Lawrence R. Scroggins, D. Jennings Bryant, Jr., and Barry Barton Kieval, Houston, for appellants.
William S. Warren, Dist. Atty., Center, for the State.
Following a change of venue from Shelby County, appellants McMahon and McCormick were convicted in a joint trial for the offense of capital murder. Each appellant was assessed the death penalty.
The State alleged and proved that appellants murdered Earl Hammond for remuneration. See V.T.C.A., Penal Code, Section 19.03. The sufficiency of the evidence to support the convictions is not challenged.
The deceased's wife, Becky Hammond, and her lover, Tony Bohannon, hired appellants to execute the deceased. Bohannon first offered to employ appellant McMahon in this regard in May, 1976, when they met in a store in Center. McMahon rejected this offer and returned to his home in Houston. McMahon subsequently discussed the matter with appellant McCormick who agreed to assist him in the event an agreement with Bohannon could be reached.
Thereafter, McMahon went to Center on several occasions and discussed the murder contract with Bohannon. On one of those occasions McMahon told Bohannon that he would commit the murder for twenty-five thousand dollars. Bohannon responded that he would have to discuss the terms with another party (Becky Hammond) and then contact him again. No agreement was made at that time.
McMahon met Bohannon again in mid-June of 1976 whereupon the agreement was finally consummated. McMahon told Bohannon that he and another person would commit the murder in exchange for ten thousand dollars or more. Several days later Bohannon talked to McMahon and instructed him to kill the deceased on June 19, 1976. Appellants left Houston on that date and drove to Center. McMahon took a.32 caliber revolver with him.
When they arrived in Center, Bohannon gave the gunmen further instructions and money for the purchase of a.12 gauge shotgun. They bought such a gun in Center. McMahon gave the clerk his operator's license "for identification" and she made a photograph of it. McMahon asked for buckshot. When he was told that they had none, he stated that he wanted shot that would kill. That evening appellants hid in the woods behind the deceased's house. When the deceased returned home from work appellants executed him.
The death was caused by multiple pistol and shotgun wounds. An autopsy revealed no evidence of a struggle on the part of the deceased.
After the offense was committed, appellants met Bohannon at a predetermined location. He gave them between ten and fifteen thousand dollars in cash. This money belonged to the owners of a store where the deceased was manager and where Becky Hammond and Bohannon worked. Instead of making the deposit of the cash, it was delivered to the killers. Appellants returned to Houston the same night and fled to Mississippi the next day. They eventually went to Mobile, Alabama, where they surrendered to officers of the local police department.
Becky Hammond and Tony Bohannon testified about their roles in the offense. Both of them had been convicted for the murder and were serving their time.
A half-brother of Billy McMahon testified that Bobby McCormick and Billy McMahon came to his house in Mobile, Alabama and gave him some $1400 and a.12 gauge shotgun and told him that they had killed a "dude" with it.
Appellants waived extradition on August 9, 1976, and were returned to this State on August 11. McCormick gave a written confession to investigating officers on August 16 while he was in custody in Center. McMahon gave a written confession to officers the next day.
McCormick's first contention is that the trial court erred in ruling that his confession was voluntary and in admitting into evidence the fruits thereof. The question of the voluntariness and admissibility of the written statement, however, is not before us because it was not introduced into evidence. Ex parte Parker, 485 S.W.2d 585 (Tex.Cr.App.1972). See also Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968).
Further, McCormick does not specify what, if any, evidence was obtained as the result of the confession. The record discloses no objections by him on this basis to the evidence introduced. Moreover, McMahon's confession related the events surrounding the crime in a very detailed fashion. Assuming that McCormick's confession was obtained in violation of his constitutional rights, it is apparent that the relevant evidence would have been obtained by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969).
McMahon contends that the trial court erred in ruling that his written confession was voluntary and admissible. He argues that the confession was the product of compulsion and inducement.
In compliance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and Article 38.22, V.A.C.C.P., the court held a hearing outside the presence of the jury to determine whether the confession was voluntary. Evidence introduced at the hearing showed that appellants were transported from Alabama to Center immediately after they were taken into custody on August 11, 1976, by three Center police officers and a Texas Ranger. McMahon was questioned during the trip by Jimmy Matthews, a policeman of Center, but he made no incriminating statements at that time and ...