Beets v. State

CLINTON, Judge,

concurring.

V.T.C.A.Penal Code, § 19.03(a)(3) provides that a person commits capital murder if he murders under § 19.02(a)(1) and

“the 'person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.” 1

Our interest is in that statutory language underscored above, for the indictment tracked it and added “namely: money from the proceeds of retirement benefits [et cet-era].” Though appellant challenges the indictment for failure to allege “every constituent element of the offense,” it avers enough to admit proof on a theory that she committed the murder for hire by or as a “promisee” of remuneration from an unnamed person who was not barred from receiving part of the proceeds alleged. When there is no evidence of a hiring or of a “promisor,” however, our immediate concern is whether the evidence is sufficient to sustain allegations in the indictment.

Here, sufficiency depends on meaning of the first part of § 19.03(a)(3). Facially, it is an offense for a person to commit murder for remuneration or on a promise of remuneration. Since a person cannot at once be both a “promisor” and “promisee,” the statute naturally contemplates another person to make the promise of remuneration. Read in toto, just as there must be a “promisor” to promise remuneration, so also there must be a “remunerator” to remunerate. Thus, the first part denounces murder by one who receives from or is promised remuneration by another. 2

The question raised here is whether the statute also may be read to dispense with a “promisor” or “remunerator.” That question has not been definitively answered by this Court. What few opinions it has rendered touching any aspect of this offense include:

Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977); Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Doty v. State, 585 S.W.2d 726 (Tex.Cr.App.1979); Lindsay v. State, 588 S.W.2d 570 (Tex.Cr.App.1979); O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979); McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980); Johnson v. State, 650 S.W.2d 784 (Tex.Cr.App.1983); Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985).

Hobbs, Brown, Lindsay and Johnson implicate the second or “employing” part in a context of attempt, conspiracy or solicitation. Doty is also an attempt to hire situation, but it does broadly state: “Murder for remuneration under Sec. 19.03(a)(3) involves, at a minimum, three individuals: (1) principal, (2) agent, and (3) victim.” Granger involved an “agent” who killed for remuneration or promise of remuneration, but the issue on appeal is sufficiency of corroboration of accomplice testimony. Thus we are left with O’Bryan, McManus and Duff-Smith .

The O’Bryan opinion begins, “This is an appeal from a conviction for capital murder, V.T.C.A.Penal Code, Sec. 19.-03(a)(3). Appellant was convicted of the murder of his eight year old son ... for remuneration or the promise thereof, namely, the proceeds from a life insurance policy on the life of [his son].” The latter sentence must be regarded as a statement of fact rather than a conclusion of law, since an issue as to proper construction of the underscored part of the statute was not raised by appellant nor addressed by the Court.

*729 In McManus prosecution was based on the first part of Article 19.03(a)(3). At the outset the Court similarly stated, “Appellant was convicted of acting with Paula Cantrell Derese to cause the death of Paul Cantrell for remuneration or the promise thereof, which was to be money from the proceeds of life insurance and the estate of Paul and Mary Cantrell.” That is a paraphrase of actual language of the indictment, viz:

“[Accused] did then and there unlawfully, intentionally and knowingly, acting as a party with Paula Cantrell Derese and other persons to the Grand Jury unknown, cause the death of Paul Harvey Cantrell by [specified means], and said murder was committed for remuneration and the promise of remuneration, namely, money from the proceeds of life insurance and the estate of Paul Harvey Cantrell and Mary Bright Cantrell.”

Id., at 514 . Responding to a claim that the indictment failed to give enough notice in certain particulars, the Court found the wording did not suggest “that appellant employed another to do the killing or that he promised another person compensation for doing it; it clearly alleges that appellant committed the murder and that he was promised compensation by another to do it.” Id., at 515 . (Emphasis in original). After further discussing its allegations, the Court concluded:

“The gravamen of the capital murder offense charged in this indictment, of which appellant was given notice, was his having been promised compensation by Paula to kill the victims and on that basis, having killed them.”

Ibid. Thus, the accused in McManus was alleged to have committed murder on a promise of compensation by another “to do it,” and “on that basis,” having done it. Since his conduct comes directly within the first part of Article 19.03(a)(3), the concept that he acted as a “party” is superfluous.

The Court summarized the action in Duff-Smith as follows:

“Appellant was convicted, as a party, of murdering his mother_by strangling her with a panty hose for remuneration or the promise of remuneration, namely, proceeds from the estate of [his mother].”

However, the basis of prosecution was more complex: accused, acting with requisite intent, solicited et cetera another person, Walter W., to commit the offense; that person in turn solicited a third party who then hired a fourth person, and the latter actually strangled the victim. Id., at 27 .

The indictment charged two theories. First, that accused employed Walter to murder his mother “for remuneration and promise of remuneration, namely, money,” and Walter strangled her with pantyhose “for remuneration and promise of remuneration, namely money from [accused].” Second, that accused caused the death of his mother by strangling her with pantyhose and “said murder was committed for remuneration and the promise of remuneration, namely the proceeds of the estate of [his mother].” Id., at 33-34 .

At that point, the Duff-Smith opinion observes, “Though both paragraphs of the indictment charge capital murder under V.T.C.A.Penal Code, Sec. 19.03(a)(3), the theories behind the two paragraphs differ.” Id., at 34 . No authority is cited to validate the second theory under § 19.03(a)(3).

Paraphrased, the instruction authorizing the jury to convict required it to find that accused caused the death of his mother by strangling her with pantyhose “for remuneration or the promise of remuneration, namely, proceeds from the estate ... in that acting with specific intent [et cetera], [he] solicited, encouraged or directed Walter ... to commit this offense” and Walter then acted as a party with the third person who acted as a party with the fourth person who really did strangle the mother with pantyhose, “for remuneration or promise of remuneration, namely money....” From its view of that “party” instruction, the Court believed the State “ultimately proceeded under the theory embodied in the second paragraph of the indictment.” Ibid.

Given the facts of the matter, however, such a “party” formulation describes an *730 offense more akin to the second part of § 19.03(a)(3) than the first. “Employing” is disguised as “party,” just as “conspiracy” masked “employing” in Lindsay, supra, at 574 (Douglas, J., dissenting); Hobbs, supra, at 886, 887 . See Gamez v. State, 665 S.W.2d 124 (Tex.App.-San Antonio 1983), PDR granted on other grounds. 3

In this cause, however, appellant did the deed herself. There is no issue raised by evidence in the case that appellant committed the murder for hire by or as a “prom-isee” of remuneration from another party. All things considered, this is a question of first impression in this jurisdiction concerning the meaning and application of the statutory clause “the person commits the murder for remuneration or the promise of remuneration.”

The opinion Judge Teague has written for the Court satisfactorily demonstrates that the statute requires either that an accused kill for remuneration from a culpable “remunerator” or on a promise of remuneration by a culpable “promisor,” or that an accused employ another to kill for remuneration or a promise of remuneration. In short, be a “hired killer” or “hire a killer.”

One who kills with an expectation of pecuniary gain derived solely from a blameless source does not commit capital murder within the meaning and intendment of § 19.03(a)(3).

The evidence proves only that appellant voluntarily and intentionally killed her husband with just such an expectation. It does not show she did so for the requisite remuneration from or promise of remuneration by a culpable party. Therefore, she is not guilty of capital murder.

Accordingly, I join the judgment of the Court.

MILLER, CAMPBELL and WHITE, JJ., join in this opinion.

. All emphasis is mine throughout unless otherwise indicated.

. Forms for indictment and jury charge include the name of the "promisor” or “remunerator.” See, e.g., 2 Texas Annotated Penal Statutes (Branch’s 3rd Ed.) § 19.03, pp. 17 and 19; McCormick & Blackwell, Texas Criminal Forms and Trial Manual, § 4.06, 7 Texas Practice 37, and § 93.06, 8 Texas Practice 412. Likewise, they tire identified in some of the cases cited and discussed post.

. “The proof at trial showed that appellant hired Castro to murder the deceased and that Castro did in fact shoot the deceased with a gun. While appellant did not pull the trigger himself, clearly he is guilty of murder under the law of parties. Further, because of the proof of the murder contract and the payment of the money, appellant is also guilty of capital murder. TEX.PENAL CODE ANN. § 19.03 (Vernon 1974).”