Beets v. State

TEAGUE, Judge,

dissenting.

This case illustrates the futility of statutory construction in what seems to me a particularly gripping way. Today we decide on rehearing that Betty Lou Beets, a murderess, may be put to death by the State of Texas. On original submission, not long ago, a majority of this Court held otherwise. The difference between then and now is absolutely nothing more than the protean opinion of a few judges regarding the meaning of an English word — “remuneration.” Relatively harmless and insignificant in itself, this word and the sense in which our Legislature meant to use it, is the thread by which Betty Lou Beets’s life hangs.

I don’t mean to be maudlin about this. Ms. Beets is evidently a greedy and insensitive killer, the kind of succubus who has managed to capture the romantic imagination of Americans in such modem cinematic classics as “Body Heat” and “Black Widow.” I have little sympathy for her, nor would it alarm me overly much if the Legislature had decided that all such criminals should be put to death. What I have difficulty believing is that the Legislature has already decided this in fact.

We have a statute that makes eligible for the death penalty any person who commits “murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.” Penal Code, § 19.03(a)(3). We know for certain that the Legislature intended this law to catch professional hit men and those who hire them. We know this because pertinent legislative reference materials, including audio recordings of committee hearings concerning the statute, invariably refer to it as the “murder-for-hire” section. In fact, these sources always and only refer to it in this language. None of them ever suggest, even in the most attenuated way, that any individual senator or representative, let alone the Legislature as a whole, had it in mind to proscribe anything but professional assassination. Thus, the question whether it does proscribe anything else in fact is somewhat more difficult than might at first appear. And it doesn’t get any easier.

The Texas Penal Code, into which this statute has been codified, admonishes the courts to construe its provisions, not “strictly,” but “according to the fair import of their terms, to promote justice and effect the objectives of the code.” Penal Code, § 1.05(a). No one is likely to quarrel with ideological generalities this popular, but they aren’t especially helpful as tools of statutory construction. We are also advised that much of the Code Construction Act (Chapter 311 of the Government Code) applies to interpretation of the Penal Code. Penal Code, § 1.05(b). A brief look at pertinent sections of the former is, therefore, in order.

*756 According to the Act, “[w]ords and phrases shall be read in context and construed according to rules of grammar and common usage.” Government Code, § 311.011. Courts, in construing statutes, are also permitted to consider, among other things, the “(1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision.” Government Code, § 311.023. Nothing else in the Code Construction Act seems even remotely pertinent to the present inquiry.

As observed previously, we haven’t a clue whether the Legislature intended “murder for remuneration” to denote more than professional assassination. And to its credit the majority doesn't even pretend to know what the Legislature meant. The statute was enacted during the rush to reestablish capital punishment in Texas after the Supreme Court of the United States declared it unconstitutional in 1972. It was one of five sections designed to narrow the class of death-eligible murderers. No other specific objective is apparent on the statute’s face or from a review of its sketchy legislative history. The prior law of homicide in Texas did not include provisions relating to remuneration. Neither, apparently, did the common law of England. Consequently, there being no other promising basis upon which to determine the meaning of “remunerate,” we are more or less obliged to leave it up to the lexicographers at Merriam-Webster.

I suppose this is as it should be. After all, we must look for “common usage,” and Webster’s Third New International Dictionary is one of the most reliable sources on this subject. I, therefore, accept that, in common usage, the word “remunerate” means “to pay an equivalent to (a person) for a service, loss or expense.” What is inconceivable to me is the majority’s conclusion in this case that, under Penal Code, § 19.03(a)(3), “the import of remuneration is one paid for a loss or suffering.” On the contrary, the Penal Code says nothing about paying, compensating, or remunerating anyone for a loss or a suffering. Under our law, the clearly expressed import of “remuneration” is, to paraphrase the majority, one paid for a murder.

Obviously, murder is death, death is a loss of life, and loss of life typically causes some suffering. But these trivial truths do not authorize the conclusion that a payment for the loss of life is tantamount to a payment for murder. Surely a professional hit man does not expect to receive payment for services rendered if his mark is struck by lightning. He only gets remunerated for killing, not merely for the death of his intended victim. Similarly, insurance companies pay death benefits for the loss of life; they don’t remunerate murder. Ms. Beets may have hoped or even expected to receive payment for the death of her husband, but it surely strains the possibilities of ordinary English to say that she expected to be remunerated for murdering him. In my view, the context of § 19.03(a)(3), if not its plain language and grammatical structure, compels a conclusion that the remuneration contemplated by our law is the payment of an equivalent to a person for murder.

Having said that, perhaps it is best not to belabor the point. Arguments about language and the meaning of words tend to go on forever. Although some stylists are more sensitive to the richness of our language than are others, the touchstone in legal construction should always be some common denominator of speech, that which is most comprehensible to the greatest number. Subtle differences between “remunerate,” “compensate,” “recompense,” “pay,” and a host of other words that do much the same work in English are less important than the sense in which ordinary speakers reasonably intend their words to be understood. Because, in the case of our present dilemma, we don’t know and can’t find out what the Legislature actually meant, our best recourse is to estimate what an average speaker of English might mean by “murder for remuneration or the *757 promise of remuneration” in the context of ordinary discourse. Again, however, we are hopelessly divided on the question. The majority would understand such speech “as inclusive of a murder for gain or profit, where the actor’s unilateral conduct results in the death of the victim.” Slip Opinion, p. 722. A significant minority, including myself, would not understand it in this way.

Consequently, let me concede for a moment that the statutory language is, indeed, susceptible of the reading given it by a majority of this Court. After all, my brethren are all competent speakers of the English language. I assume, likewise, they are willing to acknowledge, at least for purposes of argument, that those who disagree with them upon this question also include competent speakers of English. The inescapable conclusion is that the language of the statute itself, even when construed according to common usage and read in context, is vague. It means somewhat different things to different people. Under such circumstances, some additional considerations bear heavily upon this Court’s task of statutory construction.

First, it is the express purpose of our Penal Code, as it must be for any penal statute, “to give fair warning of what is prohibited and of the consequences of violation”. Penal Code, § 1.02(2). Almost half the judges on this Court, and more than half at various times in the past, would not report, on reading the statutory language, that the conduct for which Ms. Beets was convicted in this cause is a capital offense. I have serious doubts whether it can he said that a law provides fair notice of its import when nearly fifty percent of even the most sophisticated readers wouldn’t have understood it in the way it is now being construed.

Second, the consequence of construing this statute as broadly as the majority does in this cause is to greatly expand the class of death-eligible murderers under circumstances where it isn’t clear that the Legislature intended such a result. Indeed, the new category of “murder for gain or profit” is, if anything, even more uncertain in scope than the statutory language bemg construed. To hypothesize only a single example, I am now inclined to believe from the “fair warning” given by the majority opinion in this cause that a person who murders a business competitor or rival for employment has committed a capital offense. I fear there may be many other equally disturbing categories of “murder for remuneration,” as yet undreamed of, that the Legislature never meant to punish with death.

I don’t mean to suggest that legislative intent should be the last or most important consideration in statutory construction. The fact that our Legislature’s specific purpose is almost always inaccessible to this Court and to nearly everyone else in Texas largely disqualifies it as a meaningful criterion anyway. But when there is serious doubt about the scope of a penal law, the fairness of its notice to the public, or substantial disagreement about the meaning of its terms, broad construction is, in my view, ill advised. This is especially so in the case of our death penalty laws. I suppose what bothers me the most in this cause is that a majority of this Court, knowing there to be substantial disagreement about the meaning of “remuneration” and about the statute in which it appears, has taken the attitude that “when in doubt, kill.” I had always thought that sound statutory construction and good judicial sense required exactly the opposite result.

Therefore, I respectfully dissent, but this singular dissent should not be interpreted to mean that I agree with the remainder of the majority opinion.

FROM DENIAL OF APPELLANT’S MOTION FOR REHEARING

Appellant’s motion for rehearing has been denied by this Court without written opinion. I dissent to this action for two reasons. The first is expressed in my dissenting opinion on the State’s motion for rehearing and will not, therefore, be repeated here. The second concerns appellant’s claim that evidence of an extraneous offense was improperly admitted at trial. She maintains that this Court erroneously *758 overruled her third point of error on rehearing, and I now agree.

Two of appellant’s former husbands were found buried in her yard. Both had been shot through the head with a .38 caliber weapon, evidently while asleep, and both were interred in sleeping bags. For these and other reasons, the murders seem to have been the handiwork of a single person or of the same group of persons. In the instant cause, appellant was prosecuted only for the murder of her second husband. However, the State was permitted over objection to offer evidence that her first husband had also been murdered and buried in the yard.

The State contends that this evidence was admissible to show a common scheme or design and to rebut a defensive issue relating to identification of the killer. The jury was instructed, however, to consider the evidence only for the latter purpose of determining the murderer’s identity. A majority of this Court concluded that cross-examination of Robbie Branson by counsel for the defense suggested to the jury that Branson, and not the appellant, committed the murder for which appellant was charged in this cause. Further, the majority held that other evidence offered by the appellant at trial intimated that Branson “had an equal or superior opportunity, motive and criminal background to commit the deed as did appellant[.]” I do not disagree with these conclusions.

However, this only begins the inquiry. We know at this point that there was legitimately before the jury for consideration the question whether the deceased in this cause was killed by the appellant or by Robbie Branson. To be admissible, therefore, the evidence here at issue must be relevant to this question. By “relevant” we mean, of course, that the evidence must tend to make more probable or less probable than it would be without the evidence that appellant, and not Branson, killed appellant’s second husband. And it is at this point that I part company with the majority opinion.

Here, the Court simply concludes without additional argument that:

Identity being both a material and disputed issue in the case, we find that the circumstantial evidence regarding the killing of Barker [appellant’s first husband] made it more probable than not the appellant was the triggerperson in the instant offense and, as such, it was relevant,

p. 725.

This is an incredible leap. The majority tells us neither what this circumstantial evidence is nor, more particularly, how it renders more probable the proposition that appellant, and not Branson, committed the murder. Taking a few moments actually to do the indicated analysis discloses the inferential flaw in the majority opinion.

The syllogism expressing logical relevancy in this context is as follows:

(1) Person X committed offense 0⅛ where Oi is the extraneous offense;

(2) Offense Oi was committed by the same person who committed O2, where O2 is the charged offense;

(3) Therefore, person X committed offense O2.

If premises (1) and (2) are true, but only if they are both true, conclusion (3) follows as a matter of logical inference. Therefore, proof of the extraneous offense will be relevant to whether the accused committed the charged offense only if evidence is offered to support, as an empirical matter, the truth of both premises. Consequently, before proof of the extraneous offense may lawfully be admitted over objection, there must be evidence in the record from which it can rationally be inferred that the accused did, in fact, commit the extraneous offense and that such offense was committed by the same person who committed the charged offense.

We have held that the second premise is established well enough for purposes of relevancy when it is shown that the two crimes are, on balance, grossly similar and not remotely separated in time or place. As noted previously, there is adequate proof of this premise in the instant cause. We have also held that the first premise must be established by clear and convine- *759 mg evidence of the accused’s culpability. To be more precise, evidence of the accused’s culpability as to the extraneous offense must generally be better than the evidence showing his culpability of the charged offense. Otherwise, evidence of the extraneous offense is merely redundant on the question of identity.

In the instant cause, I can find nothing in the record to indicate a greater likelihood that the extraneous offense was committed by appellant than that it was committed by Branson. Such evidence might consist of independent proof tending to show either that appellant committed the extraneous offense or that Branson did not. For example, had it been shown that Branson was too young to have committed the extraneous offense, or that he had been living elsewhere when it was committed, such evidence would render it more likely that, as between appellant and Branson, the former committed the extraneous offense, and therefore the charged offense as well. But without some such evidence, it is no more likely that appellant, and not Branson, committed the extraneous offense than it is that appellant, and not Branson, committed the charged offense.

To put the matter a little differently, given the majority’s rationale in this case, had the State elected to prosecute Branson for the murder, it surely would have been permitted by this Court to offer the extraneous offense against him for exactly the same purpose as it was offered against appellant. This circumstance alone should convince beyond any question that the extraneous murder simply did not render it more or less probable than it would be without the evidence that either appellant or Branson committed the murder. In short, it did not help at all to resolve the question of who did it because there was no better evidence or inference to support the premise that appellant, and not Branson, committed the extraneous murder. Consequently, proof of the latter was merely redundant on the issue of identity, and thus had no independent relevance in the instant cause.

Once again, this Court has managed to provide bench and bar with an ostensibly authoritative opinion concerning the law of extraneous offenses which effectively eviscerates the erstwhile requirement that such evidence be relevant to a material issue in the case. It astonishes me that so little thought goes into articulating the precise manner in which such evidence bears upon the legitimate issues of a case, and that so much wind passes in the process. The majority cannot cogently demonstrate in the instant cause that evidence concerning the murder of appellant’s first husband contributed in any meaningful way to proof that she, and not Robbie Branson, murdered her second husband. Accordingly, it was not relevant and should have been excluded.

For these reasons, and for the reasons expressed in my dissenting opinion of the State’s motion for rehearing, I dissent to the denial without written opinion of appellant’s motion for rehearing in this cause.