*1 7H 595, Frederick, Corp. v. Oil (Tex.1981). 81(c) 90(a) mandatory. are
Rules liberty to appeals
The courts of are not at
disregard sa- them. These serve the rules
lutary unnecessary purpose eliminating
delay expense appellate process. con-
Although require the rules do not
template advisory opinions on issues case, disposition final
essential rules do mandate full consideration issues raised to move the case far
all
possible disposition. final toward appeals’ case court of decision this 81(c) 90(a). Ac-
conflicts with rules
cordingly, majority grants of the Court error,
petitioners’ application for writ
and, hearing argument, re- without oral judgment appeals of the court
verses
and remands the case to that court with 81(c) and comply
instructions to with rules
90(a). BEETS,
Betty Appellant, Lou Texas, Appellee.
The STATE
No. 69583. Texas, Appeals of Criminal
Court
En Banc. 12,
Nov. 1987. 17,
Rehearing Granted Feb. 1988. Rehearing Sept.
On 1988.
Rehearing Denied Jan. *4 Hargrave, Ray Andrews,
Gilbert M. E. Athens, appellant. Athens,
Billy Bandy, M. Atty., Dist. Rob- Huttash, ert Atty., State’s Matthew W. Paul, Asst., Dally, Sp. and Carl E.F. Asst. Austin, Atty., Pros. for the State. OPINION TEAGUE, Judge. Beets,
Betty
appellant,
Lou
con-
committing
by jury
victed
of
offense
Beets,
capital
of
of Jimmy
murder
Don
who
was then
lawful
It
her
husband.
was al-
leged
in the indictment
there,
“did
knowingly
then and
and inten-
tionally
the death
an individual,
of
cause[d]
Jimmy
Beets,
shooting
namely,
Don
him
firearm,
with
and the
said
prom-
committed for remuneration
remuneration,
money
namely:
ise of
from
proceeds
of
benefits from
retirement
Jimmy
of
Don
employment
Beets with
Dallas,
policies
City
on the
insurance
Jimmy
[appel-
said
Don Beets in
which
beneficiary, and the
is the named
es-
lant]
Jimmy
tate of
Don Beets.”1 After the
the offense
jury
appellant guilty
found
together
although they
previously
had
1.
died
lived
The record reflects that Beets
intestate.
death,
post.
period
See
the time
At
of his
Beets and
time.
unknown
year,
been
than one
had
married less
murder,
alleged in
capital
“as
the indict-
presented
the evidence
at
was clear from
ment”,2 it thereafter
answered
the affir-
preju
hearing
the motion that such a
special
mative
issues that were submit-
in the
against
[appellant]
dice existed
37.071,
pursuant
ted to it
to Art.
V.A.C.
precluded;
trial
community that a fair
Neither
C.P.3
nor the State
(6)
if it
for the
Alternatively,
was not error
presented
testimony or evidence at the
grant
change
at
Trial Court to
venue
punishment stage
trial;
the State
hearing, it
error for the
the time of the
relying upon the evidence that had been
Trial
conduct the voir dire
Court to
stage
at the
presented
guilt
trial
did; (7) It
for the
manner
was error
for the jury’s
spe-
basis
answers to the
grant
change
of venue
Trial
not to
Court
pun-
cial issues
were submitted at'fhe
dire as the evidence
at the end of voir
stage
Thereafter,
ishment
the trial.
poten
gleaned
the examination of the
judge
appellant’s punish-
trial
assessed the
jurors
supported the claim
tial
further
ment at death. We reverse.
a fair
could not be
the defendant that
trial
presents
nine
Appellant
to us for review
(8) It was
County;
heard in Henderson
error,”
comports
(9) “points of
with
not to
the defen
grant
error for the Court
Appellate Proce
new Texas Rules of
testimony
Mistrial
dant’s
after
Motion
dure,
September
How
effective
dis
revealed that the witnesses had been
ever, given
appeal
the fact that notice of
cussing
testimony
each other
their
prior
September
in this
occurred
cause
(9)
trial;
prosecution’s
ac
during the
1986, her
should
contentions
have been
approximately
90 wit
subpoenaing
tions
“grounds
phrased as
of error” and not
only
using
deprived
defen
nesses while
Therefore,
re
“points of error.”
we will
*5
right
of
to effective counsel.”
dant
her
“grounds
of error”
view the contentions
appel-
only
decide
We will
review and
“points
cf.
not as
of error.” See and
and
1, 2, and
grounds of error
lant’s
numbered
(Tex.Cr.
Burdine v.
4.
1986).
“(1)
as follows:
App.,
They are
of
is deficient in
first count
the indictment
suffi
appellant challenges the
Because
allege every
it does
constituent
that
not
grounds
of
ciency
evidence
her
of the
offense;
(2)
No evidence
element
ante, 2 and
see
error numbered
charge
to
mur
offered
sustain the
of
sufficiency of
challenge to the
because a
remuneration;
(3) The
court
der for
trial
by this
must be considered
evidence
admitting
that
the ac
erred
evidence
for
reversed
if the convictionis
Court even
had shot and killed another former
cused
see Sel
reasons,
reason
an unrelated
husband,
Barker; (4)
Doyle
There
Wayne
(Tex.Cr.App.
man
Johnny deputy sheriff might sion benefits that Beets have accu- County, approx- Henderson testified that at Appellant profess mulated. did not to Bur- 7th, imately August 8:30 o’clocka.m. on he any specific knowledge ris that she had Hugh Woody, G. De the Fire Chief coverage on Beets’ life either insurance Payne Spring Department, Fire went to any pension might benefits Beets have ac- *6 if appellant’s residence to see Beets cumulated. Burris told her that he did not possibly returned home since he had had check the matter and know but would into reported missing. Appellant told been report to her. Burris did check and back fishing Marr that her husband “had went learned that Beets’s life was insured with night the lake and ‘had been being before ap- the total amount of insurance [on having boat’], and hadn’t $110,000. trouble with his proximately He also learned Saturday morning.” Marr told appellant returned that be entitled to receive $1,200 appellant speed approximately that as boat races were each month taking place day, pension ap- on the lake and Beets’ Burris advised that benefits. pellant findings, of his and also told her because of the numerous boats that would body of his were 5. Also found in the boat were a medicine bottle fore the skeletal remains found, jack- containing nitroglycerine appellant tablets and a life sold the boat to Martha and trial, During tablets from the bottle were found Michael J. Miller. Martha tes- et. Several in the bottom of boat. tified to the facts of the sale of the boat appellant The record to her and her husband. house, appellant that Beets owned a which 6. later told Smith that the reason also reflects The Ap- telephone apparently separate property. immediately his she did not answer the was also yard pellant and did she Beets had tried to was because she was outside in the testified that disappeared. ring. not sell the house before Beets hear mysteriously Apparently, after house burned. issued, through testamentary appellant, separate be Beets’ letters The boat was established to 7. counsel, unsuccessfully attempted on to recover property, having acquired before he and been 24, 1984, policy house July that insured the appellant almost a a fire insurance married. On missing, year reported be- for fire loss. after Beets Pursuant to the exe- appeal in this Court. according City Attorney of Dal- warrant, body physical had not been re- las that because Beets’ cution of the search year Doyle there would be a seven recovered of Beets and mains of the bodies in- any payment of waiting period before Barker, Wayne another former husband proceeds could occur.8 surance loca- appellant’s, found at different were appellant premises on the where tions Rose, investigator Rick Beets living at the time and Beets were County Department, Henderson Sheriffs remains were found disappeared.9 Beets’ directly that he became involved testified well,”10 “wishing which was years after Beets’ had in the this case almost two buried in the disappeared. yard His direct of the residence. involvement located in the front after received informa- case occurred found buried under “[he] Barker’s remains were infor- tion from a confidential backyard [credible] storage shed located gave may mant facts that there who [him] recovered Two bullets were residence. questions [concerning the possible ... The remains of the from Beets’ remains. Jimmy Don Beets.” cause of the death] transported to the Dallas were two bodies spring This occurred sometime Laboratory they where Forensic Science time, body At that neither Beets’ being subsequently were identified body had physical nor the remains of of Beets and Barker. remains of the bodies found. As a result of Rose’s investi- been pistol pre- had A item been Collector’s gation, an arrest warrant for he secured appellant’s from the resi- viously recovered charged her with the that did not dence as a result of an incident murder of Beets. Rose had her arrested directly appellant and was not involve the 8, the Mans- on June 1985 members of also turned to the cause at Bar was related Department, turned her field Police who laboratory. Dallas over to the Rose, her into the over to who booked Branson, II, Franklin “Robbie” Robert County validity Jail. The Henderson sons, herein- who we will appellant’s one of warrant, is not in the record arrest which Robbie, refer to as testified. after challenged in the trial appeal, was not jury instructed the judge trial later challenged appeal on in this court nor is it law, was, an accom- as a matter of Robbie testified that after Court. Rose Robbie, killing. Beets’ plice witness “an incarcerated he went and secured felony probation for com- then on who was evidentiary search warrant” to search occurred mitting burglary that had premises. The appellant’s residence and its is unrelated to County, which warrant, Navarro validity of the search which case, living ap- that he was record, challenged testified also not in the 6, 1983, August on when challenged pellant on and Beets nor is it the trial court On June during trial in that cause. tion for new was adduced the trial 8.Evidence later, days was arrested years two after approximately two established *7 8, 1985, County presiding judge of the attorney, applied June the appellant, through for the County an “Order issued Court of Henderson testamentary. At the same and received letters time, trial, issue of time of Protection." At the attorney, through applied to appellant, estate, ultimately Beets’ 5, administer who would legally March declared dead. On have Beets ultimately financially ben- as well as who would 1985, approximately months before the three estate, By been resolved. had not efit from his body found and of Beets’ were skeletal remains records, intestate. probate Beets died by legally dead Beets was declared identified. the County presiding judge Court of of the jury made aware was not then 9. The County. Appellant made the Henderson testimony regarding Barker’s offense extraneous proceed- estate. These of Beets' administratix ings appear proper evi- came into disappearance and death. This provisions of Sec- under the hearing judge trial conducted dence after the section also Probate Code. That tion 72 of the such testimo- appellant’s motion to exclude on estate to the provides "Distribution of the post. See ny, he overruled. which not be made persons thereto shall entitled expi- representative personal until after sup- objects “wishing is one of those (3) A well” years date such from the of three ration conferring magically However, capable posed to be [testamentary] granted.” are letters Compact Edi- wishes. The only of one’s attorney fulfillment April for Beets’ on Dictionary English at 3796. Beets, child, mo- tion filed a James Donald natural Oxford appellant falsely reported missing; drop Beets where he body Beets’ into the appellant going lake, told him adrift, that she was and then set the boat so that it evening; to kill Beets that then Robbie would look accidentally like Beets had suggestion ap- left the residence at Appellant responded: drowned. “Yes.” pellant, “she said she because wanted me Shirley to her went mother’s residence but to leave and she didn’t want me to be got appellant after she there informed her him,” around she when shot and killed “everything was taken care of and approximately remained absent two home,” go that I could back which she did. hours, after which he returned to the resi- Shirley testified that several weeks later dence when he his learned that mother had she returned to her mother’s residence actually during shot and killed Beets by appellant when she was informed appel- absence. Robbie thereafter assisted my “her and brother Robbie had buried in placing body “wishing lant Beets’ Jimmy wishing Don Beets well.” well”, he previously and Beets had Shirley appellant never testified that had day, constructed. The next after admitted to her that she had killed Beets put pills in some of Beets’ heart the boat any policies order to recover on insurance that Beets owned and after Robbie took the any pension or to receive benefits that boat, propeller off the Robbie took the boat might Beets have had. lake, it, part to the main abandoned trial, during At this time the trial and was soon met near that judge hearing appel- conducted a on the location. The two then returned home. lant’s motion to exclude extraneous cross-examination, During appellant’s testimony going offense to the death of attorney several times accused Robbie Barker, judge over- after which trial Beets, being the actual killer of which Rob- motion, permitting ruled the thus the State par- denied. admitted that his bie Robbie testimony going present to then to the dis- burying ticipation with Beet’s See, appearance and death of Barker. body “wishing preyed had well” however, post. However, except telling his conscience. his ex-common-law wife who did not testi- jury, Shirley testi- presence In the fy, subject silent on the October, 1981, Robbie remained years almost two fied that years. for almost Robbie testified that two disappeared, her mother before Beets when he silent he wanted “to remained because living togeth- and Barker were married and However, protect his mother.” after his er, “sitting she and her mother were while arrested, mother Robbie commenced campfire”, her mother told her around a authorities, cooperating pro- “to with Wayne going Doyle to kill that “she was testified that tect his Robbie put up backfside].” Barker” “she couldn’t with because Barker, only seen him he knew of but had beating him her and that she anymore of time, did not live with his one and that he anymore.” him around Her didn’t want she and Barker mother and Barker when told her that “the trailer mother also together. married and lived were just she in his name and [house] get they if were to co-signer on it and that appellant’s Stegner, one of Shirley divorce, up that he would end Robbie, daughters sister of also testi- and a or 4 Approximately 3 trailer [house].” Shirley testified prosecution. fied for the residence, Shirley later, Shirley’s days at telephoned her on the that her mother conversation, had another and her mother August requested that night of 6th and “it mother told her that during which her residence, which Shir- Shirley come to her she had done what *8 all over with and telephone During the conversa- ley did. [Shirley] told to do ... She she intended “if tion, her mother she had Shirley asked sleep went that she waited until before,” [Barker] we had talked about done what gun covered it got the and then she and appellant pre- related to which conversation trigger and pulled the pillow and with a going telling Shirley that she was viously pillow trigger, boat, pulled the when she Beets, body in the put Beets’ kill hesi- firing pin, so she lake, with into the out [interfered] have Robbie take boat minute, Petty Wayne laboratory. sent to the testified for a afraid that been tated gun up, and those going to wake she cocked he identified the bones as of that again fired and him in the head.” and shot Petty Barker’s testified Beets and bodies. Thereafter, in Shirley assisted her mother cause of death of Beets was “the that the drug him disposing body: of Barker’s “We lo- gunshot in the skull and wound defect put trailer outside to the from the back bullets, in but one cating of not one two dug already that him in the hole had been region skull other in the of the and the Shirley barbeque pit].” order to build [in region my of the bones of the trunk. day testified that next further “the [she one, two, if not opinion, death was due to bought and her went and some mother] ... in the head and gunshot wounds One over the patio” cinder blocks [built] in the trunk Two bullets one somewhere.” body had been hole which Barker’s recovered from the skeletal remains were Subsequently, large storage placed. body; one skull area of of Beets’ from the patio. During replaced the cross-ex- shed body one trunk area of from the amination, Shirley although testified that Petty body.11 also testified that charged she had also been with the found Beets’ skeletal remains bullets $1,000,000 her had of Barker and bail bond weap- same could have been fired from the $5,000 been reduced to she had not been on,, positively testify he was unable to promised anything by prosecution the Collector’s they that were fired from against her exchange testimony for her Three pistol. bullets were recovered item point pause to out that in the mother. We body. from the skeletal remains of Barker’s Shirley that her conversations had with Petty that testified the cause Barker’s death, regarding mother Barker’s other “gunshot wounds.” death was house, the reference to the trailer than Jones, a em- Allen firearms examiner she Shirley did not admit to that County Forensic Sci- ployed Dallas going gain. kill Barker for financial Laboratory, he testified that examined ence is also no There evidence whatsoever bullets, after which he the recovered might that reflect or indicate that record opinion they were fired formed appellant financially from Bark- benefited type weapon, a .38 calibre which was death. There is also evidence in the er’s no pistol. item the calibre Collector’s might record that reflect or indicate however, Jones, positively was unable to house to re- the trailer in his appel- testify opinion the trailer the bullets ferred and house which item and Beets resided Beets was fired came from the Collector’s lant when were missing reported are and the same pistol previously one that had been recovered trailer house. appellant’s See ante. from the residence. testify. Rose Rick Rose was recalled to Collins, a niece of Beets who Jackie recovery the skeletal or testified to Life Insur- employee Penney also an J.C. Barker’s physical remains Beets and personal- Beets’ Company, testified to ance were bodies. See ante. The remains cancelling policy ly insurance transported to the Dallas Forensic Science $10,000 19, 1983. The May amount they Laboratory subsequently where were apparently been sent application, which had physical being the identified as skeletal Penney to either monthly J.C. bill with a of Beets Barker’s bodies. remains them, appellant or had Beets or to both knowledge. out without Beets’ filled Petty, been Chief Medical Dr. Charles S. ap- attracted Collins’ attention What Director Dallas Coun- Examiner and address on the fact that the plication was Laboratory, testified to ty Science Forensic was that application was not Beets’ but per- he “post-mortem autopsy” that Ap- daughters. appellant’s had skeletal remains that of another formed on the to me from Beets' remains were Randall L. who had been Callison, presented 11. Dr. bodily during that he were the lifetime, testified Medical Examiners dentist the Dallas County skeletal remains made a Beets’ Don Beets.” comparison remains of Jimmy "the that he had and in his opinion x-rays *9 pellant beneficiary the named on the she remarried had the settlement been fi- testified, application. appellant $15,852.59 When she nalized. Whether the referred deny did not she out that had filled policies insurance is not reflected in application, signed ap- Beets’ name to the appeal. previously point- the record on As monthly plication, and returned it with the out, prohibits ed our Probate Code distribu- payment. missing person’s tion of a estate until three years from the date the letters testamenta- Webb, Peggy employee of Sherrills an ry expired. issued have City of Dallas who a “Benefits Personnel”, Supervisor testified with that Elrich, Jr., Manager E. Stewart of the policy Beets had a life insurance with the Group Department Republic Life Claims $86,000, City in the amount Group Company, National Life Insurance beneficiary poli- the named company testified that his had issued a life cy. policy insurance on Beets’ life George Chaney, documents examiner $23,428. policy amount of also con- years by employed who had been for 23 provision an accidental death in the tained presently employed Service and was Secret $20,000. time, presum- At some amount Associates, by Leroy Lewis and doc- James ably after March the letters when Dallas, uments examiners located in testi- issued, testamentary attorney an wrote signature Penney’s fied that the on the J.C. appellant stating company on behalf Beets”, application, signed by “J.D. application had made for adminis- “an been appellant, signature “J.D. tration of an estate.” No action was ever Beets,” policy to be that authorized the attorney’s taken on the letter. cancelled, signature. actual was Beets’ during At this time the trial the State signature on Chaney also testified that the Billy Bandy, prosecuting rested. Hon. of sale for the certificate of transfer or bill thereafter stated into the attorney, soon boat, Beets”, occurred “J.D. which he rested when he did because record that Mitchells, when the boat was sold to the mood strikes always “I until it’s—the wait This, however, signed by appellant. things way I me and then rest ... [T]he 24, 1984, year July almost one occurred I went, just I shut it decided down [when disappeared. appel- after Beets had When then stated: Counsel did].” testified, dispute fact she did not lant going good, huh?” “You think it’s Mitchells had sold the boat to the that she verbally respond to counsel’s Bandy did not signed dispute that she Beets’ nor did she record, question. From we remarks of sale. name bill when infer that when the State rested can Hast, City Jerry employee an caught appellant’s may have it did that this Dallas, “Administrator of the who was the surprise.11A The careful trial counsel Fund”, testi- and Fire Pension Dallas Police however, appellant’s coun- informed judge, concerning application an benefits fied give him time he whatever sel that attorney on be- filed that had been proceeding, but coun- might need before he occurred after the appellant, half “No, I don’t need the offer: sel declined Hast tes- testamentary had issued. letters nine in the I’ll be here at anymore time. “The Pension Board” voted tified that prom- appear did morning”, and counsel approve a settlement with ised. go- settlement was This pension benefits. Lane, Faye anoth- appellant first had 10, 1985. Hast on June to be finalized testify. Lane testified daughters, her er of was can- that the settlement also testified men- Shirley nor ever Robbie that neither learned of the Board after members celled admitted to their mother tioned to her that mur- arrested for appellant had been Beets or Barker had killed them that she have appellant would dering Beets. The they had after burying them participated $15,852.59 monthly benefit plus received Lane also testified killed. or until been of her life for the rest of $790.42 ground ante. appellant's of error marked 11 A. See *10 gone. She
“everything replied: that told where he had ever “[H]e [Robbie has] just he left.” her, gone was ... believed.” [she] Appellant Bone, herself testified. In reference Raymond appellant who lived with Beets, killing her former husband disappeared, Beets’ Bone after testified. lawfully to had married whom she been agreement testified that he entered into an appellant’s testimony year, less than one officials, particu- law in with enforcement contrary was to what Robbie had testified Rose, keep that posted lar he them would Robbie, in that she testified that it and was appel- times as at all to the whereabouts of her, Beets, not had shot and and who killed lant, and he to did. It is obvious us from merely dispos- she assisted Robbie adduced, testimony that was as it must Appellant “I body. of his testified: jury, appellant have been to the that before Jimmy could I loved never hurt Don ... arrested Bone had notified authori- good Jimmy Nobody’s ever Don. been ties where she then be located. The re- to me he was.” record either Why County Rose and Henderson authori- flects or indicates that had com- Robbie ties, authorities, rather than Mansfield did living appellant menced and Beets af- with appellant arrest she was when arrested jail burglary ter he was released for a is not clear from the record. Bone testified offense that he committed in Navarro he did not believe that County, to had prior and that that time he Beets, guilty killing which conclusion appel- natural The lived with his father. upon following: based “I lived during attorney, lant’s who accused Robbie always her and ... she treated me being his murder- cross-examination decent.” There is no evidence the record ante, Beets, represented er of see Robbie attempted ever to kill Bone accused, convicted, placed he when was and arrangements made his disappear- probation committing burglary on condition, ap- ance. Bone’s financial which County. The fee and Navarro bail bond pears lacking, to have been was not direct- attorney’s apparently paid fee were ly brought out at trial. Appellant during Beets. admitted her tes- Branson, Bobby Wayne another son of timony falsely reported she Beets appellant, refer to who we will as “Bob- missing. also that after Appellant testified by”, disap- testified that before Beets she, Beets, Bobby, friend re- Bobby’s and Robbie, brother, peared, his and Beets had trip Virginia, turned from their vacation “couple” arguments fights and over suspected she and had Beets that Robbie things, sundry various and several of which boat, had propeller broken the Beets, appellant, occurred after Bobby, and wired; had also hot that Robbie been Bobby’s a friend of had taken vacation truck, caused tires on her which was trip Virginia they where visited with muddy dirty, and not clean as it was and appellant’s mother father and rela- and her flat; trip, on their they when left to become trip just tives. vacation occurred “a money whiskey took of a Robbie out couple Beets disappeared, of weeks” before Beets; belonged to caused bottle that and everyone and from who testified that was the trailer the inside of house become trip appears have familiar with the highly untidy. Appellant testified that this happy trip. There was also testimo- been doing these upset Beets. Robbie denied ny appellant lawfully that before Beets and things Shirley. Appellant testi- and blamed trip them married 1982 the two of took a during evening Beets fied that when Virginia appellant’s brother’s attend gone boating, to have before supposed Bobby testified that his funeral. also when bed, he, Beets, got into going Robbie living married mother and Barker were argument as over over the above as well “part together he them job. Appellant lived with testified quitting Robbie Bobby argument time.” further testified that when she was that the occurred when no and Robbie longer living he noticed that Barker was to be room Beets gen- argument house, he asked his mother were the bedroom. seen around the fisticuffs.12 Appellant erated into testified body might where remains of Beets's be, fired that soon thereafter she heard a shot now testified that she did not pistol. She hope from a then went into the know but “I testified that it was Beets, she head daddy bedroom where saw whose his mama him where want to be *11 bleeding coming bought had Appellant was and and where I blood the lots at.” mouth, lying Appellant on his the floor. testified further that it was one of her go she, to his attorneys, suggested then told Robbie and find brother and not who that Bobby, Robbie then Appellant try which did. she and recover on the insurance policy Beets, attempted appears policies. to care who “I She testified that didn’t dead, by putting expect get any to then been a bedsh- have to of it ... I’ve never felt body telling anything.” eet and him that if he like I entitled over was to She ad- boat, he that she were still alive would understand mitted that had sold Beets’ tried him in going bury appears she and Robbie were to to sell a house to have that been yard protect separate property, their front order to Beets’ and Robbie. also testified house, Appellant telephoned testified had mysteriously that she that which burned, asked her Shirley disap- and to come to the trailer was sale before Beets house, Shirley Shirley peared. which did. She admitted that had When she tried to arrived, body policy, Beets’ still in the bed- recover on a fire insurance at was her Shirley body. attorney’s suggestion. did not room. see the Shir- She further admit- ley by appellant Beets had she was told that ted that tried to take out J.C. gone evening Penney policy that a friend. insurance that to Dallas Beets it, “everything told after he told her Shirley After cancelled which not to again right”, Shirley they oppor- to until had had an was all left and returned do such tunity discuss are Appellant her residence Dallas. it. The facts undis- asleep, salary other Bobby puted then until that than several checks Robbie waited sale, “put they body proceeds appel- took from the boat after which Beets’ wishing sums planter. it did not receive other into the It wasn’t lant money Appel- told that if the as a result of Beets’ death. Appellant well.” Robbie say previously that body ever found Beets’ lant admitted she had been authorities offense, which, nothing that of a knew it convicted misdemeanor that he about “[a]nd cross-examination, Appellant’s shown to have take the blame.” on [she] lewdness, regarding public apparently that testimony the other events been Angels evening days that when she was in Charlie’s that and the occurred occurred bar, Bar, was then regarding finding body is a Dallas where she Beets’ followed working when what- employed other testi- but was not pretty much cumulative to the Appellant happened. testi- adduced, except she denied occurred ever mony that night, with- her she that De come to fied that “auditioned” Woody Marr and had that it morning specifying type after what audition was Saturday out residence “Well, I topless place it’s a but wasn’t Appellant for: reported missing. Beets was Appellant admitted cross- knowing body topless.” bur- also that Beets’ testified that she had been convicted residence examination yard front of their ied in the that resulted misdemeanor offense it I had another always her and will. “bothered husband, former I she shot another for a while. when out of trailer move dark, Lane, in stomach. We I the side and got Bill stay there. couldn’t When details of privy I not been made living room have couldn’t leave shooting. is no evidence There also testi- the Lane go Appellant outside.” couldn’t Lane kill ever tried to later Rob- approximately year fied that one she could disappear so that Lane to move cause her that “we needed bie told financially Lane’s death. On “I benefit from him that told body”, but knowing examination, she denied again.” As to cross go through itwith couldn’t fight ante, “by man.” with another a frac- caused Petty, see also testified Dr. been could have on Beets’ cheekbone ture
723
791,
(Tex.Cr.App.1982), and
of her
642
795
backyard
Barker was
S.W.2d
buried
Culley
v.
therein;
also see
the cases cited
residence.
(Tex.Cr.App.
S.W.2d
pause
point out
the trial
We
Furthermore,
1974).
necessary
it is not
pursuant
motion
coun-
judge,
defense
ag
allege the constituent elements of the
sel,
Bandy’s
restricted
cross-examination
capital
gravating feature
knowledge
appellant on her
of Barker’s
See Andrade
charge.
disappearance
single ques-
and death to a
However,
(Tex.Cr.App.1985).
be
tion, “Whether or not she
was aware
charging
fundamentally defective
cause a
body
husband, Doyle
of her former
instrument,
i.e.,
that fails to state an
one
Barker,
Wayne
was also buried on
accused,
against
may
at
offense
noted,
premises?”
appellant responded
As
appeal,
tacked for the first time on
and also
negative.
*12
after the
may be attacked even
conviction
Appellant
first
asserts
in her
State,
Thompson
final,
v.
has become
see
ground of
of
error that
first count
“[t]he
413,
(Tex.Cr.App.1985),
697
415
we
S.W.2d
she
the indictment
which
was convicted
[on
implied
the appellant’s
will address
asser
jury]
in
not
the
is deficient
that it does
allege
that the indictment fails to
the
tion
allege every
of
constituent element of the
capital
of
offense
murder
remuneration.
disagree.
point
fense.” We
We
out
first
alleg
that it
We hold
does.
indictment
ground
appeal
that the
of error on
does not
the
the
of
es that
caused
death
comport
appellant’s
that
with
contention
by shooting him
Beets
with a firearm.
was made in the trial
It
is now
court.
alleges
This
the offense of murder. See
appeal
axiomatic
error
that
raised
V.T.C.A.,
Code,
Penal
Section 19.02. The
comport
must
the
in
complaint
made
allegation,
additional
“and the said murder
Sharp
State,
the trial court. See
v.
707
remuneration, namely:
was committed for
Al
(Tex.Cr.App.1986).
S.W.2d
619
of
money
proceeds
from the
retirement
though appellant filed in
court a
the trial
Jimmy
employment
benefits from the
of
to
to
quash
prior
motion
the indictment
Dallas,
City
Don Beets with the
of
insur
trial,
overruled,
arguments
which was
her
Jimmy
policies of
said
Don Beets
ance
the
in the motion
to her
the
went
claims that
in
is the named
which
Defendant
bene
grand jury’s
upon
indictment was based
ficiary,
Jimmy
estate of
Don
evidence;
grand jury
insufficient
Beets,” alleges
aggravating element
evidence,
did not hear all of the
both favor
capi
of
that elevates
offense murder
appellant;
able and unfavorable towards
V.T.C.A.,
Code,
See
Penal
Sec
tal murder.
that some of
had
the evidence that it heard
19.03(a)(3),
provides
part
tion
which
obtained;
unlawfully
been
and that be
the offense of murder is elevated to the
op
not
given
cause
if
capital
person
of
murder
“the
offense
portunity
appear
grand jury
before the
the murder
for remuneration.”
commits
grand jury
did not have the benefit
alleg
find and hold that the indictment
We
testimony
her
return the
before
voted to
capital
es in the terms of the statute the
seen,
exception
indictment. As
with the
murder offense of murder
remunera
complaint
given
her
she
was not
Also see the discussion McManus
tion.
grand
opportunity
testify
before
State,
v.
(Tex.Cr.App.1980),
neration,”
(Tex.Cr.App.1983);
which we will later discuss.
We find that is correct homa, Idaho, and Tennessee have statutes when states that evidence what- she “[n]o ours; “commit- exactly like murder worded ever was offered to show that was a [she] promise or the of ted for remuneration party compact agreement, a or either as remuneration,” having 33 hired principal agent, by with States or which remuneration statutes, paid promised paid for gun aggravating or to be circumstance [to her] murdering necessarily do, except they The evidence and are not we [her Beets].” payors worded, i.e., testimony only is clear that is worded as our statute “[the companies have been the insurance capital mur- person the offense of commits Dallas, no City and the of and there is employs if another to commit der he] they anyone in this record that or evidence promise of for remuneration or the murder acting anything had to do on their behalf the oth- The statutes from remuneration.” of with the murder Beets. down into three er have been broken States (1) groups, murder committed categories or State, arguments, response The in its receiving money or purpose for the contends, implicitly, that once it es- albeit value, (2) murder thing monetary other that murdered tablished (3) gain, and mur- pecuniary for committed Beets also established that she was employed by one who der committed pol- beneficiary of the insurance the named or the defendant to kill another pen- or hired beneficiary of the icies and the named employing or hir- by committed the murder prima it made facie case sion benefits out post. See, however, this cause. 13. As applied
726
ordinary meanings
person
plain
kill another.
tional and
another
Several
States,
Missouri,
have,
“remuneration”,
such
do
con-
word
we
com
would be
Texas,
ele-
trary
specific aggravating
person
pelled
guilty
to hold that for a
to be
separately specifying
statute
rob-
ment
capital
provision of
murder under that
The
bery.
various statutes are compiled in the
or she
statute he
must commit
497,
McDonald,
v.
661 S.W.2d
State
expectation
that another
with the
(Sup.Ct.Mo.1983).
furnish
person
party
or
will
the remunera
murder, i.e.,
tion for
commission of the
provides in
The Texas Government Code
“quid
carried
as a
murder was
out
311.011(a)
that when word
Section
something
something,
defined,
pro quo”, or
for
statutorily
phrase is not
shall
“[it]
1123,
according
Dictionary,
supra, and
construed
Black’s Law
read
context and
grammar
and common us-
killer.
to the rules
was the hired
(Okla.
New
age.”
Collegiate
State,
322,
Webster’s Ninth
659 P.2d
Boutwell v.
(1985 edition)
Dictionary
defines the word Cr.1983).
comports
find actually
This we
“Something
“remuneration” as follows:
Judge
with
W.C. Davis stated on be
what
RECOMPENSE,
remunerates,
PAY.”
opinion
half of
in this Court’s
this Court
for the
997. One
the definitions
word
(Tex.Cr.
726,
Doty v.
Webster’s,
“recompense”
pay for.”
is “to
App.1979):
un
“Murder
remuneration
984,
Dictionary at
supra.
Law
Black’s
involves,
minimum,
19.03(a)(3)
der Sec.
at a
1460, (1979 edition),
the word “re-
defines
(2)
(1)
agent,
principal,
three individuals:
“Reward; recom-
muneration” as follows:
However,
(3)
stop
will not
victim.”
we
salary.”
Compact
pense;
Edition of here, but
next see how other States
will
Dictionary at
English
the Oxford
con
identically
statutes have
worded
edition),
(1971
defines
O.E.D. at
strued their statutes.
in like
“remuneration”
manner.
word
Appeals
of Criminal
The Oklahoma Court
tool,
Phrases, informs
research
Words
has
appears
only
court which
to be
usually
is
us that
word “remuneration”
truly
issue.
In
v.
Johnson
addressed
payment
mean “a
defined
courts to
follow-
that court stated the
supra,
person
one
another
person
made
applica-
ing: “We find that
traditional
something
did
exchange for
latter
(re-
aggravating
circumstance
tion
McDonald,
agreed to do.”
State
muneration)
where a defendant
has been
Supreme Court stated
supra, the Missouri
“
person
hired
has been hired or has
another
following:
plainly im-
‘Remuneration’
murder,” citing this
perform
an act
person to
plies payment from one
another
Doty,
of McManus and
Court’s decisions
pay
compensation
...
of services
loss,
supra,
dealt with murder
(as
both of which
expense)
equivalent for
a service
*15
situations,
(a person)
not the
that
for a
hire
and
situation
pay
equivalent
an
service,
Third
expense.
passing,
loss or
Webster’s
the Oklahoma
we have at Bar.
Dictionary, Unabridged
court,
realizing that it
New International
apparently without
(1981).” (503).
The Oklahoma Court
position,
assuming
contradictory
a
only
in the
Appeals, the
court
Criminal
hire
other than for
stated
a murder
Court,
inter-
comparable to our
has
Nation
where the motivation
could be committed
“remuneration” as
preted the word
proceeds from
primarily to obtain
Supreme
did
further
Missouri
Court
done to secure
policy or was
insurance
otherwise would re-
hold
stated
“[t]o
deci-
legacy. It cited this Court’s
devise or
language
quire this
to construe
Court
State,
464
O’Bryan
sion
v.
beyond
plain
for
its
‘murder
remuneration’
However, in Boutwell
(Tex.Cr.App.1979).
State,
v.
ordinary meaning.” Johnson
re-
court
State, supra, the Oklahoma
v.
(Okla.Cr.1982).
P.2d
meaning of the word
previous
turned to its
held
that cause
“remuneration” and
statutory phrase,
If we construed
of mur-
circumstances
aggravating
remu-
person
for
“[t]he
“the
commits
normally applied
is
remuneration,”
der for remuneration
promise
neration or
hired
of a
or to the hiree
hired killer
defini-
limited to
unanimous
the above
Boutwell,
ma-
killer.” It further stated in
su- We find from an examination of the
pertains to
pra,
wording
apparent pur-
that “The
terial that we have located that
Legislative history of
19.-
pose
is not so broad as to
Section
statute]
[of
03(a)(3),
enacted,
killings
pecuniary gain
include all
supra,
finally
which
...
as
Bill
Legislature
provide
Had the
intended to
commenced as House
as well
independent research on the sub-
aggravating
broader
circumstance
our own
[such
see,
the Practice Com-
example,
pecuniary gain’]
ject,
‘for
it would have done so
19.03,
mentary
case,
supra,
In the instant
neither the facts
to Section
that there
...
plain reading
single
nor a
of the Oklahoma stat-
is not a
shred
recorded evidence
might
support
proposed
testimony
ute
either of the State’s
reflect or indicate
701.12(3)(that
Legislature
of this State was
constructions
Section
be-
that when
ill-got- considering enacting
provisions of
cause the defendant was found with
Sec-
19.03(a)(3),
gains
supra,
robbery-murder
ten
from the
this es-
tion
it intended other
19.03(a)(3),supra,
he
tablished that
committed the offense for
than that under Section
minimum,
(1)
killing
prin-
remuneration and that the
occurred
“at a
three individuals:
(2)
(3)
gain).
cipal,
agent,
for financial
We therefore find that
victim” would be
involved, or,
aggravating
put
way, the
circumstance of murder
it another
supported by
only
is not
meant to cover
the situa-
for remuneration
statute was
in the case.”
tion
the accused has been hired or
evidence
where
perform
has hired another individual to
turning
Legislative history
Before
individual,
act of murder of another
capital
of our
murder “remuneration” stat
pecu-
was not meant to include all forms of
State,
ute,
O’Bryan
v.
pause
we
to address
gain.
Judge
niary
exactly
way
This is
supra.
point
We first
out that the issue
W.C. Davis on behalf of this Court con-
appellant presents to this Court was nei
State,
in Doty
supra,
strued the statute
presented
ther
nor raised in that cause.
Doty actually
notwithstanding
the fact that
is, however, great
language
There
deal
attempted
hire
involved an
murder for
situ-
opinion
that relates to the defen
comports
way
ation. This also
with the
our
“murdering
dant’s
his child in order to col
Appeals
sister
in Okla-
Court
Criminal
money.”
language
lect life insurance
Such
statute,
homa has construed its
might cause one to infer that this Court
identically worded to our statute.
See
construing
the statute to
mean
This,
Johnson v.
supra,
at 824.
capital murder for remuneration has as one
course,
Legislature
is not to state that the
of its elements the element of motive.
aggra-
provided
could not have
a broader
However,
is not
motive
an element of the
States,
element,
vating
as other
such as
E.g.,
capital
offense of murder or
murder.
done;
California,
only
have
it is
to state
(Tex.Cr.
Garcia v.
We Code, judgment acquit- a of the statute. See Government Sec- instructions to enter capital murder. only the offense of tion tal for 311.023. 728 definitively tion has
ONION, P.J.,
by
not been
answered
concurs
the result.
opinions
this Court.
few
it has
What
ren-
DAVIS,
W.C.
McCORMICK and
touching any aspect
dered
of this offense
DUNCAN, JJ., dissent.
include:
CLINTON, Judge, concurring.
State,
Hobbs v.
(Tex.Cr.
884
548 S.W.2d
Code,
19.03(a)(3) pro-
V.T.C.A.Penal
State,
§
App.1977);
Brown v.
561
S.W.2d
capital
person commits
vides that a
murder
State,
(Tex.Cr.App.1978); Doty
v.
484
19.02(a)(1)
if he murders under
and
§
Lind
(Tex.Cr.App.1979);
In McManus from the estate of 19.03(a)(3). namely, proceeds of Article At the part [his first stated, similarly “Appel- Court outset the mother].” acting Paula convicted of with lant was However, prosecution of was the basis Paul to cause the death of Derese Cantrell accused, requi- acting with complex: more promise or the for remuneration Cantrell intent, per- et cetera another site solicited thereof, money from the which was to be offense; W., son, commit the Walter of proceeds of life insurance and the estate party a third person in turn solicited Mary para- is Paul and Cantrell.” That person, and the who then hired a fourth language indict- phrase of actual of the Id., strangled at actually the victim. latter ment, viz: 27. did and there unlaw- then “[Accused] charged two theories. The indictment knowingly, acting fully, intentionally and First, employed Walter to that accused party as a with Paula Cantrell Derese his mother “for remuneration Jury persons and other to the Grand remuneration, namely, money,” promise of unknown, Har- cause the death of Paul pantyhose strangled her with and Walter means], by [specified vey Cantrell promise of remuner- “for remuneration committed for remuner- said murder was ation, namely money from Sec- [accused].” remuneration, promise ation and the ond, of his caused the death that accused namely, money proceeds from the of life pantyhose by strangling mother her with Harvey insurance and the estate of Paul committed for remu- and “said murder was Mary Bright Cantrell Cantrell.” remuneration, promise neration and namely proceeds the estate of Id., Responding at 514. to a claim that the [his Id., at 33-34. enough give indictment failed to notice in mother].” particulars, found the certain Court opinion point, At that the Duff-Smith suggest wording did not “that observes, “Though paragraphs of the both killing or that employed another to do the charge capital murder under indictment compensation promised person he another Code, 19.03(a)(3), the Sec. V.T.C.A.Penal it; doing clearly alleges appel- it differ.” paragraphs the two theories behind the murder and that he lant committed Id., authority at 34. No is cited to validate compensation promised by another to 19.03(a)(3). theory under the second § Id., (Emphasis original). it.” do at authorizing Paraphrased, the instruction discussing allegations, After further its find that jury required to convict Court concluded: the death of his mother accused caused gravamen capital murder “The strangling pantyhose “for remu- her with indictment, charged in this offense remuneration, promise or the neration notice, given his appellant was namely, proceeds from the estate ... compensation by having promised been cetera], acting specific intent with [et Paula to kill the victims and on that solicited, encouraged Wal- or directed [he] basis, having them.” killed and Walter to commit this offense” ter ... Thus, the accused McManus person Ibid. party with the third then acted as on a alleged to have committed murder per- party with the fourth who acted as “to do promise compensation strangle another really the mother son who did it,” basis,” having done it. and “on that “for remuneration pantyhose, directly remuneration, mon- namely his conduct comes within promise Since 19.03(a)(3), concept “party” of that part ey....” first of Article From its view superfluous. instruction, the State “party” as a the Court believed that he acted theory em- proceeded under “ultimately summarized the action The Court in- paragraph of the second bodied in the as follows: Duff-Smith dictment.” Ibid. convicted, party, “Appellant as a however, matter, the facts murdering mother_by stran- Given “party” describes such a formulation gling panty hose for remuner- her with a *18 Accordingly, join judgment more akin the second of I part offense 19.03(a)(3) “Employing” than first. Court. § disguised “party,” just “conspir is WHITE, MILLER, CAMPBELL and acy” “employing” Lindsay, masked su JJ., join opinion. in this J.,
pra,
(Douglas,
dissenting);
at 574
Hobbs, supra, at
887. See Gamez v.
ON
FOR REHEARING
MOTION
(Tex.App.-San
In this did the murder. V.T.C.A.Penal 19.03(a)(3). finding appellant by deed herself. is no issue After There raised § an- appellant guilty, jury returned affirmative evidence case that commit- special under by a swers to the first two issues “prom- ted the murder for hire or as 37.071(b), Art. Punishment was of V.A.C.C.P. party. isee” from another remuneration appeal, at death. On direct we things considered, question assessed All this is a of by of points presented reviewed three error impression jurisdiction first in this concern- points appellant. We overruled meaning application of stat- and alleged indict- pertaining to the deficient utory person clause “the commits the mur- ment, sufficiency as well as promise for or the of der remuneration a support a due to evidence to conviction remuneration.” accomplice by prosecution reliance on Teague opinion Judge has written regard ground, testimony. In the third satisfactorily the Court demonstrates for original submission we concluded that requires the statute either that an that prove beyond a reason- the State failed to culpa- kill for remuneration from a accused of appellant able caused the death doubt promise “remunerator” or on a of re- ble remuneration, facts her for as the husband “promisor,” by culpable or muneration a for not a “murder of case did establish employ an accused another to kill for remu- hire” We concluded that the case. or promise remuneration a remunera- statute, 19.03(a)(3),1supra, did neration § short, In killer” “hire tion. be a “hired or ac- encompass not a situation in an a killer.” cused another the deceased’s murders for expectation of One who kills with an proceeds life and ben- insurance retirement gain solely from pecuniary derived a blame- efits. capital less source does not commit murder rehearing, the State its motion meaning and intendment of within finding a argues erred in that we 19.03(a)(3). § proceeds murder committed to obtain the life proves only of a deceased’s retirement benefits appellant The evidence murder policies killed was not a voluntarily intentionally her hus- insurance therefore, capital a expectation. just It remuneration such an band 19.03(a)(3), felony provisions of requisite for the under the not show she did so § does supra. have examined this issue promise of We from or remuner- remuneration Therefore, agree proscribed the conduct culpable she now party. ation killing of 19.03(a)(3),supra, includes guilty capital murder. is not § While der. did parties. the money, Castro to murder the deceased clearly 1974).” “The in fact shoot murder contract and the TEX.PENAL CODE ANN. proof at he is guilty Further, trial showed did not of murder also deceased because pull the guilty under the law of payment of the § 19.03 with a and that Castro trigger capital gun. proof (Vernon himself, hired mur- 1. tion. remuneration muneration this code and: mits (a) (3) employs murder person [******] person another or the as defined under commits or the commits the promise commit promise of remunera- offense § the murder remuneration 19.02(a)(1) if he com- for re- receive, any remains thereof had body for the Beets’s nor person in order to investigation, in- After an receiving, a benefit like an been discovered. purpose *19 charging on the life of a de- an arrest warrant surance settlement Rose secured appellant the murder of Beets. She ceased victim. 8,1985. appellant After was arrested June 6, August that on The record reflects2 incarcerated, secured an eviden- Rose was 1983, near at the Redwood Beach Marina tiary Pursuant to the exe- search warrant. empty drifting Kemp, an boat was found warrant, physical the search cution of near the marina. After two on the lake Barker, Wayne Doyle remains of Beets brought marina customers boat appellant, were another former husband shore, “Jimmy fishing license issued to premises of the discovered on the buried discovered in the boat. Don Beets” was Two bullets were recov- Beets residence. and Parks and The Coast Guard Wildlife The Dallas ered from Beets’s remains. The authorities officials notified. were Laboratory Forensic Science identified telephoned the Beets’ residence several as Beets and Barker. remains of the bodies appellant. finally spoke times pistol from the A item recovered Collector’s identify the at the marina to She arrived appellant’s residence as a result of another high fishing license. Due to boat was also turned over to the Dallas incident winds, the authorities decided a search laboratory. follow- body Beets’s would commence the ing morning. Branson, appel- son of Robert “Robbie” lant, appel- At the time testified at trial. following day, Deputy The Sheriff Marr reported missing, falsely lant her husband Woody appellant and Fire De Chief visited Appellant living with them. Robbie was possible inquire as to Beets’ return Beets, plan of her to murder told Robbie Appellant home. stated that her husband request, her he left the residence. and at gone fishing night had before but had later, learned Two hours he returned and trial, appellant not At denied returned. killed her husband. He as- she shot and Woody’s Marr and De to her home. visit body in placing sisted his mother Beets’s Denny City Burks of the of Dallas Fire “wishing as the well.” the site constructed Department called on several following day, appellant placed Beets’s reported times after her husband miss- pills in his took the heart boat. Robbie ing. Appellant inquired as to Beets’s cov- propeller from the and abandoned it boat erage policies pen- under his insurance Afterward, appellant met her son the lake. promised sion benefits. Burks to look into returned home. At and the two of them the matter for her. He later learned trial, participation Robbie admitted $110,- Beets’s life insured for close to well, burying body wishing in the Furthermore, appellant 000. would be enti- He remained having denied killed Beets. $1,200 tled to almost each month receive “protect his years moth- silent two pension relayed He this informa- benefits. er”; however, cooperate with he chose to appellant. City Attor- tion to The Dallas prosecution. to avoid the authorities appellant through her ney also informed attorney mandatory year of a seven wait- daughter appellant, Shirley Stegner, ing any payment insurance period before telephoned her mother her on testified that body not re- proceeds as Beets’s had been 6, August Appellant requested her 1983. covered. Shirley daughter to the house. asked come plan kill Beets her mother if the later, spring years two in the af- completed. Appellant responded Rose, investigator Rick had discussed the Appellant firmative. County Henderson Sheriff’s Office became daughter scheme with her elaborate disappearance Beets. He in the involved Beets, Rob- kill have credible, had confidential informa- received lake, and set the drop body posed bie the cause of Beets’s death tion that time, appear as if Beets accidental- adrift to possible questions. At that neither boat opinion. previous presentation our follow of the facts of 2. We will $10,- policy her Shirley After arrived at an insurance in the amount ly drowned. house, May appli- home as insurance mother’s sent her 000 on completed his knowl- “everything was taken care of.” Several cation was without later, appellant Shirley edge. application be- informed Collins noticed the weeks Beets in the the address on form was not that that “she and Robbie buried cause wishing appellant’s well.” of the deceased but daughter. Appellant the named bene- judge permitted testimony The trial ficiary application. Appellant did on the Barker, relating appellant’s to the death of completing application, sign- deny to events spouse. Shirley former testified returning the deceased’s name and prior two to Beets’s years which occurred *20 monthly payment. the with 1981, appel- disappearance. On of October Webb, employee kill of Shirley going Peggy to Sherrills an lant told “she was Dallas, Super- Wayne City “she and the “Benefits Doyle Barker” because Personnel”, put up with more of him beat- visor with testified that couldn’t policy him had a life ing her and she didn’t want deceased insurance $86,000. Furthermore, anymore.” Appellant the trail- was around amount name, beneficiary policy. and if she of the er house was Barker’s named divorce, to a he would receive were obtain George Chaney, a examiner document later, Shirley, days appellant told it. Three twenty-three years by the employed for had done “it was all over with and she Service, employed by presently and Secret Appellant she intended to do.” wait- what Dallas, testi- a local document examiner asleep, she cover- ed until Barker was then signature Penney that the on the J.C. fied gun pillow a fired it twice ed the by appel- application signed insurance was her Shirley into Barker’s head. assisted lant, authorizing signature the can- but the They disposing body. mother deceased’s policy was the cellation yard. The him in a hole in the back placed Chaney signature. further testified that purchased day, they next cinder blocks signature on the of trans- certification Subsequently, patio over the hole. built appellant sold after fer for a boat storage replaced patio. shed appellant. death was that of the Beets’s Ex- Petty, Medical Dr. Charles the Chief Hast, City of Jerry employee an County and Director of the Dallas aminer Dallas, Dal- and the “Administrator of the Laboratory, testified Forensic Science Fund”, Fire testified las Police and Pension post-mortem autopsy. He identified application filed concerning an for benefits Barker. as those of Beets and the bodies He attorney appellant. by an behalf of gun- death “the The cause of of Beets was pension voted testified that board skull wound defect in the shot appellant for her approve a settlement with Petty positively was tes- unable to trunk.” would be pension benefits. The settlement fired from tify that one bullet was However, finalized on June Bark- pistol. regard item Collector’s members settlement was cancelled after from his er, were recovered three bullets arrested appellant learned was the board remains, of death and the cause skeletal murder of Beets. for the “gunshot wounds.” $15,852.59, monthly plus a to receive her life as Jones, Dal- the rest of benefit $790.42 Allen a firearms examiner Laboratory, long single. she remained County Forensic Science las fired The bullets bullets. examined Elrich, Jr., Manager of the E. Stewart weapon, fired from .38 caliber were Republic Department of Group Life Claim testify positively unable he was Group Company, Life Insurance National item they fired from the Collector’s were company life insur- issued a testified pistol. in the amount policy on deceased ance $23,428. contained Collins, Beets, policy also em- of niece of Jackie provision in the amount death Com- accidental Life Insurance ployee Penney of J.C. company attorney $20,000. An wrote cancelled testified that deceased pany, appellant stating Bobby. attempted that “an brother She to care for on behalf of dead, Beets, appeared by putting a application had been made for administra- who body. proceeded bedsheet over his She tion of an estate.” No action was ever him, alive, if he he must attorney’s on the demand letter. tell were still taken Robbie, protect they understand that Lane, Faye another The defense called yard. Appel- bury must him in their front daughter appellant. Lane testified that telephoned Shirley, her lant then and asked Shirley spoke of neither Robbie nor their Shirley house. to come to the trailer When killing Beets or mother’s confession arrived, body still in the bed- Beets’s Barker, participating in their nor of burial Shirley body. Ap- not see the room. did killing after them. Lane also testified that gone pellant Shirley that Beets had told “everything told ever [Robbie has] evening After Dallas that with a friend. her, believed.” [she] Shirley “everything told was all Bone, Raymond who lived with right”, Shirley left and returned home to disappearance, after Beets’s also testified. Appellant Dallas. and Robbie waited until agreement Bone entered into an with law Bobby asleep. They “put then Beets’s keep posted officials to them enforcement body planter.” Appellant told into appellant. as to the whereabouts of Before take the if the Robbie blame” “[she] *21 arrested, appellant Bone notified the was body. authorities ever discovered the authorities as to her whereabouts. Bone benefits, Regarding appel- insurance and appellant did not the killed Beets. believe sug- attorneys lant testified that one of her belief, support In of his offered the he gested policies. recovery a on the insurance following: “I lived her and she with ... stated, expect get any “I She didn’t to of it always treated me decent.” I to ... I’ve never felt like was entitled Branson, Bobby Wayne appellant, son of anything.” selling She admitted to Beets’s prior disappear- testified that to Beets’s trying sell a boat and house was ance, “couple” Robbie and Beets had a However, separate property. Beets’s arguments. Bobby living also testified to (which burned) mysteriously for house during his mother and Barker their disappeared. sale before Beets She admit- later, marriage. Bobby time Some noticed trying ted to to recover on the fire insur- longer Barker was no around the house. policy. to tak- ance She further admitted inquired He as to Barker’s whereabouts. Penney poli- life insurance out the J.C. Appellant replied: gone just ... “[H]e cy eventually that Beets cancelled. he left.” cross-examination, On admitted Appellant testified in In her own behalf. previous the misdemean- to a conviction of Beets, regard killing her testimo- public also or offense of lewdness. She ny contrary to statements her son having admitted to another misdemeanor testified and Robbie. She that Robbie shot husband, shooting former conviction for a Beets, merely killed and that she assisted Lane, Bill in the side stomach. She and disposing body. Appellant him in of the knowing denied that Barker was buried stated, Jimmy “I could never hurt Don ... yard of her residence. back Jimmy Nobody’s I loved Don. ever been rehearing, In this motion for good he to me as was.” She admitted finding argues that we erred in that a State missing. Appel- falsely reporting Beets as purpose ob murder committed for the evening alleg- lant testified that the Beets taining proceeds of a deceased’s retire began edly boating, he and went Robbie policies insurance ment benefits and life arguing. argument occurred not a murder for remuneration living Appellant bedroom. was in the therefore, capital felony not a under physi- argument generated into room. Code, V.T.C.A., Penal provisions of thereafter, cal blows. Soon (b). 19.03(a)(3) provides: The statute § pistol. heard fired from a She went a shot (3) the murder lying person on commits into the bedroom and saw Beets for of remu- remuneration promise or the Appellant told to find his the floor. Robbie employs appellant. In O’Bryan another to commit neration (Tex.Cr.App.1979), for remuneration or the S.W.2d remuneration, the defen the murder convicted murder of (emphasis dant was for the promise son, Timothy, added) eight year old for remunera thereof, promise namely tion or the meaning inquiry An into the of the word policy life proceeds from a insurance on the uphold propo- does “remuneration” Timothy. the convic life of We affirmed sition that “murder remuneration” death in the case. As in tion and sentence hire,” to “murder for as we found limited cause, indictment the instant on New In- original submission. Webster’s supra, “for remu O’Bryan, alleged murder Edition, Dictionary, Third Una- ternational neration”, namely a proceeds life bridged, 1971 defines “remunerate” as: In policy. appeal, instant insurance service, 1) equivalent (as pay an killed reflects that her evidence 2) loss, expense); pay equivalent proceeds for the life insur husband service, expense: (a person) for a loss or pension Appel policies ance benefits. recompense, compensate: syn pay. see $43,428.33 receive in an acciden lant would In Second New International Webster’s $86,000 policy, death another tal Unabridged, 1948, Dictionary, it instructs $15,852.59 Dallas, City policy with the usage as: “remunerate” monthly pension ben from the board and frequently compen- Remunerate adds long of her life as $790.42 efit of rest reward; ‘He implication of sate the single, remained in addition to as she great kill him have a that would should $3,200 from the sale deceased’s Glas wages.’ Com- remuneration double claim under tron ski boat. She also filed a polite- and remunerate are often pensate damage policy insurance a fire pay might a more or ly used when have property in the estate of separate home offensive connotation. less supra, Jimmy O’Bryan, Don Beets. *22 of “remu apparent It that the definition supported proposition is the the facts narrow does not mandate the the in the man neration” killed defendant deceased requiring payment, 19.03(a)(3), or salary, in murder for proscribed construction ner § agent principal pecuniary paid by to an his or reward remuneration support Re in case gain. in murder for hire situation. The facts the instant a strict range of encompasses same conclusion. munerate a broad situations, including for loss compensation again “remunera- construed the term We given suffering or and the idea of a reward State, 505 in McManus v. tion” of act. We shall or received because some (Tex.Cr.App.1979). appellant had been Code 1.05 of the Texas Penal adhere to § murdering the “for charged with victims of this requires provisions which “the thereof, or the promise remuneration according to the shall be construed Code money proceeds of life to be from the was import their terms.” See V.T.C.A. fair of Mary of Paul and insurance and estate case, Code, instant 1.05. In the Penal § chal- Appellant at Id Cantrell.” paid for remuneration is one import of sufficiency of the evidence to lenged the suffering. previous cases While loss or committed for that the murder was show resolution provide absolute may promise or the thereof. We remuneration analysis, instructive interpretive it is our prove the evidence was sufficient held prior of decisions several our examine doing, and in so element the remuneration acceptance implicit find at least where we following: noted the of interpretation of broader proscribed by this section The conduct 19.03(a)(3),supra. § killing is the capital murder statute receive, or for original sub- position any person our order
Contrary to receiving some benefit mission, previous purpose remu- analysis several Thus, focus argument compensation. ad- supports cases neration actor’s culpability upon has at criminal by that this Court vanced the State of mind. state decided the issue adverse implicitly least affirming at 513. In Id. conviction the Duff- Smith, case, supra, we reviewed the suffi- McManus, supra, Ia killed his ciency supporting of evidence the convic- expectation receiving portion victims regard tion in to thé corroboration of the proceeds from the victims’ life insur accomplice testimony. We held the accom- proven ance and estate. It was never daughter, Cantrell, plice testimony sufficiently the victims’ Paula corrobo- promised appellant ill-gotten a share in the respect rated with to the remuneration ele- gains. showing culpable There nowas of a testimony ment. The was corroborated as “promisor.” The promisor lack of such a support there evidence “... regard irrelevant in sufficiency theory appellant’s primary State’s that the of the evidence to sustain the remuneration having motive in his mother killed his by element. The element was fulfilled immediately reap proceeds desire to appellant’s expectation receiving money accomplice her estate.” at 33. The Id killing:3 as a result of the testimony regard was corroborated clearly record reflects that element, the remuneration as the evidence expected proceeds to share in the from indicated the killer murdered the victim the estate of the victims and that he order to receive mother’s estate. In expectation acted out of an that he would McManus, supra, Duff-Smith, both receive such remuneration. supra, we examined the remuneration theo- Id at 513. ries advanced We affirmed State. Therefore, contrary to what was stated on upon finding the cases the theories suffi- original submission, the existence of a “cul- ciently proven. The above cases are identi- pable promisor” required is not to establish bar, gain cal to the case at a murder for remuneration as reflected here. The focus reward. is on the actor’s intent or state of mind: prior opinion, In our we also discussed Did expectation the actor kill in the Appeals the Oklahoma Court of Criminal receiving compensation, some benefit or opinions in Johnson v. 665 P.2d e.g., proceeds, pension life insurance bene- (Okla.Cr.1982) and Boutwell v. so, fits? If remuneration outside the (Okla.Cr.1983). P.2d inadvertently We sphere of “murder for hire” cases is estab- meaning concluded that of the word lished. “remuneration” is “not so broad as to in- A more recent case further illustrates killings pecuniary gain.” clude all expectation remuneration in of financial re- majority, the Oklahoma cases cited *23 State, In ward. v. Duff-Smith the Oklahoma court considered a whether 26 (Tex.Cr.App.1985), the indictment robbery-murder was a murder for remuner- charged remuneration; two theories of the capital ation the under Oklahoma murder paragraph hire”, alleged first “murder for The rejected statute. Oklahoma court paragraph alleged and the second “murder upon finding contention mere the proceeds for of his mother’s estate.” The showing a murder was committed the ultimately proceeded State on the “murder robbery course of does not amount to a proceeds for of his mother’s estate.” showing of murder a for remuneration. Whereupon, the in Duff-Smith, There was no indication that the defen- supra, was convicted and sentenced to primarily dants the committed murders to remuneration, death the theory under or obtain financial reward. gain. murder for financial The Duff- Smith, Boutwell, supra, theory supra, purpose In is similar to the theo- the ry in killing the instant case. at was to avoid identification. Id decision, promise, “implicit" 3. To further bolster our held we hire" cases because of that appellant’s expectation appel- the of remuneration the McManus court relied first on that "implicit” promise expectation arose from an that Paula lant's state of mind and of reward. pay pro- gunman Cantrell would him out of insurance The evidence showed the in fact stole But, may argued money purse ceeds. while it that Mc- the from Cantrell’s on a subse- quent Manus does fall within the usual "murder for occasion. 736 Moreover, Boutwell, supra, agent State,
328. the court and victim. See Doty v. (Tex.Cr.App.1979). However, the S.W.2d aggravating observed that circumstanc- this interpretation of the does not normally es or murder for remuneration is statute comport O’Bryan, supra, the Mc applied hiring killer or to the hired Manus, supra, Duff-Smith, supra, de However, a hired killer. the court further cisions. recognized that such a construction so
term not
restrictive.
court ob-
Therefore,
Doty,
extent that
su-
served
“murder for remuneration has
requires
pra,
to be
there
a “minimum”
applied
killings
pri-
also been
motivated
capital
three
of-
actors
constitute the
marily
proceeds
to obtain
from an insur-
remuneration,
fense of
for
murder
it is
policy,
ance
murder of a testator
[and]
hereby overruled. See also Hobbs v.
secure
legacy
order to
a devise or
...”
More-
(Tex.Cr.App.1977).
S.W.2d 884
Johnson, supra,
It is
over,
at
therefore
O’Bryan, supra,
case was
after
1979,
evident the Oklahoma Court of Criminal handed
the Legislature
down
met
Appeals construes “remuneration”
in-
provisions
capital
and considered the
changing
than
murder
or
clude scenarios other
“murder-for-
statute without
Chaney
amending
pertinent provision
In
hire.”
involved here and spite danger in wherein Defense Counsel ac- evidence raised extraneous Branson, witness, preju- Robbie of do- cused the this evidence will create unfair State, Parks, murder”. Defense counsel re- Boutwell v. 719 supra; dice. Albrecht, by saying, Robby “I didn’t accuse sponded (Tex.Cr.App.1985); 164 S.W.2d (sic) Wayne murder on Branson supra. in that non-exclusive list Included very to limit Barker. I’ve been careful of an accused’s extraneous where evidence Everything mentioned that. that’s been has held admissible criminal conduct been Jimmy Don mentioned as here has been (1) the offense is ad- are situations where hearing arguments, After both Beets.” the context mitted show previ- judge first noted that he had the trial occurred; (2) act the extraneous criminal motion, ruling ously reserved a final on the circumstantially proves identity offense of the extraneous then ruled evidence lacks direct evidence of the where State admissible, upon the offense was based (3) goes perpetrator’s identity; the offense elicited, exception testimony already scienter, the neces- to the issue of where against of extra- to the rule the admission particular for a act can- sary mental state “exception” to Appellant’s neous offenses. inferred; (4) the offense shows not be jury ruling noted. When conduct, particu- motive for his accused’s returned, Stegner testified to the facts charged offense is inter- larly where the addition, Investigator supra. stated part act or is of a twined with the collateral and testified Rose recalled to the stand continuing plan of criminal be- or scheme Doyle Wayne remains of Barker that the havior; (5) the extraneous conduct shows ap- yard of unearthed from the back were malice, proof malice is an element of where time the pellant’s residence at the same charged inferred from the and cannot be body Jimmy Don Beets was recovered act; (6) offense is offered criminal also al- yard. the front Rose was theory raised refute a defensive Shirley Stegner testify that both lowed Albrecht, supra. accused. See ap- him that Branson had told and Robert Parks previously have stated As we killed Barker. pellant had Williams, although supra, the list both juris It is well established Albrecht, state- supra, is an accurate per an accused prudence of this state that time, evidence at this ment of the law of offenses may tried for collateral son not be or ex- meant to an exhaustive was not v. Parks being generally. criminal or for general rule exceptions clusive list State, (Tex.Cr.App.1987); 738 746 S.W.2d regarding admissibility of extraneous (Tex.Cr. 344 662 S.W.2d Williams State, 692 Morgan v. offenses. See also State, 486 S.W.2d App.1984); Albrecht v. The true (Tex.Cr.App.1985). 877 S.W.2d of extrane (Tex.Cr.App.1972). Evidence 97 admissibility extraneous offense “test” of inherently preju by nature ous offenses is showing by prosecution “both is a danger of the additional dicial and carries to a material is relevant the transaction to defend him forcing criminal defendant case; and, relevancy value issue charge having a implied against an self inflammatory outweighs its of the evidence rather than to commit crimes propensity Williams, supra, potential.” prejudicial brought has specific charge the State State, 607 S.W.2d Rubio v. quoting from Williams, Parks, supra; against him. See (concurring opinion). (Tex.Cr.App.1980) supra; Elkins v. shall, therefore, attention to turn our We State, (Tex.Cr.App.1983); Bates v. Williams, supra, two-prong applying the are, (Tex.Cr.App.1982). There S.W.2d 939 case. of the instant test to the facts exceptions to however, recognized certain correctly points out As offenses general rule that extraneous instruct brief, case was jury in this her accused. at trial of an are never admissible re evidence the extraneous ed to consider Albrecht, This is cir supra. because See subsequent murder, garding burial variety fact situa in a exist cumstances remains for of Barker’s danger of exhumation mitigate the either tions which *26 (Q) really bugging you, identity Kept was purpose proving the limited —it argues that iden- it? Appellant killer. wasn’t Beets’s issue, at since the defense tity was never (A) Yeah. We
properly did not indicted or that she was ry” presented was that she was charged her also scene when indictment under which disagree contends that the dispute that she was the tried only Beets was shot. on both counts. for both murders since the with the murder of Beets. only “defensive she present at the was Appellant being im- person theo- tried (Q) You killed (A) No sir. (A) No sir. (Q) bugging you, wasn’t killed with a It was [******] handgun, man, bugging you him and that’s the reason didn’t it? you you? because killed him it was you them, you? (Q) haven’t Had a bunch theory began of the case The State’s you is first time ever killed This going ended with circumstantial evidence man? prove appellant planned the murder fifth in order to receive (A) anyone. of her husband I've never killed benefits, monetary after which she various Yeah, (Q) you have ... “sig- proceeded carry plan. out that Her simply without Appellant’s contention crime distinctive. She nature” was cross-exam merit. From defense counsel’s of the head shot the deceased back Branson, it is ination of the witness Robbie handgun a .38 calibre while he was place theory the defensive was to clear that sleeping. She then enlisted the assistance trigger of the finger upon Branson’s help dispose body in a of her son to so, By doing weapon. the defense unique property, manner. his On own directly issue in the contested a material “wishing within a well” he had built triggerperson in identity case—the her, appellant buried the deceased after charged crime. The indictment placing body sleeping bag. into a In a killing charged appellant with cause twist, she macabre then set out flowers remuneration; deceased for she was ap- “planter.” years, In the next two charged companion offense under with the personal belong- pellant property sold off 19.03(a)(3), hiring do supra, of another to § deceased, on fire tried to collect killing neces for her. It was therefore insurance on one or of the deceased’s two sary prove appellant for the State to properties, attorney rental and hired an triggerperson. To rebut applied for death who various benefits introduced testi theory, State’s the defense having successfully her behalf after Beets demonstrating mony that another individu legally declared dead. al, Branson, equal superi- had an Robbie offered the above evidence State and criminal back opportunity, motive through testimony of nineteen witness- appellant; ground the deed as did to commit es, including Shirley Branson and Robbie actually com and that it was Branson who Stegner, appellant’s Bran- two of children. correctly the murder. The State mitted testimony especially damning to son’s arguing pointed out these salient facts effort, he the defense as he related how of the extraneous offense. for admission away from the house was sent trailer clearly The record reflects going she told him she was after trial. of identification at raised the issue Beets, help drag her to kill then returned to (Tex. See Moore sleeping-bag-encased body of Beets Identity being a mate Cr.App.1985). both bury him in the well. around the house and case, find disputed issue in the we rial and cross-examination, following oc- On regarding circumstantial evidence that the curred: probable killing Barker made it more (Q) any- you is the told triggerper- When first time than not that such, and,
one about this?
instant offense
son
Williams, supra.
(A)
relevant. See
year
later.
About a
or so
*27
weigh
probative
It remains to
determination,
positive
value
strategic move to
relating
of the evidence
to Barker’s death
combat
circumstantial
evidence
against
inflammatory
prejudicial po-
its
presented by
prove
up
State to
assessing
tential.
this balance between
identity nexus
appellant
between
and the
probative
value of the extrinsic evi-
triggerperson.
effect,
dence
prejudicial
versus its
it is
though
question
Even
identity
necessary to
view
nature of the State’s
disputed, the extraneous
may
matter
still
Parks, supra.
case.
The State’s case con-
be inadmissible unless there are distin
entirely
sisted
of circumstantial evidence.
guishing characteristics common to both
Although
Stegner
both Branson and
testi-
offenses such that the accused’s acts are
appellant
fied
voiced intent
kill
Beets
handiwork;
earmarked as
“signa
his
his
before the incident occurred and admitted
apparent
ture” must be
comparison
from a
fact,
the act after the
eye-
there was no
of circumstances in both cases. See Colla
killing.
witness to the actual
The State’s
State,
zo v.
623
(Tex.Cr.App.
S.W.2d 647
case, therefore, depended on two members
State,
1981);
see also Collins v.
appellant’s
family, both of whom suf-
State,
Buckner v.
(Tex.Cr.App.1979);
problems
fered
credibility
rigor-
due to
(on
(Tex.Cr.App.1978)
S.W.2d 519
re
ous
by
Stegner
cross-examination
counsel.
hearing);
Ransom v.
way
rapid
setting
for the
dissemination of informa
inherently prejudicial.
the trial
Faulder, supra.
public.
party
Neither
tion
to a law
Appellant’s
point
fifth
by restricting jury
suit is served
service
error is overruled.
the uninformed or uninterested. As the
point
appel
In her
sixth
error
stated,
Supreme
“scarcely any
has
Court
if
lant contends that even
trial court did
qualified
jurors
those best
to serve as
will
denying
change
not err in
the motion
impression
opin
formed
not have
some
venue, “it was error for the trial court to
ion as to the merits of the case.” Irvin v.
conduct the
dire in the
that it
voir
manner
Dowd,
717,
1639,
366 U.S.
S.Ct.
6 L.Ed.
Specifically, appellant complains
did.”
Rather,
(1961).
question
2d 751
to be
questions
given
instructions
the tri
surrounding
publicity
asked is whether the
judge
prospective jurors
al
wherein
permeated
community
the case has
(1)
judge
prospective
admonished the
prospective jurors’
such an extent that the
opinion
guilt
jurors not to hold an
as to the
opinions
initial
cannot be set aside. In the
“keep
or innocence of the defendant but to
pretrial
matter of
publicity,
or trial
we
open
fully
an
mind and
consider the evi
must therefore direct our attention
(2)
panel;
dence” if chosen to
on the
allegedly creating
exhibits
the intolerable
instructed the venire
members not
read
Faulder,
atmosphere
prejudice.
See
su
accounts,
any newspaper
any
listen to
radio
Phillips,
Nethery,
Ec
pra;
supra;
supra;
accounts,
watch
television accounts of
kert, supra.
anyone,
the case or discuss the case with
carefully
We have
examined
exhibits
(3)
including
jurors;
questioned pro
other
testimony
pretrial
and record
at the
hear-
spective juror Finley whether he had either
appel-
therefrom that
but do not find
case;
(4) ques
heard or read about the
opportunity
lant’s
for a fair trial was
prospective juror
tioned each
who had ei
“utterly corrupted by press
caused to be
something
ther heard or read
about the
Faulder,
338,
coverage.”
supra,
See
at
case whether he or she had reached a con
Florida,
Murphy v.
paraphrasing
U.S.
guilt
clusion as to the
or innocence of the
(1975).
jective reporting. As several witnesses at
(sic)
encouraged to
venire men
have been
admitted,
hearing
pretrial
accounts
they
opin
or not
conceal whether
have
factually
discovery of
cover the
both bodies
*31
guilt
do not
ion as to
or innocence.” We
appellant,
and the arrest of
but do not
agree.
speculate
factually
or
assert facts as to the
pur
A voir dire examination is for the
exception, the
guilt
appellant.
of
one
With
pose
enabling
judge the de
of
counsel to
of these articles are also factual-
headlines
right
panel
exercise the
meanor of the
and
in
ly objective.
exception
The one
is found
strike a
challenge
peremptorily
to
or to
story entitled “Self-Made Wid-
the tabloid
intelligent
prospective juror in an
manner.
may
such a headline
be obvi-
ow.” While
State,
(Tex.
See Emanus v.
806
526 S.W.2d
sensationalism, ap-
non-objective
in
ous
its
statute,
judge is
Cr.App.1975). By
a trial
the headline cor-
pellant never showed that
panel
entire
required
“propound
to
to the
objective reporting. The
rupted otherwise
concerning
prospective jurors questions
of
only reflects that the tabloid was
record
the case on
principals,
applicable
the
gro-
purchased by counsel’s son at a local
doubt,
trial,
proof,
burden of
of reasonable
the
cery
It was not shown that
store.
by grand jury, pre
return of indictment
nor
publication,
was of local
tabloid
innocence,
sumption
and
opinion.”
had
proven
quantities
in what
the tabloid
(Emphasis supplied).
Art. 35.17 V.A.C.C.P.
the
in the area or to what extent
been sold
Moreover,
prohibited
not
judges
trial
are
proceed-
“corrupted” future
headline had
pro
intervening in
of a
examinations
story
the
itself is
ings. We do note that
be
spective juror; the court’s discretion will
past
reads
the
factually objective once one
judge’s comments are
only when a
abused
hold that
deceptive headline. We
the State
reasonably calculated
benefit
that
to establish or demonstrate
has failed
cited
Even
pra, at
cases
therein.
the
See
810 and
prejudice
defendant.
Gardner
or
(Tex.Cr.App.1987).
might
been ex
State,
conceding
there
have
pendancy
responds
of the case.
people,
The State
including Stegner
Branson,
by contending that
the record
talking.
does not
Moore
making
overheard Branson
support appellant’s
statement,
claim either that both
stand,
“While I
onwas
accomplices
witnesses are
...,”
as a matter of he asked
but the constable was un-
Stegner
or that
law
Branson and
about,
violated
sure
speaking
what Branson was
against
the rule
by
verbal
intercourse
addressing
comment,
whom he was
his
sworn witnesses.
the content of the remainder of the state-
ment. The motion for mistrial was subse-
ante,
Branson,
only
As held
Stegner,
not
quently overruled.
accomplice
is an
as a matter of law.
Nevertheless, both were sworn witnesses
undisputed
It is
that both witness
instructed
the trial court not to discuss
placed
es were
under the rule before trial
testimony
any person
case or their
with
began and were reminded of the court’s
See,
their,
other than
generally,
trial counsel.
instructions not to discuss the case or
State,
(Tex.Cr.
Clayton v.
747
improper
process allegedly
due
caused
testify. Although we are told that Bran-
First, the record shows that
“group”
a
State action.
directed his
toward
son
comment
requested
on the basis of the
mistrial was
the
of
people,
any
record is devoid
evi
ante, rule,
violation of the
discussed
any
comprising
of those
the
dence
Second,
argued.
even
not on
now
the basis
testify.
to
group were also to be called
interpret
actual
if we
to
counsel's
were
to support
is there a shred of evidence
Nor
Honor,
request,
wit,
upon
“Your
to
based
appellant’s hypothesis
appeal regarding
on
presented
yesterday,
testimony
here
Stegner
“if
and Branson that
these wit
today,
testimony presented
here
we’ll
felt free
nesses
to discuss this matter while
to
ask the
to declare a mistrial”
Court
rule,
under the
is no limit as
there
to what
made,
specific
appel-
claim
include the
now
conspiratorial
they may
acts
have commit
mistrial
why
lant
still failed to
has
show
making
ted
their
En
before
statements.”
granted.
should have been
is
forcement
the rule within the sound
court,
trial court and will not
Upon
discretion
be
to
wit
proper motion
showing
if
disturbed absent a
of nesses
disclosed
defense
abuse
should be
stage
they
injury
that discretion or
to
defendant.
will be used
State at
State,
Young
State,
v.
v.
(Tex. of trial. See
547 S.W.2d
See Green
Appellant apparently would have hires another to kill. It seems to how- ever, require illogical rather court the State to call and examine would be legislatively penalty authorize the death prospective each witness listed and dis kill, for one hires another to ex- through discovery, strictly closed limit clude from that classification one that ac- ability strategy of the State to cepts killing purpose for the the burden prosecute by requiring the a criminal case essence, gaining monetarily. ap- fashion, prosecution, in to limit the some pellant simply hired herself to kill the de- prospective may number of witnesses who ceased, in that she assured her own mind That called to the witness stand. we monetarily benefit from her own in cannot and will not do. We have not she elected to com- conduct. Just because presumed require to antic past State herself, depend mit the murder rather than strategy, ipate every each and defensive it, should not make her upon another to do witnesses, post preclude any a list of then Now, penalty. to the death invulnerable flexibility process by absolutely in trial she isn’t. any potential whose disqualifying witness initially placed list. As is not on that name CLINTON, Judge, dissenting. Judge Douglas for this court the late wrote my to adhere to con- I would be content (Tex. Hoagland original curring opinion on submission require Crim.App.1973), “To the State ap- judges joined, but for an three which possible defense of an ac anticipate any approach pallingly determined revisionist furnish possible of all cused and to names opinion today: of the lead taken the writer court refuse to and have the witnesses previous opinions and reinterpret must two if their names were permit testify them to he himself another—all disavow impracti require not listed would be that is at come to a conclusion wrote—to 188, at undue burden.” Id cal and original opinions on submis- odds with our put to a Similarly, the State should not be sion, history. legislative as well compli higher where there is facial burden Legislature just what the trial court’s order To determine ance with a valid 19.03(a)(3), let us resort faith on intended there is no evidence of bad where § 200, Bill Acts legislative history of House compiling the list of part of the State p. 1122.* Leg., ch. showing 63rd how an prospective witnesses or a * Comment, 1974) some ("Comment'), overview, but be aware that Bill 200: For an see House pages are in in the Senate Journal Capital references to Legislative Attempt Pun- Reinstate (January Texas, L.Rev. 11 Houston ishment *35 up bring House there, Ogg moved 200, defined Senator passed
House Bill 1440; order, S.J., at regular the death capital offenses—for which Bill 200 out of three Comment, su- mandatory. penalty was of the bill he had a version he stated that 417, accompanying text. n. 58 and pra, at passed, whereas House had more like the of them. Ibid. for hire was not one Murder sponsoring one similar Meier was Senator Substitute, they to the Committee reached the Senate Com- When the bill different like to the two debate “would leading senators Jurisprudence, mittee on passed and Sen- The motion Obviously philosophies.” concept to put a different work. by explaining provisions opened of the debate Ogg related influenced ator adopted written the American Model Penal Code was version that whichever (ALI), a com- they drafted penal Law Institute proposed new into the be worked House Bill substitute for plete committee only to mur- code, apply and that both bills 200. der, killing hire.” including “if it is a at (b)(2) Ogg amendment Compare of the position did not take a on the ALI While person committed 1441-1442—“the capital S.J. did insist that the penalty, death it promise murder and for remuneration or be limited to sanction should offenses, 1(B)(3) and that for all other Section excluded remuneration” —with govern imposition. its procedures Substitute, certain The main dif- ante. Committee Commentaries, Part Model Penal Code Bill, that, if the like the House ference was gener- II, (1980), formulated a ALI at 3. It guilty Ogg would defendant jury found 13, 201.2, at definition of murder al § automatically assess the judge have mitigat- aggravating and a scheme argued comport- and he penalty, death in deter- to be considered circumstances deci- Supreme Court more with recent ed 210.6, at 107. mining the sentence § Pointing version was out that either sions. mur- aggravating circumstance is that One again, he noted that one tested sure to be pecuniary gain.” der committed “for is advantage to the Committee Substitute Id., at 110. law, basically like the Florida that “it is part first of what became under attack already is and the Florida law 19.03(a)(3) primarily by Sena- was crafted § system.” On motion federal court Meier, Creighton sponsors of tors Ogg proposal was Meier the by Senator hereto. attached Committee Substitute House S.J., 1442. Thus the at tabled. 1(B)(3) reads: Please notice that Section interred. version for re- person committed the murder “the comprehen Meier then offered Senator promise of remunera- or the muneration of a substi in the nature amendment sive nothing employing another to about tion”— Retain to the Committee Substitute. tute ALI remaining follow kill. The subsections provisions most concept and ing the basic (H) aggravating 210.6; lists subsection § 1257, latter, article amended both almost verbatim circumstances proposed Chapter 19 of the 1925 and P.C. (7) (one and item 210.6 ALI was omitted § senators Each included what penal code. inserted), is the murder one of which hire” calling the “murder were now gain.” pecuniary “for was committed (or (3) person committed provision, viz: reports essentially Journal The Senate commits) murder for remuneration proceedings. With and results motions nothing promise of remuneration —still germane to House matters respect to such S.J., kill, at employing another about see Senate May Bill 200 on article 37.071 in a new 1443—and (not (S.J.) those (1973) 1440-1453 Journal aggravat were Procedure of Criminal Code Comment, 62-66 of pages cited *36 argument, address that viz: legislative history From this the conclu- “(3) person inescapable committed the murder sion is that in context of subdi- (3) promise person for remuneration or the of remu- vision who “commits the mur- for employed by neration or der remuneration” must be hired another to commit preceding another to kill. The debate the murder for remuneration or the by Bracklein amendment is couched sena- promise of remuneration.” precisely tors in terms of “murder for S.J., at 1449. briefly Senator Bracklein hire,” and no other. Both Senator Brack- pun- stated that his amendment makes “the abundantly lein and Senator Meier made person respon- ishment the same for the plain that his amendment intended and for sible the commission of the crime. And designed place in the “hirer” the same person instigated that is the it ... who position Using as the the term “hiree.” person hired the who does the com- actual in “remuneration” the second clause is mission the murder.” Senator Meier symmetrical in with its use the first. it, explained further viz: way Judge That is Davis and I W.C. objection amendment cures an “[T]his Doty read it in 585 726 v. S.W.2d by that was raised earlier Senator Gam- (Tex.Cr.App.1979) panel opinions to be — mage ques- of Harris when he asked the sure, they withstood State’s motion for well, tion, you if have a murder hire for prosecutors rehearing. par did the who So penalty section ... for which the death ticipated preparing explanatory com applicable, you morally be how can 1974, Brancroft-Whitney ments for viz: excluding justify person doing who is pro- is intended to “The section [19.03] paying instigate in order to possibility punishment of vide the subjecting the man you crime when are death for the murder certain individu- actually carries it out ... to the who thought special pro- als to be need penalty. death Bracklein’s Senator tection and cases murder merely places in a murder amendment hire_ is Murder hire included or the hire classification man ... appears to a substantial there be because doing paying in woman who engaged in probability that those goes person out position same as a who pose continuing occupation and unac- carries out the crime. I think it is a and ceptable society.” threat to good amendment.” Statutes 2 Texas Annotated Penal Meier, acceptable to Being thus Senator 19.03, (Branch’s Ed.), p. 3rd 17. Those § S.J., adopted.. at 1449. amendment was jury and forms for indictment who write See, Id., 19.03, Meier Amendment was Shortly e.g., pp. charge do also. § Blackwell, 200, and, passed 19; Bill Texas adopted as House McCormick & 17 and Manual, 4.06, Trial 7 reading sent to the Criminal Forms and on third back 93.06, 37, and 8 Texas in Texas Practice refused to concur § House. The House Practice 412. requested a the Senate amendments conference; committee joint conference Supreme did the Court Jurek So original hybrid bill produced “a 2950, 49 L.Ed. 96 S.Ct. U.S. House and the amended ver- passed (1976), pointed out that the when it 2d 929 Comment, passed jury sion as the Senate.” to deter requires the Texas statute alia, is set out supra, mine, at 418. In Table there inter “whether [the crime] S.Ct., along Id., at at summary of each version committed hire[.]” for Professor David Crump, himself committee. by the conference 2955. As reconciliation Id., practitioner (3) scholar and remained intact. an astute Ibid. Subdivision organizations dedicated and, course, e.g., law on behalf And, ALI at n. 70. extreme written, I dissent first enforcement, opinion, lead has “The stat strict may capital leg- murder provides ute clear in the face of judicial revisionism (3) ways: .... in one of five committed intent, to distorition of the and then islative committed for ‘remuneration’ points of error other law to overrule Crump, Capital Murder: The Is hire[.]” upheld. of death is the sentence end that Texas, 14 Houston L.Rev. (March sues in 1977) 531, at 534. CAMPBELL, JJ., joins MILLER reasons, many more not For all those opinion. in this aspects directed to other articulated but
APPENDIX
“(C) In prosecuted all cases pursuant to section, this procedure set out herein H.B. No. 200 shall be followed in order to determine Cobb, Lombardino, By: et al imprisonment. sentence of death or life (In the Senate —Received from the House “(D) Upon adjudication conviction or 11,1973; May May 11,1973, read first time guilt (B) of a defendant under section Jurispru- and referred to Committee on Article, the court shall sepa- conduct a dence; 18, 1973, May reported adversely, sentencing proceeding rate to determine Substitute; Committee favorable whether the defendant should be sentenced 18, 1973, May printer.) sent to the to death imprisonment. or life pro- COMMITTEE SUBSTITUTE FOR H.B. ceeding shall be conducted in the trial court NO. 200 waived, jury, before the trial unless as soon practicable. If jury the trial has been By: Creighton, Meier pleaded waived or if the guilty, defendant A BILL TO BE ENTITLED sentencing proceeding shall be conduct- AN ACT jury empaneled ed pur- before for that relating punishment pose for murder un- unless waived the defendant. conditions; der certain circumstances and proceeding, may presented evidence repealing Article Penal Code Tex- any as to matter that the court deems as, 1925, amended; declaring sentence, relevant to and shall include mat- emergency. relating aggravating ters *38 mitigating circumstances in enumerated BE IT BY ENACTED THE LEGISLA- (H) (I) Any subsections and of this section. THE TURE OF STATE OF TEXAS: such evidence which the court deems to “Section 1. Punishment for murder probative received, may have value be re- “(A) Except provided (b) in Subsection gardless admissibility of its under the ex- Article, punishment of this the for murder evidence, clusionary provided rules of in penitentiary shall be confinement the opportuni- the defendant is accorded a fair any years life or for term of not less than ty any hearsay statements; to rebut and two. provided further that this subsection shall “(B) punishment for murder with not be construed to authorize the introduc- aforethought malice shall be death or im- tion of evidence secured in violation of prisonment for life if: the Constitution of the United States or “(1) person peace the murdered a officer the State of Texas. The state and the acting or fireman who was in the lawful permitted defendant or his counsel shall be discharge duty of an official and who the against present argument for or sen- peace defendant knew a officer or tence death. fireman; “(E) evidence, hearing all the the After “(2) person intentionally committed advisory jury shall deliberate and render an committing in the course of or the murder upon the fol- sentence to the court based attempting kidnapping, burgla- commit lowing matters: arson; rape, ry, robbery, forcible or “(1) aggravating cir- whether sufficient “(3) person committed the murder in exist as enumerated subsec- cumstances promise of remu- for remuneration or (H), tion neration; “(2) mitigating cir- sufficient whether “(4) the murder person committed in exist as enumerated subsec- cumstances attempting escape escaping while or (I), outweigh aggravating cir- tion which institution; penal from a exist, cumstances found to “(5) in person, incarcerated while “(3) on these considerations based institution, penal murdered another who sentenced defendant should be whether the operation penal employed in the of the institution; to life or death. enforcement
governmental function of laws. “(F) Notwithstanding the recommenda- heinous, weighing “(8) especially jury, the court after murder was
tion aggravating mitigating circum- atrocious or cruel. im- enter a sentence of life stances shall Mitigat- “(I) Mitigating circumstances— death, impos- if the court prisonment following: shall ing circumstances be death, forth in es a sentence it shall set “(1) significant no his- the defendant has findings writing upon its the sen- activity; tory prior criminal death is based as to the facts: tence of “(2) committed while the the murder was “(1) aggravating circum- that sufficient the influence of ex- defendant was under as enumerated in Subsection stances exist disturbance; treme mental or emotional (H), and “(3) participant the victim was “(2) mitigat- there are insufficient or consented to the defendant’s conduct circumstances, as enumerated Sub- act; (I), outweigh aggravating section In each case which “(4) accomplice circumstances. the defendant was sentence, the de- imposes court death person another the murder committed supported the court shall minor; termination of relatively participation was and his findings based by specific written of fact “(5) acted under extreme the defendant (H) upon the circumstances Subsections under the substantial domination duress or (I) upon and based the records person; of another sentencing proceedings. and the trial “(6) ap- capacity of the defendant to “(G) If does not make the find- the court criminality of his conduct or to preciate the sentence, ings requiring the death requirements of his conduct to the conform impose impris- life court shall sentence of substantially impaired; law was onment. “(7) age of the defendant at the time “(H) Ag- Aggravating circumstances — of the crime. gravating circumstances shall be limited to “(J) beyond find jury If the does not following: the murder was com- doubt that reasonable *39 “(1) by per- committed a or of the circumstances mitted under one imprisonment; son under sentence of (B) of conditions enumerated Subsection “(2) con- previously the defendant was Article, may defendant be convict- this felony of a victed of another murder or malice, murder, un- or without ed of involving the use or threat of violence to (A) any this Article or of der Subsection person; lesser included offense. other “(3) knowingly defendant created a “(K) or con- If of the circumstances one great many persons; death to risk of (B) of this in Subsection ditions enumerated indictment, the
“(4) charged in an the murder was committed while Article is engaged accom- a or was an shall informed that prospective jurors defendant was be of, attempt to commission or an plice imprisonment or of either death sentence commit, committing flight after or at- or mandatory on conviction for life is any kidnapping, bur- tempting to commit qualified to charged. person is No offense arson; rape, or glary, robbery, forcible under unless he states juror as a serve death mandatory penalty of that the oath “(5) for the the murder was committed not affect imprisonment for life will or avoiding preventing or law- purposes of fact. any issue deliberations cus- effecting escape an ful arrest or tody; “(L) Article: In this pecu- “(6) the murder was committed institu- means “(1) institution’ ‘penal niary gain; supervision operated by or under tion or of Corrections Department of the Texas to dis- “(7) committed the murder was jail. regional or city, county, exercise rupt or hinder lawful Emergency Sec. 3. impor- Clause. The legislation tance and the crowded “(2) ‘peace person officer’ means a de- condition of the calendars both houses 2.12, by fined as such Article of Crim- Code emergency imperative create an and an Procedure, 1965, inal as amended. public necessity constitutional rule “(3) person employed ‘fireman’ means a requiring bills to be read on three several engaged by county, city, or or a state days suspended, in each house be and that municipality, public or in con- subdivision this Act take effect and be in froce [sic] fighting extinguishing nection with the passage, from and after its and it is so of fires. enacted. “(M) judgment of conviction and * * * * * * subject sentence of death shall to auto- be Austin, Texas by Ap- matic review Court of Criminal (60) peals sixty days of Texas within after 18, May sentencing certification court of the Hobby Hon. William P. entire record unless time is extended an President of the Senate (30) period thirty additional not to exceed Sir: days by Appeals the Court Criminal good cause shown. Such review the We, Jurisprudence, your Committee on Appeals priori- Court of Criminal shall have 200, which was referred H.B. No. have had cases,
ty other and shall heard over all consideration, and I am same under promulgated by in accordance with rules report instructed to back Senate Appeals.” the Court of Criminal pass it do with the recommendation that printed. and be 1, Chap- 1. Article 1257 of Section
Sec. 274, Regu- Legislature, Acts of the 40th ter Herring, Chairman (Article Session, 1927, as amended lar ANALYSIS OF CONFERENCE COMMIT- Code), repealed.
Vernon’s Texas Penal TEE REPORT H.B. NO. 200 any pro- If Severability Sec. 2. Clause. of H.B. No. Because the structure application thereof of this Act or the vision passed passed as it as it the House and any person or circumstance is held inval- parallel, section-by-section Senate is not id, invalidity such shall not affect other following analysis possible. is not provisions applications of the Act which compares the differences in the Senate and pro- given can be effect without invalid House versions and shows how the Confer- application, and to this end the vision or adjusts dif- Report these ence Committee provisions of this Act are declared to be ferences. severable. House Conference Committee
Senate *40 pen- for death Adopted Provides alty only pen- Senate version 1. Provides for death imprison- alty or life ment Not Adopted version covered Applies person who Senate 2. to hires murderer Not covered by Adopted House version Applies bombs 3. to murders not defined Fireman Youth Council Adopted House version 4. Definition of fireman 5. not in- Adopted House version Youth Includes Texas cluded in definition of Council institution Adopted Not covered incorporate Senate version to 6. Provision penalty into new death Penal Code Not covered Adopted Senate version of Crimi- 7. Amended Code nal Procedure to abolish notice of intent death to seek Senate Conference Committee House Adopted 8. Code House covered Amended of Crimi- version Not permit capital Procedure nal to jury waiver of case Amended Code of Crimi- nal Procedure to mandatory 9. Reduced standards from Senate number Death provide jury standards sideration con- version penalty covered; au- advisory jury depends 10. Provided Death or life on Not tomatic death guilty if penalty; jury’s answers to issues verdict judge assessment provision: Adopted date Senate version Not covered Effective existing amendment Penal Code un- effective til Penal new Code takes effect; expires then Pe- amendment nal Code new applies Code,
TEAGUE, Judge, dissenting. promise Penal of remuneration.” 19.03(a)(3). for certain We know § futility This of statu- case illustrates the Legislature pro- to catch intended this law tory seems to me a construction what hit men and those who hire them. fessional Today particularly gripping way. de- we legislative pertinent this because We know Beets, rehearing Betty Lou cide on materials, including record- audio reference murderess, may put to death hearings concerning the ings committee submission, original Texas. On State of statute, invariably to it as the “mur- refer long ago, majority not of this Court held fact, these section. der-for-hire” The difference between then otherwise. in this always only refer sources nothing absolutely and now is more than suggest, None of them ever language. protean regard- opinion judges of a few way, that even in the most attenuated meaning English word—“re- representative, let individual senator or in- Relatively muneration.” harmless and whole, it in Legislature as a had alone the itself, significant in this word and the sense professional proscribe anything mind but it, Legislature meant to use is which our Thus, question whether assassination. Betty Lou life the thread which Beets’s is else in fact proscribe anything it does hangs. might first more difficult than at somewhat I mean to don’t be maudlin about this. get any appear. it doesn’t easier. And Ms. evidently greedy Beets is and insensi- Code, Penal into The Texas killer, tive the kind of succubus who has codified, statute has been admonishes managed capture imagina- romantic provisions, construe its courts to tion of Americans modem cinematic such “strictly,” “according import to the fair “Body classics as Heat” and “Black Wid- terms, promote justice of their and ef- her, sympathy ow.” I have little nor objectives code.” fect the Penal overly Leg- would it alarm me much if the 1.05(a). Code, likely quarrel No one § islature had decided all such criminals *41 ideological generalities this popular, I put should to death. have diffi- be What especially helpful they but aren’t as tools culty believing Legislature is that the has statutory are ad- construction. We also already this in fact. decided much of Construction vised that the Code eligible We statute Code) have a that makes (Chapter Act 311 of the Government penalty any person death who commits applies interpretation to of the Penal Code. promise Code, 1.05(b). per- “murder for or the remuneration Penal A brief look at § therefore, is, employs another to tinent sections of the former remuneration in commit the murder for remuneration or the order. According Act, to the paid and is one for a suffering.” loss or “[w]ords On the
phrases shall be read in context and con- contrary, says the Penal Code nothing according grammar strued to rules of paying, compensating, about or remunerat- usage.” Code, common Government ing anyone for a loss or suffering. Un- Courts, construing statutes, 311.011. in § law, expressed der our the clearly import permitted consider, are also among to other is, paraphrase “remuneration” to things, “(1) object sought to be at- majority, paid one for a murder. tained; (2) circumstances under which the Obviously, death, murder is death is a enacted; (3) legislative statute was history; life, loss of and loss of typically life causes (4) statutory provi- common law or former suffering. some But these trivial truths do sions, including laws on the same or similar not authorize the conclusion pay- that a (5) subjects; consequences particular of a ment for the loss of life is tantamount to a construction; (6) administrative construc- payment Surely profession- for murder. statute; (7) tion of the (caption), title al hit expect man does not to pay- receive preamble, emergency provision.” ment for if services rendered his mark is Code, Government Nothing 311.023. § by lightning. gets struck only He remun- else in the Code Construction Act seems killing, erated for merely for the death remotely pertinent present even in- of his Similarly, intended victim. insurance quiry. companies pay death benefits for the loss previously, As observed we haven’t a life; they don’t remunerate murder. Legislature clue whether intended may hoped Ms. Beets expect- have or even “murder for remuneration” to denote more payment ed to receive for the death of her professional than assassination. And to its husband, surely possibili- strains the majority pretend credit the doesn't even English ordinary say ties of that she Legislature know what meant. The expected murdering to be remunerated for during statute was enacted the rush to view, my him. context of punishment capital reestablish in Texas af- 19.03(a)(3), plain language if not its § Supreme ter the Court United States grammatical structure, compels a conclu- declared it unconstitutional 1972. It was sion contemplated by that the remuneration designed one of five sections to narrow the payment equivalent our law is the of an death-eligible class of murderers. No oth- person murder. specific objective apparent er on the stat- that, sketchy Having perhaps ute’s face or from a it is review of its said best not legislative history. prior point. Arguments law of homi- belabor the about lan- provisions meaning go cide Texas did not include guage and the tend to words Neither, relating appar- remuneration. Although stylists some are forever. England. ently, did the common law of to the richness of our lan- more sensitive promis- Consequently, being there no other others, guage are the touchstone in than upon to determine the basis legal always should some construction “remunerate,” meaning of we are more or speech, common denominator of that which obliged up lexicogra- less to leave it to the greatest comprehensible is most phers at Merriam-Webster. “re- number. Subtle differences between munerate,” “recompense,” “compensate,” suppose I it should After this is as be. “pay,” and a host of other words that do all, usage,” and we must look for “common English much the same work are less Third New International Dictio- Webster’s ordinary important than the sense which nary sources on is one of the most reliable reasonably intend their words to speakers therefore, that, I, accept subject. Because, in of our the case be understood. usage, the word “remunerate” common dilemma, know and can’t present we don’t (a pay equivalent person) means “to an Legislature actually find out what service, expense.” What is for a loss meant, is to estimate recourse our best majority’s me is con- inconceivable to English might average speaker of that, Code, Penal what clusion in this case under or the by “murder for remuneration 19.03(a)(3), import of remuneration mean “the § *42 language bemg scope statutory in the context of than the promise of remuneration” however, hypothesize only single ordinary Again, To a discourse. we construed. question. the I now inclined to hopelessly example, divided on am believe are warning” given majority would understand such majority The the “fair gain person murder for a speech opinion inclusive of a in this cause that who “as con- profit, competitor actor’s unilateral or for where murders a business rival of the victim.” capital duct results death a of- employment has committed Opinion, p. significant 722. A minori- Slip may many other I fear there be fense. including myself, not understand ty, disturbing categories of “murder equally of, way. remuneration,” it in this yet undreamed for Legislature punish meant to that the never for Consequently, let me concede a mo- with death. is, statutory language in- ment that deed, reading given by susceptible of the it suggest legislative I mean to don’t all, my After majority of this Court. important most be last or intent should competent speakers of the brethren are all statutory construction. consideration assume, likewise, English language. I specific pur- Legislature’s The that our fact willing acknowledge, least they at are to this pose always almost inaccessible is argument, of that those who purposes for nearly else in Texas everyone Court and upon disagree question them this also meaningful disqualifies as a crite- largely it English. competent speakers include But is anyway. rion when there serious inescapable The conclusion is that the lan- law, penal scope of a doubt about itself, guage statute when con- even public, or sub- of its notice to fairness usage according to strued common meaning of disagreement stantial about context, vague. read is It means some- is, view, terms, in my its broad construction things people. different what different especially This is so the case ill advised. circumstances, Under such some additional suppose I penalty laws. what our death upon heavily bear this considerations in this cause is that bothers me the most statutory Court’s construction. task Court, knowing be there to majority of this disagreement mean- about the substantial First, express purpose of our it is the stat- of “remuneration” and about the Code, any penal it Penal as must for be taken atti- appears, it has ute in which statute, give warning fair is “to what doubt, kill.” I had tude “when in prohibited consequences viola- statutory con- always thought that sound Code, 1.02(2). tion”. Almost half Penal § required good judicial sense struction and Court, this than judges on and more opposite result. exactly past, at times in would not half various reading statutory language, report, dissent, Therefore, this respectfully I Ms. that the conduct for which Beets interpreted singular not be dissent should capital offense. convicted in this cause is a agree remainder I with the to mean that I have can he serious doubts whether opinion. majority provides notice of its said a law fair
import nearly fifty percent of even when APPELLANT’S DENIAL OF FROM sophisticated readers wouldn’t the most FOR REHEARING MOTION way it now it in the is have understood rehearing has Appellant’s motion being construed. without written by this Court been denied for two to this action construing opinion. I dissent Second, consequence my dis- expressed first broadly majority does reasons. as the this statute motion opinion on the State’s senting greatly expand the class in this is to cause not, therefore, re- rehearing will under circum- death-eligible murderers appel- concerns peated here. second Legis- it isn’t stances clear where an extraneous evidence of Indeed, claim that lant’s such result. lature intended trial. at improperly admitted gain offense was prof- category of “murder new erroneously Court is, in She maintains more uncertain anything, it” if even *43 point overruled her third of error Identity being on re- both a material and dis- hearing, I agree. now puted case, issue in the we find that regarding circumstantial evidence appellant’s Two of former husbands killing [appellant’s of Barker first hus- yard. were found in buried her Both had it probable made more than not the band] through been shot the head with a .38 appellant triggerperson was the weapon, evidently caliber asleep, while and, such, instant offense it was rele- both were interred in sleeping bags. For vant, reasons, these and other the murders seem to have been the single handiwork of a p. 725. person or of group persons. the same leap. This is an majority incredible cause, appellant the instant prose- was tells us neither what this circumstantial only cuted for the murder of her second nor, evidence is more particularly, it how However, husband. permit- the State was renders probable proposition more that ted objection over to offer evidence that appellant, Branson, and not committed the her first husband had also been murdered Taking actually murder. a few moments yard. buried analysis do indicated discloses the The State contends this evidence majority opinion. inferential flaw in the was admissible show a common scheme syllogism expressing logical relevan- design or and to rebut defensive issue cy in this context is as follows: relating to identification of the killer. The (1) Person X committed offense 0 n jury instructed, however, to consider offense; where is the extraneous Oi only purpose the evidence for the latter (2) by Offense was committed Oi determining identity. murderer’s A person O2, same who committed where majority this Court concluded that cross- offense; charged is the by examination of Robbie Branson counsel O2 (3) Therefore, person X committed of- suggested jury
for the defense fense O2. Branson, appellant, and not the committed the murder for which (1) (2) premises true, If only are Further, charged in this majori- cause. true, (3) if they are both conclusion follows ty by held that other evidence offered logical as a matter of inference. There- at trial intimated that Branson fore, proof extraneous offense will equal superior opportunity, “had mo- be relevant the accused commit- whether background tive and criminal to commit the charged only ted the offense if evidence is appellant[.]” disagree deed as did I do not matter, support, empirical offered to as an with these conclusions. premises. Consequently, the truth of both proof may before of the extraneous offense However, only begins inquiry. this lawfully objection, be admitted there over point We at this know there legit- must be evidence the record imately jury for before the consideration rationally inferred that the ac- can be question whether the deceased this did, fact, cused commit the extraneous by by cause killed commit- admissible, offense and that such offense was To there- Robbie Branson. be fore, person ted the same who committed the the evidence here at issue must be charged offense. By question. relevant to this “relevant” mean, course, we that the evidence must premise second is We have held that probable proba- tend to make more or less enough purposes well established than it would without the evidence ble be relevancy is when it shown that two Branson, ap- appellant, and not killed are, balance, grossly crimes similar and And at this pellant’s second husband. it is place. remotely separated in time or point part company majority I adequate previously, As noted there opinion. cause. proof premise of this the instant premise first Here, also held that simply concludes without We have the Court and convine- must established clear argument that: additional managed to again, Court has mg culpability. Once accused’s evidence ostensibly provide with an bench and bar precise, of the ac- To be more evidence concerning the law of opinion authoritative to the extraneous of- culpability cused’s *44 effectively evis- extraneous offenses which generally than the fense must be better requirement such the that cerates erstwhile culpability of showing his evidence to a in relevant material issue evidence be Otherwise, charged evidence of offense. me that so little It astonishes case. merely redundant the extraneous offense precise goes articulating the thought into identity. question on the upon manner in which such evidence bears cause, nothing In instant I can find case, legitimate of a and that so issues greater to indicate a likelihood record passes process. much wind that the extraneous offense was committed cogently demonstrate majority cannot it appellant than that was committed concerning cause that evidence instant might consist of Branson. Such evidence appellant’s first the murder of husband tending independent proof to show either way to any meaningful proof contributed that committed the extraneous Branson, she, mur- and not Robbie For ex- or that Branson did not. offense it Accordingly, husband. dered her second ample, Branson had it been shown that and should have been was not relevant young too committed the extrane- have excluded. offense, living or he ous had been reasons, For these and for reasons committed, elsewhere when it was such expressed my dissenting opinion that, likely it evidence would render more rehearing, I dissent to State’s motion for Branson, for- between opinion appel- without written denial offense, mer committed the extraneous rehearing in this cause. lant’s motion for But charged offense as well. therefore evidence, it is no more without some such Branson,
likely appellant, com- and not offense than it is
mitted extraneous Branson, committed appellant, and not charged offense. differently,
To put the matter little case, in this given majority’s rationale POWELL, Appellant, David Lee prosecute had elected to Branson the State murder, surely have it been permitted by to offer the extra- this Court Texas, Appellee. STATE exactly him against neous offense No. 67630. against it was offered purpose same Texas, Appeals Criminal should Court appellant. This circumstance alone En Banc. beyond any question that the ex- convince it simply did not render traneous Jan. probable it would be more less than evidence that either without the the murder. committed Branson
short, resolve the help did not at all to no it because there was
question of who did support inference evidence or
better Branson,
premise appellant, murder. Conse-
committed the extraneous merely proof of the latter was
quently, identity, and thus on the issue
redundant in the instant independent relevance
had no
cause. notes Sub in the Committee ing circumstances However, proceedings were supra). was commit stitute, e.g., the murder transcription of that taped and there S.J., 1445- gain,” at pecuniary ted “for interpolat- portions will be tape. Relevant Journal. the Senate ed with appended hereto. working legislative materials See also error. Gammage argued given aggravating Senator the Florida scheme of versus miti- gating “murder for hire” could circumstances was classification there abandoned— gone aggravating was the circumstances justification excluding be no moral pecuniary that murder committed “for person who hired the killer. Senator gain.” Bracklein offered a floor amendment