Zimmerman v. State

• Decision Date: 20 April 1988
• Docket Number: No. 69058,69058
• Citation: 750 S.W.2d 194
• Parties: John Charles ZIMMERMAN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 194

750 S.W.2d 194

John Charles ZIMMERMAN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 69058.

Court of Criminal Appeals of Texas En Banc.

April 20, 1988.

Rehearing Denied May 18, 1988.

Jay W. Burnett, Terrence Gaiser, Houston (court appointed), for appellant; Robert A. Morrow, Catherine Greene Burnett, Janet Seymour Morrow, Houston, of counsel.

John B. Holmes, Jr., Dist. Atty., James C. Brough and Robert Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

Appellant was convicted of capital murder. ¹ After the jury found appellant guilty and answered the two special issues submitted under Article 37.071, V.A.C.C.P., the court imposed the death penalty as required by law. V.T.C.A., Penal Code, § 12.31.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction or the affirmative answers to the special issues. Nevertheless, he raises fourteen points of error, nine of which allege that reversible errors were committed during the voir dire examination of the jury panel. The remaining points of error claim: (10), (11) that the trial court erred in admitting in violation of Articles 38.11 and 38.22, V.A.C.C.P., a letter written by appellant to his wife while he was in custody; (12) that appellant's trial was barred by the Double Jeopardy Clause of the State and Federal Constitutions; (13) that the trial court erred in admitting evidence via other parts of the aforementioned letter of unsubstantiated extraneous acts of misconduct at the penalty stage of the trial; and (14) that the trial court erred in overruling appellant's timely second motion to quash the indictment.

We reverse the conviction because of the improper introduction of appellant's letter or parts thereof at the guilt and penalty stages of the trial. In view of our disposition of the cause, we find no necessity in discussing the nine points of error dealing with the voir dire examination, ² but we shall discuss the other points.

In order to place the facts in proper perspective, we shall briefly mention the same.

According to several witnesses appellant was seen at Jacinto City Elementary School on March 24, 1977, between 2:30 p.m. and 3:00 p.m. He was looking for Ramona Abner, the daughter of his sister-in-law, Sandra Abner. Norma Salinas, a teacher's aide, testified that appellant had told her that Ramona's parents were in the hospital. Four other witnesses stated the man they identified as appellant told them Ramona's mother, or both parents, were in the hospital or that some emergency had occurred. Leonard Jones, principal at Jacinto City Elementary, testified that no one in his office gave appellant permission to take Ramona from school on March 24.

Douglas Bogott, the physical education teacher, released Ramona from class after appellant told him: "There's an emergency. I need to pick up Ramona Abnor." Bogott recalled that Ramona immediately stood up and came forward, saying: "That's my uncle." When Bogott asked appellant whether he had a permission slip to take Ramona out of class, appellant answered "no," but stated that he would get one on the way out. The two then left the auditorium-gym together.

Sandra Abner testified that on March 24 her ten-year-old daughter Ramona failed to return from her third grade classes at Jacinto City Elementary. Sandra noticed that her daughter's bicycle was in the yard at 4:15 p.m., but that Ramona was nowhere around. Upon the advice of her husband, James Abner, Sandra went to the police station shortly before 5:00 p.m. and reported Ramona as missing. Sandra then drove to her sister's apartment, where she saw the appellant. Sandra asked the appellant whether he or Sherry, Sandra's sister, had picked Ramona up from school that day and appellant replied "no." ³ Sandra then informed appellant that her daughter was missing, to which appellant responded: "I'll go get Sherry, and we'll be right over." Sandra testified that appellant "acted concerned, like I considered normal for an uncle, I guess."

Appellant and Sherry arrived at Sandra's home around 5:15 p.m. Appellant asked Sandra for a picture of Ramona and said he would get a couple of buddies to help look for her. Sandra next saw appellant at her home after 7:00 p.m. when he came to pick up Sherry. Sandra testified that at that time the police arrived and "picked him [appellant] up in front of the house there." Sandra learned of Ramona's death around 5:30 a.m. on March 25.

At 3:15 a.m. on March 25 Patrolman Bill Norman, a patrolman with the Hedwig Village Police Department, was called to the corner of Gessner and Katy Freeway in Houston where he met "Chief Jamail" of Jacinto City. Chief Jamail was in another car and Patrolman Norman later learned that appellant was also riding in the car. Norman followed Jamail's vehicle to a townhouse project under construction in the Memorial area of Harris County. Chief Jamail and two police officers informed Norman that they were "looking for a girl's body," and it was Norman who ultimately found the body in the utility room of an unfinished garage. According to Larry Kleine, who had been a construction supervisor at the townhouse project, appellant was employed as a painter at that job site during March 1977.

Dr. Joseph A. Jachimczyk, Chief Medical Examiner for Harris County, performed an autopsy on Ramona Abner at 10:00 a.m. on March 25, 1977. He determined that "the cause of death was from the cuts and stabs in the neck, chest, back, and upper extremities. Basically, she bled to death from the cuts, especially the neck wound." Dr. Jachimczyk testified that the cuts were made by a cutting instrument such as a knife and that "there was partial decapitation inasmuch as the cuts went down to the cervical vertebra itself; ... that is, the muscles that holds (sic) the vertebra together."

"Q. Would these three, possibly five, and at least three deep wounds be consistent with and explainable by someone placing a knife to someone's neck and having that person twist away?

"A. I don't think so, no, sir.

"Q. Were those the type of wounds that someone could encounter or suffer just by holding the knife at someone's neck and having that person just twist away once?

"A. Well, one of them could, but not the other two. In other words, there were three deep separate wounds.

"Q. So, if someone encountered one of those cuts by one twisting away, there would have had to have been at least two more and possibly four more?

"A. Two more, possibly three more for a total of five."

Dr. Jachimczyk also concluded that Ramona had been forcibly raped before she died.

According to the doctor's testimony, there was "fixed rigor mortis" when the autopsy began at 10:00 a.m. and this stage of rigor mortis was consistent with death occurring at approximately 3:30 p.m. the day before. On cross-examination Dr. Jachimczyk also stated that the condition of the body would be consistent with death occurring at approximately 5:30 p.m. or as late as 9:30 p.m. on March 24.

At this point the State rested and the defense called its only witness. William L. Bond, a retired investigator for the Medical Examiner's Office, testified that he arrived at the construction site where Ramona was found at 5:20 a.m. on March 25. Around 6:00 a.m. Bond helped place Ramona on a stretcher and stated that her limbs were still movable to some extent. After eliciting Bond's testimony the defense rested and both sides closed.

Points of error ten and eleven separately contend that the trial court committed error by admitting into evidence a letter written by appellant to his wife, thus violating Articles 38.11 and 38.22, V.A.C.C.P. In pretrial motions appellant argued that the letter was not admissible, because it was a privileged communication between husband and wife. Trial briefs were submitted to the court by both sides on this privileged communication issue.

On July 23, 1979, a pretrial hearing was conducted in which Viola Cobb, appellant's mother-in-law, testified that after appellant was arrested her daughter, Sherry Zimmerman, returned to Indiana in June 1977. Cobb stated that she had read various letters written by appellant to Sherry without obtaining Sherry's permission or consent. Cobb also testified that the letters were kept in a dresser drawer and that she would read them after Sherry went to work. Cobb identified four letters written by appellant, and stated that she (Cobb) had sent them to her other daughter, Sandra Abner, in Houston.

On cross-examination it was revealed that Cobb had not secured Sherry's permission to send the letters to Houston and in fact sent the letters expecting them to be turned over to the police.

"Q. What was your purpose in sending the letters to Mr. and Mrs. Abner?

"A. I didn't know any other address down here to send the letters to the authorities. That's why I mailed them to my daughter.

"Q. In other words, you wanted these letters to come into the possession of the authorities, I assume by that you mean the police department or the District Attorney's office?

"A. Very, very much."

Cobb specifically referred to State's Exhibit # 2 as being a letter in which appellant "was telling Sherry that he did murder Ramona." Cobb admitted that she was looking for evidence that appellant had committed a crime, but that she never discussed the contents of the letters with Sherry.

At the conclusion of the hearing the trial judge ruled the letters admissible. Prior to trial appellant again filed a motion objecting to the admissibility of the letters and reoffering the evidence presented at the pretrial hearing on this matter. The motion was overruled as well, and the trial court granted appellant "a running objection and the same ruling at each and every time that these [letters] be brought up during the course of the trial, whether it be guilt or innocence or, if we get there,...