Friday, November 2, 2012

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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.

MISCELLANEOUS

For additional information and statistics, please go to the Texas Department of Criminal Justice website at www.tdcj.state.tx.us.