Texas Attorney General Media Advisory

AUSTIN - Texas Attorney General John Cornyn offers the following information on William Kendrick Burns, who is scheduled to be executed after 6 p.m. on Thursday, April 11, 2002. On Dec. 6, 2001, William Kendrick Burns was sentenced to death for the capital murder of Johnny Lynn Hamlett, in Texarkana, Texas, on March 28, 1981. A summary of the evidence presented at trial follows:

FACTS OF THE CRIME

William Kendrick Burns, his brother Victor, and Danny Ray Harris, were accused of the March 28, 1981, robbery and murder of 18-year-old Johnny Lynn Hamlett in Texarkana, Texas. Hamlett, a high school senior who was working the late shift at an East Texas creosote plant, was found dead in the plant's boiler room with 14 gunshot wounds in his neck, chest and head. The record reflects that Burns previously worked at the plant as a nighttime boiler operator, which is what Hamlett was doing the night he was killed. Burns had been fired from his job there two months prior to the murder. The record also reflects that after he was fired, Burns left the president of the company a note saying that Burns would get even with him or that the president would be sorry.

During their investigation, authorities determined that money and a wallet were taken from Johnny Hamlett. After a tip led to Burns, Burns directed authorities to a discarded coffee can on an uninhabited dirt road. The coffee can contained a drivers license, social security card and school identification card belonging to Hamlett. In addition to the items belonging to Hamlett, the coffee can contained a highway patrol ticket issued to Burns. When Burns was arrested, he was in possession of a wallet later identified as belonging to Hamlett. The wallet, in turn, contained a newspaper clipping concerning the police investigation of Hamlett's murder.

Burns gave a written statement to the police after he was arrested and the statement was read to the jury: "I am giving this statement to Detective Jim Reed who has identified himself as a police officer with the Texarkana, Texas Police Department. This statement is in reference to the shooting of Jimmy Hamlett at the Texarkana Wood Preserving Plant. . .When me and Drew [Danny Ray Harris] and Victor walked down the railroad track to the creosote plant. I was carrying the rifle. I also had the pistol, a 22[,] stuck down my pants. The others didn't know I had the pistol my shirt tail was covering it up. We approached this big tin building that they call the treating room. I peeped through this crack in the tin and I saw this guy throwing wood in the burner. I told the others to be quiet because there was someone in there. Danny told me to shoot with the rifle, he didn't know I had the pistol. He kept saying shoot, so I gave the rifle to him. Danny took the rifle and stepped around on the side were the conveyor belt goes in. There is a big opening there. I took the pistol out and shot through the crack. There were only two bullets there. I took the pistol out and I shot through the crack. There were only two bullets in the pistol and I shot them. Then I heard the rifle start popping off. Sounded like about ten or eleven shots. I heard the guy start hollering. I went around and went in the building. The guy was laying over a machine. You could see the guys [sic] billfold sticking out of his back pocket on the right hand side. Danny reached and got the wallet. We went out the door on the other side between the two buildings. Vic was standing outside by the wood piles. Vic said that the guy probably got paid today. Danny opened up the wallet. It looked like there might be eighty or ninety dollars in the wallet. Vic pulled the money out and started to throw the billfold away and I said that I didn't have a billfold and that I wanted that one. I kept the billfold. I took all the stuff out of the billfold and put it in a coffee can and carried it down around Domino and put it out beside the road. This was on the next day that I did it."

After his arrest, Burns directed police to the location of a .22-caliber Winchester rifle, which was found in the attic of an open carport at Burns' mother's residence. Ballistics testing confirmed that the rifle fired at least seven of the 11 bullets recovered from Hamlett's body. Also, eight .22-caliber spent shell casings were recovered from the murder scene which had been fired from the rifle. In addition, a .22-caliber bullet was found in the pocket of Burns' jacket which he had with him when he was arrested. Two other bullets recovered from Hamlett's body were identified as having not been fired from the rifle. Burns told police a .22-caliber pistol could be found under his mattress but despite police searching the residence, the second weapon was never recovered.

PROCEDURAL HISTORY

On May 11, 1981, William Burns and his brother Victor were jointly indicted for capital murder, whereas Danny Ray Harris was indicted separately. Both brothers were tried, convicted and sentenced to death in September 1981 in a joint trial. The convictions were overturned in 1985 by the Texas Court of Criminal Appeals based on error in the jury charge.

Prior to retrial, the Burns brothers moved for severance and the trial court granted the request in July 1986. That same month, William Burns was retried, convicted and sentenced to death; however, his conviction was later reversed based on improperly excluded mitigating evidence.

In the second retrial, the court's charge instructed the jury that it could find Burns guilty of capital murder either as a principal or as a party. On Aug. 24, 1989, Burns was found guilty and, the following day, was sentenced to death for a third time. The Court of Criminal Appeals affirmed Burns' conviction and sentence in an unpublished opinion, and the United States Supreme Court denied certiorari review on Oct. 4, 1993.

Burns filed his first state writ petition in Dec. 1984. The writ was dismissed in April 1985 because direct appeal was pending. Burns filed his second state habeas application on April 21,1997, and then filed a supplemental petition on July 31, 1998. After the trial court conducted an evidentiary hearing, the Court of Criminal Appeals denied habeas relief in an unpublished order on Jan. 27, 1998.

On Jan. 29, 1999, Burns filed a federal petition for habeas corpus relief and, on Jan. 31, 2000, filed an amended writ petition. Magistrate Judge Caroline Malone (now Craven) issued findings and conclusions that were later adopted by the district court with one exception in its Dec. 18, 2000, order denying habeas relief. The district court denied a certificate of appealability ("COA") on Jan. 31, 2001. On appeal, the United States Court of Appeals for the Fifth Circuit denied COA in an unpublished opinion April 27, 2001, and then denied rehearing on November 9, 2001.

By order dated Dec. 6, 2002, the 202nd Judicial District Court of Bowie County, Texas, scheduled Burns' execution for Thursday, April 11, 2002. On Jan. 8, 2002, Burns petitioned to the United States Supreme Court for certiorari review; however, the request was denied on April 1, 2002.

PRIOR CRIMINAL HISTORY

No evidence of prior criminal convictions was presented to the jury at the punishment phase of trial. However, the jury heard testimony that William Burns and his brother Victor were responsible for the shooting death of Leon Calahan at a nightclub on Feb. 23, 1980, and for the kidnapping of Bryan Keith Sanders that same night, during which both Burns brothers threatened to kill Sanders. According to Sanders, who testified at Burns' retrial, William Burns drove from the nightclub and headed toward a lake, but stopped the car about two miles away in order to kill Sanders by the side of the road. Although a fight ensued outside the car, it was interrupted when a Department of Public Safety vehicle arrived. The D.P.S. trooper and two Texarkana police officers testified for the State regarding the Calahan murder, the retrieval of a .22-caliber revolver from the scene, and the arrest of William and Victor Burns.

ProDeathPenalty.com

Burns gave a written statement to the police after he was arrested and the statement was read to the jury: "I am giving this statement to Detective Jim Reed who has identified himself as a police officer with the Texarkana, Texas Police Department. This statement is in reference to the shooting of Jimmy Hamlett at the Texarkana Wood Preserving Plant. . .When me and Drew [Danny Ray Harris] and Victor walked down the railroad track to the creosote plant. I was carrying the rifle. I also had the pistol, a 22[,] stuck down my pants. The others didn't know I had the pistol my shirt tail was covering it up. We approached this big tin building that they call the treating room. I peeped through this crack in the tin and I saw this guy throwing wood in the burner. I told the others to be quiet because there was someone in there. Danny told me to shoot with the rifle, he didn't know I had the pistol. He kept saying shoot, so I gave the rifle to him. Danny took the rifle and stepped around on the side were the conveyor belt goes in. There is a big opening there. I took the pistol out and shot through the crack. There were only two bullets there. I took the pistol out and I shot through the crack. There were only two bullets in the pistol and I shot them. Then I heard the rifle start popping off. Sounded like about ten or eleven shots. I heard the guy start hollering. I went around and went in the building. The guy was laying over a machine. You could see the guys [sic] billfold sticking out of his back pocket on the right hand side. Danny reached and got the wallet. We went out the door on the other side between the two buildings. Vic was standing outside by the wood piles. Vic said that the guy probably got paid today. Danny opened up the wallet. It looked like there might be eighty or ninety dollars in the wallet. Vic pulled the money out and started to throw the billfold away and I said that I didn't have a billfold and that I wanted that one. I kept the billfold. I took all the stuff out of the billfold and put it in a coffee can and carried it down around Domino and put it out beside the road. This was on the next day that I did it."

After his arrest, Burns directed police to the location of a .22-caliber Winchester rifle, which was found in the attic of an open carport at Burns' mother's residence. Ballistics testing confirmed that the rifle fired at least seven of the 11 bullets recovered from Hamlett's body. Also, eight .22-caliber spent shell casings were recovered from the murder scene which had been fired from the rifle. In addition, a .22-caliber bullet was found in the pocket of Burns' jacket which he had with him when he was arrested. Two other bullets recovered from Hamlett's body were identified as having not been fired from the rifle. Burns told police a .22-caliber pistol could be found under his mattress but despite police searching the residence, the second weapon was never recovered.

UPDATE: William Burns, who gunned down the 18-year-old father of a month-old daughter and robbed him of $110, was executed Thursday night. "I just want to tell my mom that I am sorry I caused her so much pain," Burns said as he was strapped to the death chamber gurney. He expressed love for his family and said he "hurt for the fact that they are going to be hurting. I really hate that and I'm just hoping they can be OK." Burns indicated he was finished with his final statement, then mentioned talking "to the victims," when the lethal drugs began taking effect. He gasped, coughed and gasped again. 10 minutes later, at 6:21 p.m. CDT, he was pronounced dead. Several family members, including his mother, were scheduled to be witnesses, but declined to attend.

Among the victim's witnesses were Johnny Lynn Hamlett's widow, Anita, and daughter, who initially declined to speak to reporters after the execution but later changed their minds. The execution of Burns, 43, for the slaying of Hamlett in Texarkana 21 years ago was the 2nd in as many nights in Texas. "He's been dead longer than he was alive, at this point," Hamlett's widow said about her husband in a story in the Texarkana Gazette this week. "I look back and it was like a wonderful dream that ended in a monstrous nightmare."

It was just before midnight, March 27, 1981, when brothers William and Victor Burns, accompanied by a third man, Danny Harris, showed up at Texarkana Wood Preserving, a creosote plant where William Burns was fired from two months earlier and promised revenge. Hamlett, who had worked there for about three months, was alone pulling a double shift in the boiler room because another employee couldn't make it to work that night. When his body was found, it had 14 bullet wounds from .22-caliber weapons. His wallet, which contained $110, was among items missing. When the Burns brothers were arrested, William Burns was carrying the victim's wallet. He also led authorities to a coffee can he had thrown away on a remote dirt road. Among items inside the can were Hamlett's driver's license, school ID card and a traffic ticket issued to Burns.

The brothers already were known to authorities. They were free on bond and awaiting trial for a February 1980 slaying and an abduction, James Elliott, the assistant district attorney in Bowie County who prosecuted the case, said this week. "They felt they were bad people who just owned the town and could do what they bloody well pleased," Elliott said. "And for a while, they did." Both Burns and his brother were convicted in 1981 of capital murder and sentenced to death. Charges against Harris eventually were dropped. 5 years later, an appeals court threw out the convictions because of improper jury instructions. William Burns was tried again and sentenced to death. His brother pleaded guilty to a lesser murder charge and received a life term. He remains behind bars, was rejected for parole last year and can make another parole request next year. In 1989, Burns' capital murder conviction was overturned again. He was tried a 3rd time, convicted and condemned. "The main thing, for the good people in this world, is simply don't quit," said Elliott, who has pursued the murder case for the more than 2-decade career he's had as a prosecutor. Execution, he said, "ensures that he'll (Burns) never do it again." Elliott said Burns, who declined to speak with reporters in recent weeks, told a parole board representative investigating a clemency request that the slaying was the result of being "in the wrong place at the wrong time." "Sometimes you see guys undergo a genuine change in prison," Elliott said. "Burns is like a rattlesnake in a jar after 20 years. He's the same thing. He hasn't changed."

Houston Chronicle (April 11, 2002)

"Before Being Executed, Killer Tells His Mom He's Sorry." (Associated Press)

HUNTSVILLE -- William Burns, who gunned down the 18-year-old father of a month-old daughter and robbed him of $110, was executed Thursday night. "I just want to tell my mom that I am sorry I caused her so much pain," Burns said as he was strapped to the death chamber gurney. He expressed love for his family and said he "hurt for the fact that they are going to be hurting. I really hate that and I'm just hoping they can be OK." Burns indicated he was finished with his final statement, then mentioned talking "to the victims," when the lethal drugs began taking effect. He gasped, coughed and gasped again. Ten minutes later, at 6:21 p.m. CDT, he was pronounced dead.

Several family members, including his mother, were scheduled to be witnesses, but declined to attend. Among the victim's witnesses were Johnny Lynn Hamlett's widow, Anita, and daughter, who initially declined to speak after the execution but later changed their minds.

The execution of Burns, 43, for the slaying of Hamlett in Texarkana 21 years ago was the second in as many nights in Texas. "He's been dead longer than he was alive, at this point," Hamlett's widow said about her husband in a story in the Texarkana Gazette this week. "I look back and it was like a wonderful dream that ended in a monstrous nightmare."

Burns is the eighth Texas inmate to receive lethal injection this year. On Wednesday night, Jose Santellan was put to death for fatally shooting his former girlfriend outside the Fredericksburg hospital where she worked.

It was just before midnight, March 27, 1981, when brothers William and Victor Burns, accompanied by a third man, Danny Harris, showed up at Texarkana Wood Preserving, a creosote plant that William Burns was fired from two months earlier. He had promised revenge. Hamlett, who had worked there for about three months, was alone pulling a double shift in the boiler room because another employee couldn't make it to work that night. When his body was found, it had 14 bullet wounds from .22-caliber weapons. His wallet, which contained $110, was among items missing.

When the Burns brothers were arrested, William Burns was carrying the victim's wallet. He also led authorities to a coffee can he had thrown away on a remote dirt road. Among items inside the can were Hamlett's driver's license, school ID card and a traffic ticket issued to Burns. The brothers already were known to authorities. They were free on bond and awaiting trial for a February 1980 slaying and an abduction, James Elliott, the assistant district attorney in Bowie County who prosecuted the case, said this week. "They felt they were bad people who just owned the town and could do what they bloody well pleased. And for a while, they did," Elliott said. "Sometimes you see guys undergo a genuine change in prison. Burns is like a rattlesnake in a jar after 20 years. He's the same thing. He hasn't changed."

Both Burns and his brother were convicted in 1981 of capital murder and sentenced to death. Five years later, an appeals court threw out the convictions because of improper jury instructions. Charges against Harris eventually were dropped.

William Burns was tried again and sentenced to death. His brother pleaded guilty to a lesser murder charge and received a life term. He remains behind bars. He was rejected for parole last year and can make another parole request next year. Two more executions are set for later this month.

Texas Execution Information Center by David Carson.

William Kendrick Burns, 43, was executed by lethal injection on 11 April in Huntsville, Texas for the robbery and murder of a worker at a plant.

In March 1981, William Burns, 22, his brother, Victor Burns, 17, and Danny Harris, 20, went to an East Texas wood preserving plant where William used to work. William was carrying a .22-caliber Winchester rifle and a .22-caliber pistol, which was hidden in his pants. It was almost midnight. As they approached a large tin building, William Burns looked through a crack and saw Johnny Lynn Hamlett, 18, working inside. He then gave the rifle to Harris and drew his pistol. Burns fired two shots through the crack at Hamlett. Harris fired a large number of shots from the rifle through a different opening. Then Burns and Harris went inside and took Hamlett's billfold. They came outside and divided the money -- about $110 -- with Victor Burns, who remained outside the building. William Burns also decided to keep the billfold. The next day, he emptied the contents of the billfold into a coffee can and threw the can onto the side of a road.

Acting on a tip, authorities investigated William Burns. He directed them to the discarded coffee can containing Hamlett's drivers license and other personal papers. The coffee can also contained a traffic ticket issued to Burns. When Burns was arrested, he was still carrying Hamlett's billfold, which contained a newspaper clipping about the murder. Burns also directed police to the rifle, which was confirmed to have fired at least seven of the eleven rounds recovered from Hamlett's body. Testing also showed that two of the .22-caliber bullets recovered from the body were not fired by the Winchester rifle. Burns told police where to find the pistol he used, but that weapon was never recovered.

William and Victor Burns were also believed to be responsible for an incident in February 1980 in which Leon Calahan was shot to death and Bryan Keith Sanders was abducted for the purpose of being murdered. A Department of Public Safety trooper interrupted the Sanders abduction in progress, and William and Victor Burns were arrested. They were free on bond and awaiting trial when they killed and robbed Johnny Hamlett.

William Burns was fired from the wood processing plant two months before Hamlett's murder and Hamlett had the same job formerly held by Burns. After he was fired, Burns left the president of the company a note saying that he would be sorry. William and Victor Burns were convicted of capital murder and sentenced to death in September 1981 in a joint trial. Danny Ray Harris was indicted separately, and charges against him were eventually dropped.

In 1985, the Texas Court of Criminal Appeals overturned the Burns brothers' convictions because of a jury instruction error. On retrial, Victor Renay Burns pled guilty to non-capital murder and was sentenced to life in prison. William Burns was convicted of capital murder and sentenced to death again in July 1986. That conviction and sentence were later overturned because of improperly excluded mitigating evidence.

William Burns was tried for a third time and was convicted and sentenced to death in August 1989. The Texas Court of Criminal Appeals upheld the third conviction in 1993, and all of Burns' subsequent appeals in state and federal court were denied.

Burns did not speak to reporters prior to his execution, but he told a case worker investigating his clemency request that the slaying was the result of being "in the wrong place at the wrong time." "I just want to tell my Mom that I am sorry that I caused her so much pain," Burns said in his final statement. He said that he loved his family, and "I hurt for the fact that they are going to be hurting. I really hate that; and that I'm hoping they are going to be O.K." William Burns was pronounced dead at 6:21 p.m.

Victor Burns is still behind bars as of this writing. He is eligible for parole, but his parole request was denied last year. A Texas prisoner named Danny Ray Harris was executed in 1993. According to the Texas Department of Criminal Justice's web site, that is the same Danny Ray Harris who was involved in the Hamlett murder. However, the Harris who was executed in 1993 was sent to death row in February 1980, and thus would have been in prison at the time of Hamlett's murder.

Deathrow.at

William Burns Execution date: 04/11/2002

I am writing to you, Governor Perry, to ask you stop your state's execution of William K. Burns. Mr. Burns is scheduled to die next Thursday, 4/11/02.

The state of Texas require a showing of "future dangerousness" to impose the death sentence. No evidence to this point was presented at Mr. Burns sentencing hearing. Quite, the opposite, Mr. Burns has no criminal record prior to this offense. Your state's own laws have been ignored in this case. Governor Perry, you must intervene and bring justice to this case!

Former Attorney General of the United States Janet Reno, as well as myriads of scholars, can find no evidence that the death penalty deters capital crimes. In fact, the warden of the famous Sing Sing prison believes that the death penalty exacerbates the violence in his facility by setting an example of cold-blooded killing. Recent studies show that the largest increase in capital crimes is in your own state of Texas, the state which executes the most people. As for vengeance, that is the Lord's, not the government's.

Please, Governor Perry, stop this unjust killing of William K. Burns. If this execution goes forward, look around this country for the black armbands worn, and the church bells tolled, in protest of your inaction. Thank you.

William Burns, # 000692
Polunsky Unit
3872 FM 350 South
Livingston, Texas 77351 USA

National Coalition to Abolish the Death Penalty - Execution Alert

William Burns - Scheduled Execution Date and Time: 4/11/02 7:00 PM EST.

William Burns is scheduled to be executed on April 11 for the 1981 murder of Johnny Hamlett, an 18-year-old high school student. Burns is one of 13 scheduled executions in the state of Texas for 2002, with Texas already having executed six this year.

Texas law requires prosecutors to show a defendant is certain to be a continuing threat to the community in order to impose a death sentence. Although Burns is certainly guilty of the crime, Texas took no steps in trial to prove his future dangerousness. No psychiatric or psychological testimony was presented during trial. Furthermore, Burns had no prior criminal history, which the state would have undoubtedly used during the sentencing phase of the trial. The only testimony used to prove future dangerousness was the testimony of two police officers, who stated they knew of Burns’ bad reputation in the community. Evidence of this kind is subjective at best.

William Burns’ death sentence relies on an assumed reputation. Please write to the state of Texas to protest his execution and all others based on this type of profiling.

Burns v. State, 703 S.W.2d 649 (Tex.Cr.App. 1985) (Direct Appeal).

Appellants were found guilty of capital murder. The jury answered the special issues under Art. 37.071(b), V.A.C.C.P affirmatively, whereupon the court assessed the mandatory penalty of death. Appellants raise sixteen grounds of error. Because we find merit in appellants' challenge to the jury charge we address only that ground of error. Appellants argue that the trial court erred in refusing to instruct the jury that one witness, Danny Ray Harris, was an accomplice as a matter of law. The trial court instead presented this issue to the jury as one of fact to be decided during deliberations. Appellants, along with Harris, were indicted for capital murder. Appellants were tried jointly and that trial is the subject of this appeal.

Johnny Lynn Hamlett was shot to death in the early morning hours of March 28, 1981, while working a night shift at a wood preserving plant in Texarkana. The police, acting pursuant to an anonymous tip, apprehended Danny Ray Harris. Harris gave the police a statement implicating William Burns and Victor Burns, appellants in the instant case. The police were also able to procure statements from both appellants. Although these statements are somewhat in conflict they implicate both appellants in the homicide. The statements also led to the discovery of certain physical evidence connected with the offense.

The evidence adduced at the guilt/innocence stage of the trial consisted primarily of the statements made by applicants, the physical evidence those statements led to and the testimony of co-indictee, Harris. In addition, the State called several witnesses whose testimony was limited to describing the deceased's character and an expert doctor to testify as to cause of death. However, only the statements and the accomplice testimony bore directly on guilt.

In the charge presented to the jury the trial court included a paragraph submitting the issue of whether Harris was an accomplice as a question of fact to be decided during deliberations. Specifically, the paragraph instructed, "Now, if you find and believe from the evidence that DANNY R. HARRIS is an accomplice, you cannot convict either of the Defendants upon his testimony alone ..." Also included in the charge was a paragraph submitting the issue of the voluntariness of the statements given by appellants to the police. Appellants objected to the paragraph submitted on the accomplice issue. Further, appellants' requested jury charge that was filed with the trial court included a paragraph instructing the jury that Harris was an accomplice as a matter of law. When there exists no doubt as to the character of a witness as an accomplice as a matter of law the court is under a duty to so instruct the jury. The failure to do so may constitute reversible error. Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969. Harris is clearly an accomplice as a matter of law. Therefore, the jury should have been instructed that his testimony required corroborating evidence tending to connect appellants with the offense in order to be sufficient to sustain a conviction. The only other evidence of guilt presented at trial were the out-of-court statements made by appellants and the physical evidence discovered as a result of those statements. These statements might have presented sufficient corroboration to satisfy Art. 38.14. However, the jury charge allowed the jury to make a finding that the statements were involuntary. If the jury found them involuntary, they were instructed that they could not consider the statements for any purpose. It necessarily follows that they could not then be used to corroborate the accomplice testimony. Thus, we are presented with a situation where the jury correctly following the jury charge as given, quite plausibly could have improperly convicted appellants because they could have found the statements involuntary and yet convicted appellants on Harris's testimony alone. The conviction would then be based on the erroneous finding that Harris was not an accomplice and that, therefore as per the charge, his testimony needed no corroboration in order to be sufficient to sustain a conviction. Accordingly, the judgment of the trial court is reversed and the case is remanded for new trial.

Burns v. State, 761 S.W.2d 353 (Tex.Cr.App. 1988) (Direct Appeal II).

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. [FN1] According to the autopsy, Hamlett died "of multiple gunshot wounds of the neck, chest and head."

FN1. Expert testimony established Hamlett sustained fourteen gunshot wounds. Eight .22 caliber "hulls" shown positively to have been fired from the Winchester rifle were found at the scene. Eleven bullets were recovered from the body. Ballistics tests indicated seven of these could have been fired from the Winchester rifle. Two more were definitely not fired from the Winchester, but could have come from a pistol. Origin of the last two bullets could not be determined to any degree.

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.

Immediately before the punishment charge was read, appellant made the following bill of exceptions outside the jury's presence: "Q Were you and your husband together all the time that you were married? A We separated for a few years, but we still communicated with each other. Q Your Honor, had we been permitted to have that question answered, I would have followed it up with questions to develop it further. Can I do that at this time? THE COURT: No, that's not a part of that. I sustained the objection to one single question as being immaterial and irrelevant to any issue before the Court. You can make your bill on those questions, only. Q The other question is as follows, Mrs. Burns. What types of jobs did [appellant] have after he finished school? A He worked at St. Michael's Hospital, he worked over to the wood preserving plant, and he worked at Central Christian Church. Q Is that all? Is that all? A That's all I can think of."

We conclude that the trial court in the instant cause abused that discretion in failing to admit Mrs. Burns' answers. It is true that the mitigating impact of those answers would not appear to be compelling in the abstract. On the other hand, though this Court's precedents dictate a finding that the evidence is legally sufficient to support the jury's reply to special issue two, neither do we believe the State's evidence in support of that verdict to be particularly compelling. We cannot say that, on balance, the jury could not have found appellant's proffered evidence of some, perhaps even critical significance. Consistent with Lockett, supra, and its progeny, and particularly in light of the limited role this Court has assumed in reviewing appropriateness of death verdicts in capital cases, we cannot tolerate the risk that appellant has been sentenced to death in spite of factors a reasonable jury could find justify the less severe penalty of life imprisonment.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for new trial.