Burns v. State

• Decision Date: 19 October 1988
• Docket Number: No. 69641,69641
• Citation: 761 S.W.2d 353
• Parties: William BURNS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 353

761 S.W.2d 353

William BURNS, Appellant, v. The STATE of Texas, Appellee.

No. 69641.

Court of Criminal Appeals of Texas En Banc.

Oct. 19, 1988.

Rehearing Denied Dec. 7, 1988.

James E. Davis, Texarkana, for appellant.

John F. Miller, Jr., Dist. Atty. and James Elliott, Asst. Dist. Atty., Texarkana, Jim Vollers, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was convicted of the offense of capital murder, and, in accordance with affirmative answers rendered by the jury to the three special issues submitted at the punishment phase pursuant to Article 37.071, V.A.C.C.P., the trial court assessed his punishment at death. Direct appeal to this Court is automatic. Id.

Appellant challenges sufficiency of the evidence to support the jury's affirmative answer to special issue two, which inquires "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Thus we turn to the evidence adduced, beginning with the circumstances of the offense itself, which this Court has repeatedly held may alone sustain an affirmative answer to special issue two if "severe enough." E.g., King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982); Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

While every murder committed in the course of a robbery is "senseless," Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), neither the facts of the instant offense, nor appellant's participation therein, appears so heinous or shocking as to evince a particularly "dangerous aberration of character." King v. State, supra, at 504; Cass v. State, 676 S.W.2d 589 at 593 (Tex.Cr.App.1984). The record shows that sometime close to midnight on Friday, March 27, 1981, twenty two year old appellant and two companions, his brother Victor, and Danny Ray Harris, proceeded to the Texarkana Wood Preserving Company with the apparent intent to rob whomever they might find working there. Appellant had at one time worked the late shift at the creosote plant, and "would have known" an employee would be working late to stoke the fire in the boiler. Furthermore, appellant could have anticipated this person would be carrying an appreciable sum of money because he knew Friday was payday. There is some indication appellant was under the influence of "dope" of an unspecified powdered variety which he had ingested through his nose sometime shortly before the three set out.

What happened at the creosote plant may be gleaned from a pair of statements appellant gave afterwards. As they approached the plant, appellant carried a .22 caliber Winchester rifle that Victor had retrieved from the trunk of his car. Additionally, tucked into appellant's pants was a .22 caliber pistol. Through a crack in the tin wall of the "treating room" of the plant, appellant observed Johnny Lynn Hamlett, the deceased, an eighteen year old high school senior, who was working the late shift that night. His cohorts urged appellant to shoot Hamlett with the rifle. Instead appellant handed it to Harris, who stepped around to a "big opening ... on the side where the conveyor belt goes in." Appellant pulled out the pistol and fired off the only two rounds it contained through the crack. Next appellant "heard the rifle start popping off." Ten or eleven shots were fired from the rifle, in appellant's estimation. ¹ According to the autopsy, Hamlett died "of multiple gunshot wounds of the neck, chest and head."

Harris took Hamlett's wallet, emptied it of the $110.00 it contained, which he split with Victor, and, after starting to throw the wallet away, gave it instead to appellant, who "didn't have a billfold and ... wanted one." Appellant had the wallet on his person when he was arrested several weeks later. Inside the wallet police found a brief newspaper article chronicling early stages of the investigation of Hamlett's killing.

In final argument the prosecutor invited the jury to find appellant guilty as a party on the basis of the above evidence, thus:

"We had to prove that William Burns did this. You have seen the evidence of that. You have seen and heard his statement where he tells you he shot twice. You remember the law of parties? If you aid, encourage, assist in any way? It's in the charge. You can read it. He told you he did that."

At the punishment stage it was shown that approximately a year before the murder of Hamlett, on the night of February 23, 1980, appellant was involved in another killing in the parking lot of a nightclub. With appellant apparently somewhere nearby his brother Victor shot one Leon Callahan in the back. The shot proved fatal. Appellant asked Victor, "did he get him." Then the two Burns brothers "grabbed" Callahan's companion, Bryan Sanders, and forced him into their car. On the way out of the parking lot Victor shot at Callahan's tires. With appellant driving, they started out for Texarkana Lake, where, the brothers told Sanders, he was to be killed. Instead appellant stopped the car on the side of the highway. He told Sanders he had a shotgun in the trunk and proceeded to open it. When Sanders intervened, a fistfight ensued. Within a minute or two a passing Highway Patrolman arrived to stop the altercation. Appellant and his brother were arrested.

Two police officers testified they knew appellant's reputation in the community for being peaceable and lawabiding to be bad. With this, the State rested. No psychological or psychiatric testimony was presented relating to appellant's potential for future dangerousness. Other than the unadjudicated murder and kidnapping, the State presented no criminal record or past criminal history. Appellant produced five citizens and three family members to testify his reputation for peaceableness was good. No other mitigating evidence was admitted.

Over the past dozen years this Court has articulated its standard for appellate review of sufficiency of evidence to support an affirmative answer to special issue two in a number of ways. We have consistently said we view the evidence in the light most favorable to the jury's answer, e.g., Starvaggi v. State, 593 S.W.2d 323, 325 (Tex.Cr.App.1979), ² without clearly explicating what view of the evidence would be the most favorable in light of the jury's constitutional function to weigh any proffered evidence in mitigation. In other instances, seemingly more mindful of that function, we have held that the evidence was such that "the jury was justified in finding that the aggravating factors outweighed the mitigating factors[,]" e.g., Duffy v. State, 567 S.W.2d 197, 209 (Tex.Cr.App.1978); Demouchette v. State, 591 S.W.2d 488, 492 (Tex.Cr.App.1979); thus suggesting "a more substantive review" of the evidence than had been conducted in other cases. See Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97, 151 (1979). As if to disown that notion, however, the Court has at least on one occasion combined these two pronouncements, finding that "the evidence, viewed in a light most favorable to the verdict, is sufficient for the jury to have found that the mitigating factors introduced by appellant did not outweigh the aggravating factors and that there is a probability that appellant would commit acts of violence that would constitute a continuing threat to society." Green v. State, 682 S.W.2d 271, 289-90 (Tex.Cr.App.1984). ³ Recent decisions have abandoned altogether the inquiry whether the evidence would justify a jury finding that aggravating factors outweighed mitigation. Instead, the Court has begun to apply an unadulterated Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard, beginning with Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App. 1986). A typical articulation of the standard appears in Harris v. State, 738 S.W.2d 207, at 225-26 (Tex.Cr.App.1986):

"When we view the facts, we must evaluate the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have made the finding beyond a reasonable doubt."

See also Alexander v. State, 740 S.W.2d 749, 761 (Tex.Cr.App.1987) ("... applying the 'rational trier of fact' test...."): Livingston v. State, 739 S.W.2d 311, 340 (Tex.Cr.App.1987) ("... whether the evidence ... would lead any rational trier of fact to make the finding...."). Thus has the Court narrowed its focus on appeal to "whether a rational trier of fact could have found the elements of Art. 37.071(b)(2), supra, beyond a reasonable doubt[,]" Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987), opining that this appellate standard will adequately serve to "make certain that the death sentence is not 'wantonly or freakishly' imposed[.]" Id., at 63. ⁴ See also Beltran v. State, 728 S.W.2d 382, 389-90 (Tex.Cr.App.1987); Cockrum v. State, 758 S.W.2d 577 (Tex.Cr.App. 1988).

Measuring the evidence adduced in the instant case to prove future dangerousness against this standard, we find, not without some trepidation, that it is sufficient. Though it is likely the jury accepted the prosecutor's invitation to convict appellant as a party to Danny Ray Harris' act of shooting Hamlett repeatedly with the .22 rifle, appellant himself admitted to firing his pistol twice at the deceased, and at least two of the recovered bullets appear to have come from that gun. See n. 1, ante. Though acting at the instigation of his companions, appellant was under no duress or domination so far as the record reveals. Approximately a year before, appellant participated as a party to his brother's killing of another individual, and took a principal role in the aggravated assault and kidnapping of yet another. Thus the record reflects at least a bare repetition of deadly violence on appellant's part toward others. There was evidence, albeit contested, that his reputation for peaceableness was not good. Finally,...