McManus v. State

• Decision Date: 05 December 1979
• Docket Number: No. 58886,58886
• Parties: Vernon Eugene McMANUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 505

591 S.W.2d 505

Vernon Eugene McMANUS, Appellant, v. The STATE of Texas, Appellee.

No. 58886.

Court of Criminal Appeals of Texas, En Banc.

Dec. 5, 1979.

Rehearing Denied Jan. 16, 1980.

Mark Vela and Stanley G. Schneider, Houston, Don Smith, Baytown, for appellant.

Carol S. Vance, Dist. Atty., Michael C. Kuhn, Stu Stewart and Michael J. Hinton, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder, wherein the punishment was assessed at death. 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.

In his fifteenth ground of error, appellant challenges the sufficiency of the evidence to show that the murder was committed for remuneration or the promise thereof.

In the early morning hours of July 25, 1976, the bodies of the deceased, Paul and Mary Cantrell, were discovered in their home by their daughter, Paula Cantrell Derese. They were found lying on the floor of their den, and both had been strangled and had had their throats cut. Four days later, Paula, the only child of Paul and Mary, gave a statement in which she implicated herself and appellant in the murders. Paula, in testifying against appellant, stated that she had pled guilty to the murders of her parents, and that by her conduct, she had encouraged the commission of the crime. She stated that she admitted her part in the crime because she could not have taken her parents' money and lived like she wanted to.

Paula first met appellant in 1970, when she lived in Beaumont and worked for Lamar University, where appellant was an assistant football coach. She later married Herbie Derese and had a son, Chad, in December of 1973. Her parents did not approve of Paula's marriage to Herbie. In 1975, Paula and Herbie separated and Paula, with her son, moved into her parents' home in Baytown. She lived there with her parents until their deaths in July of 1976. During this period of time, there was conflict between Paula and her parents, over Paula's desire to reconcile with her husband. There was testimony that Paula's father had threatened to wage a court battle for the legal custody of Chad if Paula reconciled with Herbie.

In January or February of 1976, appellant reestablished contact with Paula. Paula testified that at this time, she refused to go out with him. However, she talked to him several times on the telephone. A few weeks later, she had a serious argument with her parents about Herbie and was upset. She agreed to have lunch with appellant, and at this time discussed her problems with her parents with him. She testified that she told appellant that she would do anything to be free of her parents. Appellant responded that he knew of a way that that could be taken care of so that she would not have to worry about that again. Appellant also asked her about how much insurance Herbie had, and whether she wanted him killed. Paula responded that she did not want Herbie killed.

Sometime during February, appellant co-signed a $1,500 loan which Paula took out.

About two weeks after their first meeting, during which time Paula and appellant talked on the telephone several times, they met again for lunch. At this meeting, appellant told Paula that things had been taken care of so that she would not have to worry about it again. He told her that he knew some people who killed people for money, and that there had already been a payment made to have her parents killed. Paula testified that she was supposed to pay appellant out of the proceeds of her parents' estate and life insurance; appellant told her that he wanted one-third. She testified that although she never expressly told him that she would pay him, she "let it slide." She stated that at this time, she did not believe that he was serious.

In March of 1976, appellant and his business partner, Vernon Olney, came to Paula's parents' house to discuss a business matter, and Paula, with her mother, showed appellant through the house.

Paula and appellant maintained communication, and in April, Paula went to work for appellant as his secretary in his plywood brokerage business. She testified that at this time, she thought appellant was serious about having her parents murdered.

On Easter weekend, Paul and Mary had made plans to meet some friends in Austin to play golf. Prior to this weekend, appellant had a discussion with Paula about insurance double indemnity and "making something look like an accident." Paula stated that she did not know what this meant. Appellant knew of the deceased's plans Easter weekend, and Paula told him the motel in which they would be staying. Paula testified that when her parents left for their trip, she thought that something was going to happen to them that weekend. She thought that appellant was serious about murdering them. When questioned about whether she tried to warn them, she stated that she just could not tell them about the situation. She admitted that this was when she started encouraging the murders of her parents. She testified that she turned her back on the situation. Still, she called her parents several times that weekend, and they returned home safely.

In May, appellant discussed with Paula borrowing money from a credit union; this money was to be used to pay the person who was supposed to do the killings. He also told her that the "contact person" or "hit man" was sick in Ohio at that time.

During this time, Paula also became familiar with the name "Ben T." and knew that he was somehow involved in the scheme to have her parents murdered.

During June, appellant was drinking heavily and was gone frequently from his business. Testimony showed that appellant was trying, but was not able to have the murders done soon. He told Paula that he should not have counted upon anyone else to do the killings, that he should have done them himself. He said that he would walk up to the deceased's house and act like he was going to talk about business and kill them himself.

On Friday, July 23rd, Paula talked to appellant on the telephone from her house. She had observed him drive by her house that day. Appellant told her that "the man is in the area" and told her to leave the house. He had previously warned her not to be in the house when "the man" came. That evening, Paula went over to a friend's house and returned home shortly before midnight.

Paula again talked to appellant on Saturday, July 24th, and told him that she had a date that evening; she further told him that her parents would be at home that night. That night, when she returned home from her date, she discovered the bodies of her parents in their den. Over the next few days, appellant visited Paula several times, and repeatedly told her to "keep her mouth shut and not to crack." He then told her how the murders had occurred and that he had been present during them. According to his statements to Paula, appellant had rented a car from the Houston airport and had picked up two men. They then proceeded to the Cantrell house. All of them wore gloves. They had used a pipe to hit the victims in the head, and then had cut their throats. The three had started to ransack the house, but a car pulled up across the street, so they left. Appellant had also made a comment that if one hair was found on the bodies of the deceased, "he (appellant) was dead."

In her written confession, Paula stated that during the months that she worked for appellant, "he always talked about it (the murders) . . . He kept talking about it all the time until it happened." On the day of the murders, appellant called and "told me that the man had called him Friday and said three is a crowd. I knew what he meant because he had told me in the past that it might not matter if I and Chad were there. He was afraid something would happen to me and he couldn't get any insurance money."

In her testimony at trial, Paula denied that she expressly told appellant that she would pay him, or that she ever expressly promised to pay him. She testified that, instead, he had Told her that she was to pay him one-third of the proceeds of the estate. She testified that she had not thought through How she was to give him the money, because "the reality of it never really hit (her)."

Paula was examined extensively about her involvement in the murders, beyond her confession to the crime and entry of pleas of guilty to the murders. She was asked,

"Q. To you, then, knowledge (of the planned murders) is encouragement? In other words, knowing about it and you didn't tell somebody?

"A. (Paula) That's right.

"Q. Is this what you meant?

"A. Yes.

"Q. And so far as you are concerned, that is what has really brought you to this courtroom, is that you had knowledge but you never really encouraged . . . ?

"A. And by his saying that he got a third of the estate and me agreeing to that, that's right.

"Q. Oh, you agreed to it?

"A. Well, I guess. I didn't do anything about it."

Ben Tabor, an acquaintance of appellant's, testified that in March appellant had approached him about finding a professional killer or "hit man." Appellant told Tabor that two people were to be killed, and that their daughter would be the beneficiary, and that he was to receive one-third of the estate. The recorder further reflects that appellant twice made payments of $6,000 each to Tabor to give to the "hit man" whom Tabor said he had procured for appellant.

Donna French, appellant's girlfriend in June and July, testified that during these months, appellant had mentioned leaving town or vacationing somewhere. However, appellant told her that this would not be until around mid-August "because he was going to run into some money."

Candy Campbell, a friend of...