Deeb v. State

• Decision Date: 26 June 1991
• Docket Number: No. 69551,69551
• Citation: 815 S.W.2d 692
• Parties: Muneer Mohammed DEEB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 692

815 S.W.2d 692

Muneer Mohammed DEEB, Appellant, v. The STATE of Texas, Appellee.

No. 69551.

Court of Criminal Appeals of Texas,

En Banc.

June 26, 1991.

Rehearing Denied Sept. 25, 1991.

Muneer Mohammed Deeb, pro se.

Richard McCall, John Segrest, Waco, amicus curiae, for appellant.

Vic Feazell, Dist. Atty., Waco, Dan Boulware, Dist. Atty., Cleburne, Andrew Shuvalov, Sp. Prosecutor, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code § 19.03(a)(3). This offense originated in McLennan County. Venue was changed to Johnson County pursuant to appellant's motion for a change of venue. After the jury made an affirmative finding on both of the special issues submitted under Art. 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death.

On first submission, in response to appellant's tenth pro se point of error, this Court abated this appeal and remanded this cause to the trial court for a hearing to permit appellant to perfect the record. Deeb v. State, No. 69,551 (Tex.Cr.App., Nov. 2, 1988). The record now being complete, this Court will address appellant's remaining points of error. Appellant brought a total of fifty-seven points of error to this Court: appellant raised forty-nine points of error in his pro-se brief, first supplemental pro-se brief, and second supplemental pro-se brief; by appointment of the trial court, and over appellant's objections, amicus curiae counsel raised an additional eight points of error ¹.

After reviewing the briefs and record in this cause, we find appellant is entitled to reversal and remand on amicus curiae's fourth point of error (In his pro se brief, appellant virtually copies this argument as his sixteenth point of error.): The trial court erred in allowing the testimony of Darryl Beckham relating to statements made by David Wayne Spence. In our opinion, we shall first deal with amicus curiae's fourth point of error. Second, we shall confront the other points of error which raise sufficiency of the evidence issues and due process issues.

I.

In the amicus curiae's fourth point of error, it is alleged "that the trial court erred in allowing the testimony of Darryl Beckham relating to statements made by David Wayne Spence." Appellant makes the same allegation in his sixteenth pro se point of error.

The state's theory of prosecution against appellant was that appellant planned the murder of Gayle Kelley for remuneration, that he conspired with David Wayne Spence to carry out that murder, and that acting pursuant to that agreement, Spence killed Jill Montgomery. ²

The state proved several facts at trial. Jill Montgomery was murdered on July 13, 1982. Jill Montgomery resembled Gayle Kelley. David Wayne Spence, assisted by Gilbert and Anthony Melendez, killed Jill Montgomery, Kenneth Franks and Raylene Rice. On June 22, 1982, appellant took out an accidental death policy on Gayle Kelley that would have paid appellant, as her beneficiary, $20,000 in the event of her death. Appellant's finances at the time of the murder of Jill Montgomery were not good.

The state sought to prove that a conspiracy existed between appellant and Spence. The state offered evidence to show that appellant hired Spence to kill Kelley, offering Spence $5,000 from the insurance proceeds if he succeeded. Later, on July 19, 1982, appellant made a second payment on Gayle Kelley's insurance policy. Appellant was initially arrested on September 13, 1982. Spence was also arrested in September of 1982. Appellant was released from custody on September 18, 1982. Spence remained in custody. The insurance policy lapsed for non-payment of premiums on September 20, 1982. Appellant was arrested a second time on the instant offense on November 14, 1983 after he had been indicted for the murder of Jill Montgomery.

After appellant testified at trial, the state called Darryl Beckham to testify in rebuttal concerning conversations he had with David Wayne Spence regarding the conspiracy between appellant and Spence. Appellant objected that this testimony was inadmissible as hearsay. The state responded that Spence's statements were made in furtherance of the conspiracy and that the object of the conspiracy had not yet been accomplished. Appellant responded that any conspiracy between appellant and Spence had been terminated by the time Spence spoke with Beckham. The trial court overruled appellant's hearsay objection and admitted the evidence. Appellant repeatedly renewed his hearsay objection throughout Beckham's testimony until the trial court granted him a running objection.

From December, 1982 through January and February of 1983, Beckham was incarcerated with Spence in the McLennan County Jail. He and Spence were cellmates. Spence spoke extensively with Beckham about the murder of Jill Montgomery. According to Beckham, Spence stated:

"He said the reason that he did it was because a man named Lucky Muneer who owned the Rainbow had told him that ..." "Kenneth Franks and Gail Kelley had been doing something considered wrong in his country. They had been more or less two-timing Lucky." "... that he had to do something about it because in his country it was considered a dishonor to a man if someone else was doing that to his lady, and that he had wanted him to do something about it; that it had to be done, and that he wanted him to kill Gail Kelley and Kenneth Franks, and ..." "He told him that he wanted him to find someone to help him do it, and that he wanted to kill the people in a separate place in Speegleville Park and take them to Speegleville Park because him and David never went there at all and no one would suspect the bodies had been dumped there." ... "He said whoever he got to help him, for him to say that David Wayne Spence had sold the kids some drugs, that they had crossed him in a drug deal and that was why he wanted them killed; that way Lucky would not be involved in it in any way and no one would know about it." ... "He told me that Muneer told him that he would give him enough money to take care of him and the guy he got to help him." ... "He said that it was according to how good he carried the job out, that he was going to open up a game room and he was going to let David Wayne Spence manage it, to start with, and that ... it was going to be in Waco." ... "He said he was supposed to paying for him a lawyer at that time." ... "He always talked about Lucky like he was a god or something, like he had money, and a celebrity, and like if he knew Lucky Muneer, then he wouldn't have to worry about anything else in his life."

Spence refused to testify at appellant's trial. Through his attorney, Spence communicated to the parties and the trial court that if he was called to the stand, he would assert his Fifth Amendment right to remain silent.

In appellant's briefs before this Court, he argues that Beckham's testimony was inadmissible because, at the time Spence spoke to Beckham, the conspiracy had been terminated by failure and because a partnership in crime between appellant and Spence could no longer exist under the circumstances. Appellant argues secondly, the testimony was inadmissible because the statements were not made in the furtherance of the conspiracy. In its briefs, the state responds that the conspiracy was still in effect and ongoing at the time Spence made the statements to Beckham.

The trial court admitted the above testimony under the coconspirator's exception to the hearsay rule. "Where there is sufficient independent evidence to establish a conspiracy, hearsay acts and statements of a conspirator which are made during the course of and in furtherance of the conspiracy are admissible against another conspirator." Denney v. State, 558 S.W.2d 467, at 469 (Tex.Cr.App.1977); Bates v. State, 587 S.W.2d 121, at 132 (Tex.Cr.App.1979). ³

This construction, that the statement must be made in the course of and in furtherance of the conspiracy, was supported by early case law from this jurisdiction. Knight v. State, 7 Tex.App. 206, at 209 (1879); Cortez v. State, 24 Tex.App. 511, 6 S.W. 546, at 547 (1887); Dungan v. State, 39 Tex.Cr.R. 115, 45 S.W. 19 (1898); Elliott v. State, 111 Tex.Cr.R. 534, 15 S.W.2d 648 (1929); Morphey v. State, 119 Tex.Cr.R. 77, 45 S.W.2d 1099 (1932); and 1 Branch's Penal Code Annotated § 694, at p. 353 (1st ed. 1916). This construction is also supported by recent case law. Rodriguez v. State, 552 S.W.2d 451, at 454 (Tex.Cr.App.1977); Denney v. State, 558 S.W.2d, at 469; Bates v. State, 587 S.W.2d, at 132; and Ward v. State, 657 S.W.2d 133, at 137 (Tex.Cr.App.1983).

First, there is the issue of whether Spence's statements to Beckham were made during the course of the conspiracy. The essence of the conspiracy was for Spence to kill Kelley so that appellant could collect on the insurance policy and pay Spence from that policy payoff, and for Spence to kill Franks to satisfy appellant's desire for revenge. At the time Spence made his statements to Beckham, Franks was dead, appellant's insurance policy on Kelley had terminated, and Spence was incarcerated pending transfer to the Texas Department of Corrections on an unrelated felony conviction. There was no possibility of an insurance scam payoff or even of Spence being free to commit the murder of Kelley. The fact that Kelley was still alive and Spence had not yet been paid are not dispositive. We conclude that the conspiracy had been terminated before Spence made his statements to Beckham in jail.

Coconspirator's statements made after the termination of the conspiracy are inadmissible. In Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983), this Court held that the defendant's wife's statements to a third party a few hours after the commission of the murder were not made during the course of the conspiracy. This followed the "general rule that an act or statement...