Beets v. State

• Decision Date: 12 November 1987
• Docket Number: No. 69583,69583
• Parties: Betty Lou BEETS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 711

767 S.W.2d 711

Betty Lou BEETS, Appellant, v. The STATE of Texas, Appellee.

No. 69583.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 12, 1987.

Rehearing Granted Feb. 17, 1988.

On Rehearing Sept. 21, 1988.

Rehearing Denied Jan. 25, 1989.

Gilbert M. Hargrave, E. Ray Andrews, Athens, for appellant.

Billy M. Bandy, Dist. Atty., Athens, Robert Huttash, State's Atty., Matthew W. Paul, Asst., and Carl E.F. Dally, Sp. Asst. Pros. Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

Betty Lou Beets, the appellant, was convicted by a jury of committing the offense of capital murder of Jimmy Don Beets, who was then her lawful husband. It was alleged in the indictment that the appellant "did then and there, knowingly and intentionally cause[d] the death of an individual, namely, Jimmy Don Beets, by shooting him with a firearm, and the said murder was committed for remuneration and the promise of remuneration, namely: money from the proceeds of retirement benefits from the employment of Jimmy Don Beets with the City of Dallas, insurance policies on the said Jimmy Don Beets in which the [appellant] is the named beneficiary, and the estate of Jimmy Don Beets." ¹ After the jury found appellant guilty of the offense of capital murder, "as alleged in the indictment", ² it thereafter answered in the affirmative the special issues that were submitted to it pursuant to Art. 37.071, V.A.C.C.P. ³ Neither the appellant nor the State presented any testimony or evidence at the punishment stage of the trial; the State relying upon the evidence that had been presented at the guilt stage of the trial as the basis for the jury's answers to the special issues that were submitted at the punishment stage of the trial. Thereafter, the trial judge assessed the appellant's punishment at death. We reverse.

Appellant presents to us for review nine (9) "points of error," which comports with the new Texas Rules of Appellate Procedure, effective September 1, 1986. However, given the fact that notice of appeal occurred in this cause prior to September 1, 1986, her contentions should have been phrased as "grounds of error" and not "points of error." Therefore, we will review the contentions as "grounds of error" and not as "points of error." See and cf. Burdine v. State, 719 S.W.2d 309 (Tex.Cr.App., 1986). They are as follows: "(1) The first count of the indictment is deficient in that it does not allege every constituent element of the offense; (2) No evidence was offered to sustain the charge of murder for remuneration; (3) The trial court erred in admitting evidence that the accused had shot and killed another former husband, Doyle Wayne Barker; (4) There was insufficient evidence for a conviction of Capital Murder as the prosecution relied on accomplice testimony to prove both elements of the crime and said accomplice testimony was not supported by other evidence tending to prove the elements of the crime of Capital Murder; (5) It was error for the Trial Court not to grant the [appellant's] Motion for Change of Venue as it was clear from the evidence presented at the hearing of the motion that such a prejudice existed against the [appellant] in the community that a fair trial was precluded; (6) Alternatively, if it was not error for the Trial Court to grant the change of venue at the time of the hearing, it was error for the Trial Court to conduct the voir dire in the manner that it did; (7) It was error for the Trial Court not to grant a change of venue at the end of voir dire as the evidence gleaned from the examination of the potential jurors further supported the claim of the defendant that a fair trial could not be heard in Henderson County; (8) It was error for the Court not to grant the defendant's Motion for Mistrial after testimony revealed that the witnesses had been discussing their testimony with each other during the trial; (9) The prosecution's actions in subpoenaing approximately 90 witnesses while using only 20 deprived defendant of her right to effective counsel."

We will only review and decide appellant's grounds of error numbered 1, 2, and 4.

Because appellant challenges the sufficiency of the evidence in her grounds of error numbered 2 and 4, see ante, and because a challenge to the sufficiency of the evidence must be considered by this Court even if the conviction is reversed for an unrelated reason or reasons, see Selman v. State, 663 S.W.2d 838 (Tex.Cr.App.1984), we will first briefly highlight what we believe to be the more salient material facts of this cause that go to the appellant's guilt. ⁴

Lil Smith, owner of the Redwood Beach Marina, which is located between the communities of Kemp and Seven Points or between the communities of Seven Points and Gun Barrel City on Cedar Creek Lake or Reservoir, testified that around 10:00 o'clock p.m. on August 6, 1983, several of her customers at the marina noticed an empty boat drifting on the lake near the marina. Two of her customers went and got the empty boat and brought it to shore. Found inside the boat was a fishing license with the name "Jimmy Don Beets" thereon. ⁵ The Coast Guard and Parks and Wildlife were notified and several of their personnel came to the marina. Smith then looked in the telephone book to see if anyone by the name of Jimmy Don Beets was listed, found that name, telephoned the listed number several times, and finally spoke to appellant and informed her about the empty boat and the finding of Beets' fishing license. ⁶ The appellant went to the marina and identified the boat and the fishing license as belonging to Beets, who was then her lawful husband. ⁷ Because of high winds, it was decided by the authorities that a search for Beets' body would not commence until the next morning, August 7th.

Johnny Marr, a deputy sheriff for Henderson County, testified that at approximately 8:30 o'clock a.m. on August 7th, he and Hugh G. De Woody, the Fire Chief of the Payne Spring Fire Department, went to the appellant's residence to see if Beets had possibly returned home since he had been reported missing. Appellant told Marr that her husband "had went fishing the night before [on the lake and 'had been having trouble with his boat'], and hadn't returned Saturday morning." Marr told appellant that as speed boat races were taking place on the lake that day, and because of the numerous boats that would be in the lake that day, it was likely that Beets' body would be found by someone. When appellant testified, she denied that Marr and De Woody came to her residence that morning.

Mike Warren of the Parks and Wildlife Department testified that extensive search efforts were made by members of several different fire departments, which included members of the City of Dallas Fire Department, for whom Beets had been employed for approximately 26 years, members of the Henderson County Sheriff's Department, Coast Guard personnel, and many other persons. Although the search lasted for three weeks, Beets' body was never recovered.

Denny Burris, a chaplain with the City of Dallas Fire Department, testified that he visited with appellant several times after Beets was reported missing. Burris testified that appellant made inquiry of him whether she was covered by any insurance policies that Beets might have had with the City of Dallas, as well as inquiring whether she would be entitled to receive any pension benefits that Beets might have accumulated. Appellant did not profess to Burris that she had any specific knowledge of either insurance coverage on Beets' life or any pension benefits Beets might have accumulated. Burris told her that he did not know but would check into the matter and report back to her. Burris did check and learned that Beets's life was insured with the total amount of insurance being approximately $110,000. He also learned that appellant would be entitled to receive approximately $1,200 each month from Beets' pension benefits. Burris advised appellant of his findings, and also told her that according to the City Attorney of Dallas that because Beets' body had not been recovered there would be a seven year waiting period before any payment of insurance proceeds could occur. ⁸

Rick Rose, an investigator for the Henderson County Sheriff's Department, testified that he became directly involved in this case almost two years after Beets' had disappeared. His direct involvement in the case occurred after "[he] received information from a [credible] confidential informant who gave [him] facts that there may be possible ... questions [concerning the cause of the death] of Jimmy Don Beets." This occurred sometime in the spring of 1985. At that time, neither Beets' body nor the physical remains of his body had been found. As a result of Rose's investigation, he secured an arrest warrant for the appellant that charged her with the murder of Beets. Rose had her arrested on June 8, 1985 by members of the Mansfield Police Department, who turned her over to Rose, who booked her into the Henderson County Jail. The validity of the arrest warrant, which is not in the record of appeal, was not challenged in the trial court nor is it challenged on appeal in this Court. Rose testified that after appellant was incarcerated he went and secured "an evidentiary search warrant" to search the appellant's residence and its premises. The validity of the search warrant, which is also not in the record, was not challenged in the trial court nor is it challenged on appeal in this Court. Pursuant to the execution of the search warrant, physical remains of the bodies of Beets and Doyle Wayne Barker, another former husband of appellant's, were found at different locations on the premises where the appellant and Beets were living at the time Beets disappeared. ⁹ Beets' remains were found buried in the "wishing well," ¹⁰ which was located in the front yard of the residence. Barker's remains were found buried under a storage shed located...