courtney, 463 F.3d at 336 (quoting Seibert, 542 U.S. at 604, 124 S.Ct. 2601). The Seibert Court held that “statements obtained through the use of this technique are inadmissible.” Seibert, 542 U.S. at 604, 124 S.Ct. 2601; id. at 618, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment). However, we have recognized that “ Seibert only applies if the first statements were obtained in violation of Miranda.” Courtney, 463 F.3d at 336. In sum, if Swain's initial, oral statements, which were obtained during police questioning without Miranda warnings, were given in a non-custodial situation, then neither Miranda nor Seibert required the suppression of those statements or Swain's later, written statements, which were given following Miranda warnings.

The pertinent question then is whether Swain was in custody during the initial police questioning at his place of employment. “A suspect is ‘in custody’ for purposes of Miranda ‘when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.’ ” Id. at 337 (quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.1988) (en banc)); see also Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (“[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.”). The TCCA determined that Swain's “initial conversation occurred before Swain was taken into custody or arrested and was voluntarily given.” Swain argues that this decision entitles him to habeas relief on two grounds under 28 U.S.C. § 2254(d).

First, Swain contends that the TCCA's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2). Swain attacks the TCCA's decision because it “never accurately addressed or reconciled the testimony surrounding Swain's driveway and backseat interrogation, confessions and warnings[,] ... did not identify which testimony it viewed more credible,” and did not “pinpoint when (1) Swain was handcuffed, (2) taken into custody, or (3) Mirandized.” Swain Br. 33–34. He argues further that “[t]here are no state court findings that Det. Nelson handcuffed Swain after any of his four incriminating oral statements.” Id. at 34. At bottom, Swain contends that the evidence presented in the state proceedings proves that he was handcuffed before he was initially questioned by Detectives Davis and Nelson in front of his workplace. See, e.g., id. at 34 (“Davis was vague and uncertain on precisely when Swain was handcuffed and Mirandized, while Nelson was certain.... Nelson handcuffed Swain and then Davis questioned him....”). We disagree.

Contrary to Swain's assertions that Detective Nelson was certain about handcuffing Swain before the initial questioning, Detective Nelson's trial testimony is entirely vague about when he handcuffed Swain. The pertinent part of Detective Nelson's testimony, upon which Swain relies, is as follows: Q. Now, did you—at some point, did you handcuff Mr. Swain? A. Yes, I did. Q. When was that? A. That was when we were in the garage talking. Q. Okay. So you're in the garage talking— A. Yes, sir. Q. —and you handcuff him. A. I did. I told him we were going to detain him for further investigation. He was moving around quite a bit, walking around in the garage. I didn't know if he was going to—if he was just nervous or he was going to attempt to flee on us, so I handcuffed him. Q. And he wasn't free to go at that point. A. At that point, we told him we were going to detain him, yes, sir. Q. Which means he's not free to go. A. No, sir. This brief testimony does not indicate with any certainty that Detective Nelson handcuffed Swain before, as opposed to after, he had made incriminating statements about participating in the burglary. Moreover, Detective Nelson's testimony that immediately followed may suggest that Swain was handcuffed after his confession: A. After Mr. Swain told Detective Davis and I that he had participated in the burglary of the victim's residence—and we asked him—and he also says that they took items from the residence, we asked if had any of that property on his person as that time.

Then he says that he had some 50–cent pieces that he took from the house that were in his jacket pocket. We asked him to retrieve them. He said that it was okay for us to take them out of his pocket, which we did. (emphasis added). Swain points to the last line of Detective Nelson's testimony and argues, “Det. Nelson explained that he lifted the fifty-cent coins from Swain's coat pocket[,] [and] [t]he only reason this would be necessary would be if Nelson had already handcuffed Swain, who could no longer reach the pockets.” Swain Br. 30. However, the penultimate sentence, emphasized above, may suggest the opposite: that Swain was not yet handcuffed—otherwise, it is arguable that Detective Nelson would not have asked Swain to retrieve the coins from his pocket. Furthermore, Detective Davis testified that he did not recall handcuffing Swain at any time while they were at the house and speaking with him.

Based on this ambiguous testimony, we cannot say that the TCCA's decision that Swain was not in custody when he made his initial incriminating statements was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

Next, Swain contends that the TCCA's decision that he was not in custody when he was initially questioned resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Again, we disagree. As previously explained, the relevant inquiry for “custody” in the context of Miranda warnings is whether “a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.' ” Bengivenga, 845 F.2d at 596 (citing, inter alia, Berkemer, 468 U.S. at 440, 442, 104 S.Ct. 3138). The testimony established the following facts regarding the initial police questioning of Swain in front of his place of employment: After the police determined that Swain had possession of the truck that was seen parked on the victim's block the night of her disappearance, Swain telephoned Detective Davis and told him that he could come speak with him at his work; when the police arrived, Swain agreed to speak with the officers voluntarily; all of the initial questioning occurred in an environment that was familiar to Swain and open to public view; and Swain was free to move around. Moreover, as just described, the testimony does not support Swain's contention that he was handcuffed before this initial questioning. Thus, on this record, Swain has not shown that the TCCA's decision that he was not in custody—and thus, that the introduction of his statements at trial did not violate Miranda or Seibert—resulted in a decision that was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 664–66, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Thus, we see no error in the district court's decision that Swain is not entitled to habeas relief under 28 U.S.C. § 2254(d) on his claim that the introduction of his statements at trial violated his constitutional rights.

B.

The second issue on which the district court granted a COA is whether Swain's trial counsel rendered ineffective assistance of counsel by failing to adequately investigate evidence in mitigation of the death penalty. Swain contends that if his trial counsel had conducted a reasonable investigation, he would have uncovered significant evidence of traumatic events from Swain's childhood and of Swain's psychological problems. Swain argues that had his trial counsel presented this evidence to the jury, the jury would not have sentenced him to death. We conclude that the TCCA's decision that Swain did not receive ineffective assistance of counsel was not contrary to, and did not involve an unreasonable application of, clearly established federal law.

In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the Supreme Court addressed a Sixth Amendment ineffective-assistance-of-counsel claim based on the alleged failure of trial counsel to adequately investigate and present evidence in mitigation of the death penalty. Id. at 514, 123 S.Ct. 2527. The Court explained that “the legal principles that govern claims of ineffective assistance of counsel [established] in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),” also governed Wiggins' claim. Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. “An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “To establish deficient performance, a petitioner must demonstrate that counsel's representation ‘fell below an objective standard of reasonableness.’ ” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

The TCCA held that Swain's claim failed on both components of the Strickland ineffective-assistance standard. The district court, however, “assum[ed] arguendo that Swain can demonstrate deficient performance and ... focus[ed] on the prejudice prong of the Strickland test.” Swain, 2010 WL 1376910, at *8. The district court held that “the state court was not unreasonable in finding that even had Swain presented the evidence of his upbringing and psychological problems, there was not a reasonable probability that at least one juror would have voted to spare his life,” and “[a]ccordingly, [that] Swain has failed to show that the state court's decision was contrary to, or an unreasonable application of, the standards provided by clearly established federal law for succeeding on an ineffective assistance claim.” Id. at *12. We agree with the district court's conclusion regarding the prejudice prong of Swain's Strickland claim, and therefore, we need not address the deficient performance prong. Day v. Quarterman, 566 F.3d 527, 536 (5th Cir.2009) (“If the petitioner fails to prove the prejudice component, the court need not address the question of counsel's performance.” (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052)).

The district court accurately described the aggravating and mitigating evidence that was presented in the punishment phase of Swain's trial, as well as the mitigating evidence that Swain presented in his habeas proceeding, which was not introduced at trial, but Swain contends was available: At the punishment phase of Swain's capital murder trial, the state presented evidence that in January 2001 he assaulted a fourteen-year-old girl named Olivia Torres, and in December 2002 he burglarized the home of a woman named Nicole Anderson, and rendered her unconscious by making her inhale halothane, a general anesthetic. One of Swain's girlfriends, Ashley Russell, testified that Swain spoke to her about knocking out older women at car washes and taking their money, and showed her a bottle of halothane. She also saw a book which Swain kept containing driver's license numbers, car models, and descriptions of women driving the cars.

Crystal Hargett testified that Swain asked her on more than one occasion to help him rob victims. Teresa McNene testified that someone struck her in the back of the head in October 2002 and tried to steal her purse. A month later, someone burglarized her work area, stealing her cosmetologist license and her cordless phone. Another of Swain's girlfriends, Kristie Anderson, testified that Swain brought a cordless phone to his apartment. Anderson gave the phone to Officer Monty Gage, who testified that the serial number on the phone matched the serial number of McNene's phone. Kristie Anderson also testified that she found papers at Swain's apartment with the victim's name and other names, both male and female, addresses, vehicle descriptions, and license plate numbers, written in Swain's handwriting. Betty McDonald testified that in 1999 she was attacked from the back seat of her car by a man with a taser. Officer Gregory Stewart testified that fingerprints taken from McDonald's car after the incident were Swain's.

The Defense called five witnesses: Swain's mother, his maternal grandfather and grandmother, one of his jailers, and a criminologist. Swain's Mother, Mechelle Todd, testified that after he was born the family moved between Long Beach, California, Longview, Texas, and Houston, Texas. She divorced Swain's father when Swain was five years old and married his stepfather three years later. She testified that Swain got along well with his stepfather. When he was twelve years old, Swain moved from his residence in California back to Longview, Texas and lived with his grandparents for about four or five years. He then moved back to California, but did not like it and returned to Longview. Both grandparents testified that Swain caused them no trouble, was quiet, obedient and respectful, and attended church regularly. All three testified that there was good in Swain and that Swain had a good side which was worth saving. On cross-examination, Swain's grandfather and his mother admitted that they were aware that Swain and another youth were involved in an incident of sexual cruelty involving a cow belonging to Swain's uncle, and his grandfather had to pay the veterinarian bill. Swain's jailer testified that Swain had not assaulted anyone during the year he had been incarcerated and had not caused trouble other than minor infractions, such as being in the wrong part of the jail at head count time. The criminologist testified to security procedures in the Texas prison system.

During his state post-conviction proceedings, Swain presented a comprehensive social history report from Sheri Stillwell, and a mit[i]gation affidavit from Dr. Kate Allen. Both are Licensed Clinical Social Workers, and both opined that Swain suffered from post-traumatic stress disorder as a result of (1) seeing his father beat his mother, and (2) being locked in a closet while his father beat his mother, when Swain was a young child. Swain also suffered from attachment issues as a result of frequent moving and having to share his mother with his stepfather and stepbrother. Finally, he was sexually abuse[d] when he was six years old by being encouraged to watch pornographic movies by his sixteen-year-old uncle, and he himself began having sexual intercourse at age twelve. Swain's psychological problems appeared serious enough to his mother that she took him to see a psychologist when he was ten or eleven, but the psychologist told her that nothing was wrong with him. He began engaging in criminal activity (shoplifting) when he was twelve years old. Swain, 2010 WL 1376910, at *8–9 (footnote omitted).

On this record, we cannot say that the TCCA's decision—that there was no prejudice under the Strickland formulation in Swain's trial attorney's failure to uncover and present this mitigating evidence to the jury—resulted in a decision that was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court. In Miniel v. Cockrell, 339 F.3d 331 (5th Cir.2003), this court considered the same type of claim that Swain presents here. In support of his ineffective assistance claim, Miniel had introduced affidavits from several relatives and friends describing the mitigating evidence that Miniel argued was available:

Miniel's [a]ffidavits paint a picture of a rough childhood. Miniel's biological mother, Carmen Cantu, abandoned him when he was only a few days old. He was adopted by his aunt and uncle, Jesse and Manuel Miniel. He grew up in a house with six adoptive siblings in Rock Falls, Illinois, and his parents often fought over his father's drinking and philandering. They also fought over Manuel's treatment of Miniel. Manuel frequently beat Miniel from the time he was very young and some of these beatings were severe. In addition to the physical abuse, the children suffered from neglect. Jesse worked at a factory at night, leaving Manuel alone with the children. Manuel admits that he was an alcoholic and that he would often go to bars when Jesse was working. He would sometimes leave his children alone in the car outside a bar for hours at a time, even during the harsh Illinois winters. Other times, he would leave them alone in the house. Id. at 345. We said that “Miniel's [a]ffidavits are mild when compared to the evidence presented by the petitioners in Wiggins v. Smith, [539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ], and Williams v. Taylor, [529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ],” Miniel, 339 F.3d at 347 n. 10; and, accordingly, we held that “jurists of reason could not debate the correctness” of the determination that “Miniel's ineffective assistance claim fails for a lack of prejudice.” Id. at 346. It is clear that the evidence Miniel presented in his habeas petition was stronger mitigating evidence than the evidence Swain presents in his habeas petition here. Thus, like Miniel, Swain has not shown that he is entitled to habeas relief based on ineffective assistance of counsel. For these reasons, we affirm the district court's decision to deny Swain habeas relief under 28 U.S.C. § 2254(d) on this claim.

C.

The third issue on which the district court granted a COA is whether Swain defaulted his claim that the prosecution's use of a procedure known as a “jury shuffle” violated the Equal Protection Clause of the Fourteenth Amendment, and if he did not default this claim, whether he is entitled to relief. We conclude that Swain procedurally defaulted this claim and therefore, we do not decide whether Swain would be entitled to relief.

At the start of voir dire in Swain's trial, the prosecution requested that the venire panel be shuffled, causing more white people to be at the front of the venire panel and making it less likely that a black person would be seated on the jury. Swain now contends that this violated his right to equal protection of the laws. However, Swain did not raise this issue in his direct appeal. As a result, when Swain later presented this claim for the first time in his state habeas petition, the TCCA concluded that Swain had defaulted this claim. Likewise, the federal district court held that “[g]iven that Swain has failed to establish either that he had good cause for failing to raise this claim or that a fundamental miscarriage of justice would occur if the Court declined to address the substance of the claim, the Court finds that this claim is barred from review under the doctrine of procedural default and that dismissal of [this] claim is appropriate.” Swain, 2010 WL 1376910, at *12.

Swain contends that the district court erred because the state procedural bar is not regularly enforced, and thus, that it is not an adequate and independent state bar to habeas relief in federal court. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). That argument, however, is foreclosed by this court's decision in Dorsey v. Quarterman, 494 F.3d 527 (5th Cir.2007):

The Texas Court of Criminal Appeals has held that record based claims not raised on direct appeal will not be considered in habeas proceedings. Ex parte Gardner, 959 S.W.2d 189, 191 (Tex.Crim.App.1996, clarified on reh'g Feb. 4, 1998). This procedural rule was firmly established by Gardner before Dorsey's appeal following his trial in 2000. This court recognizes that the Gardner rule sets forth an adequate state ground capable of barring federal habeas review. Busby v. Dretke, 359 F.3d 708, 719 (5th Cir.2004) and cases cited therein. Accordingly, the district court erred by failing to apply the procedural bar to this issue. Dorsey makes no claim of cause and prejudice and does not assert that a miscarriage of justice would result if the claim is not considered on its merits. Id. at 532 (footnotes and citations omitted).FN3

FN3. Swain cites several decisions of the TCCA that post-date our decision in Dorsey in which the TCCA allowed “an illegal sentence claim” to be raised for the first time in a habeas petition. However, Swain's jury shuffle claim is a “record based claim[ ]” analogous to the Batson claim raised in Dorsey; it is not an “illegal sentence claim.” Therefore, we fail to perceive the relevance of those cases.

Like the petitioner in Dorsey, Swain appealed his conviction after the TCCA decided Gardner; and, like Dorsey, Swain makes no claim of cause for failing to raise his jury shuffle claim on direct appeal, and does not assert that a miscarriage of justice would result if we did not consider the claim on its merits. Therefore, we see no error in the district court's determination that Swain's jury shuffle claim is procedurally barred.

IV.