Hammett v. State

• Decision Date: 28 February 1979
• Docket Number: No. 58453,58453
• Parties: William Jack HAMMETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 699

578 S.W.2d 699

William Jack HAMMETT, Appellant, v. The STATE of Texas, Appellee.

No. 58453.

Court of Criminal Appeals of Texas, En Banc.

Feb. 28, 1979.

Rehearing Denied April 11, 1979.

Sam H. Bass, Jr., Freeport, Robert Tarrant, Houston, Don R. Irvin, Alvin, for appellant.

Ogden Bass, Dist. Atty. and Doyle W. Neighbours, Asst. Dist. Atty., Angleton, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Our prior opinions are withdrawn and the following opinion is substituted.

Appeal is taken from a conviction for the offense of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). The jury returned an affirmative finding to each special issue submitted under Article 37.071(d), V.A.C.C.P., and accordingly punishment was assessed at death.

Mrs. Raymond Greer, the widow of the deceased, testified that on the evening of October 14, 1976, her husband returned to their home in Clute from Houston. After the evening meal she was watching TV and he was reading the newspaper. She heard a sound something like a door slamming and thought it was her husband's son, Raymond, Jr., returning. She noticed that the time was approximately 8:20. She then heard two voices. They said, "Get up, get up out of the goddamn chair, get up," over and over again. One of the men was holding a gun. She started to stand up and was thrown to the floor by her husband. She heard someone say immediately after the shooting, "Get his billfold, where is his billfold?" She then heard someone say, "Let's get out of here. Come on, let's go. Let's get out of here."

She also testified that she and her husband had a safe in their home concealed below a floor tile. After the shooting she discovered that the tile had been broken. She thought her husband was still alive and called for help. She positively identified the appellant as the man who shot her husband.

Arthur Pryor, at the time of the offense an investigator for the Clute Police Department, testified that he was called to the Greer home to investigate a possible murder. In the course of his investigation, he found several .45 caliber bullets and spent shell casings. He also located a .22 caliber bullet fragment. Through this witness numerous photographs of the scene of the crime were also introduced into evidence.

Carl Sherlock testified that his former wife's nephew, Curtis McGuffey, sold him a .45 caliber pistol for $50.00 in 1976. After a conversation with his ex-wife, Janette Sherlock, about some "difficulties she had," he called Officer J. L. Nicholson and turned the pistol over to him.

J. L. Nicholson of the Houston Police Department testified that in early 1977 he had a conversation with Carl Sherlock and that as a result of this conversation a .45 caliber pistol was turned over to him by Sherlock. Jay Evans, formerly a detective with the Harris County Sheriff's Office, testified that during January, 1977, he was participating in the investigation of the killing of Raymond Greer in Brazoria County. On January 14, 1977, he received a .45 caliber pistol from Nicholson and turned it over to the Houston "Firearms Ballistics Section."

Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County and Houston, testified that an autopsy was performed on the body of Raymond Greer on October 15, 1976. Six gunshot wounds were found and one bullet was recovered from the body. He determined the cause of death to be multiple gunshot wounds to the chest, abdomen, back, right upper extremity, and buttocks.

C. E. Anderson, a ballistics expert with the Houston Police Department, testified that the bullet recovered from Greer's body and the bullets found in the Greer home were all fired from the .45 caliber automatic which Nicholson recovered from Sherlock.

Arthur Pryor was re-called and testified outside the presence of the jury as to the circumstances of the taking of appellant's written confession. After hearing additional evidence from the appellant and considering evidence previously offered at a pre-trial motion to suppress hearing, the trial court found the confession admissible. Appellant's confession, omitting the warnings and formal portions, is set out in the appendix. When originally introduced before the jury at the guilt-innocence stage of the trial, certain extraneous matters were deleted. At the punishment phase of the trial the undeleted confession was admitted before the jury.

Janette Sherlock testified for the defense that she had been acquainted with Raymond Greer during his lifetime and intimated that he had been involved in some type of cocaine or narcotics smuggling. She admitted that she had been arrested and charged in connection with the instant offense but had been "no-billed" by the grand jury. She testified that during the time she was held in jail in connection with this offense she suffered a miscarriage. She testified that the appellant was the father of that baby. The appellant did not testify and offered no other evidence at the guilt-innocence stage of the trial.

At the punishment phase of the trial, Richard Tywater, a detective with the Harris County Sheriff's Department, testified as to the circumstances surrounding a second written statement made by the appellant while in his custody in which appellant confessed to this and other crimes. This confession, State's Exhibit 17, was then admitted into evidence. State's Exhibit 17, omitting the warnings and formal parts, is also set out in the appendix.

Dr. Bill W. Henry, an associate professor of psychiatry at the University of Texas School of Medicine in Galveston, testified that he diagnosed the appellant as an antisocial personality type, for which there is no cure or acknowledged treatment.

The State then introduced evidence of a prior conviction for burglary of a habitation in Denton County in December of 1975. The State also introduced evidence of a conviction for driving a motor vehicle without the owner's permission and for breaking and entering a motor vehicle in 1966 and evidence of a conviction for the offense of burglary in 1969. The appellant presented no evidence at the punishment phase of the trial.

In his first ground of error, appellant contends that the trial court erred in permitting the prosecutor to inform the jurors during voir dire examination of the effect of their yes or no answers to the special The record reflects that after the sixth juror was selected the appellant filed a motion in limine requesting the court to direct the prosecutor not to inform the prospective jurors of the effect of their yes or no answers to the special issues. The motion in limine was overruled and the court granted appellant a running objection.

issues submitted under Art. 37.071, V.A.C.C.P., at the punishment phase of the trial.

In Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977), relied on by the appellant, we held that reversible error was not presented when the trial court prohibited counsel for the defendant from telling the jury panel during voir dire examination the effect of a "yes" or "no" answer to the special issues submitted at the punishment stage of the trial. In Burns v. State, supra, we stated:

"In Hovila v. State, supra (532 S.W.2d 393 (Tex.Cr.App.1976)), While noting that the jury would know the effect of their answers to questions submitted under Article 37.071, supra, it was stated: The 'new statutes' require 'them (the jury) only to answer questions while the judge assesses the punishment based on such answers.'

"Since it is the duty of the jury to answer the factual inquiries and the duty of the court to assess punishment based on these answers, we find no error in the court disallowing counsel to tell the jury panel the effect of their 'yes' and 'no' answers." (Emphasis supplied.)

In Battie v. State, 551 S.W.2d 401 (Tex.Cr.App.1977), cert. denied, 434 U.S. 1041, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978), we stated:

"While it has been held that great latitude should be allowed a party interrogating veniremen to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855; Smith v. State, Tex.Cr.App., 513 S.W.2d 823, it has also been recognized by this Court that the decisions as to the propriety of any questions is left to the discretion of the trial court and The only review will be for abuse of that discretion." (Emphasis supplied.)

In the instant case, we find that the question of whether the prosecutor in this case or counsel for the defendant, as in Burns v. State, supra, should be allowed to explicitly tell the prospective jurors the effects that their answers to the special issues submitted under Art. 37.071 is addressed to the sound discretion of the trial court and a case will not be reversed unless the appellant can demonstrate an abuse of the trial court's discretion. No abuse of discretion is shown in allowing the prosecutor to advise prospective jurors of the effect of their answers when, as we observed in Hovila, the jurors would already know the effect. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in permitting the prosecutor "to imply to the jurors during voir dire examination that the terms 'intentionally and knowingly' was a 'chance' or 'possibility.' " Although somewhat obscure, it appears to be appellant's contention that the prosecutor erred when attempting to explain to the prospective jurors what he understood the term "probability" to mean in the second special issue submitted under Art. 37.071. In describing the term "probability," the prosecutor on a number of occasions used the term "chance" or "possibility." Appellant refers us only to a series of pages and line numbers without further elaboration.

The records reflects that 41 prospective...