Beets v. State

767 S.W.2d 711, 1988 Tex. Crim. App. LEXIS 182, 1987 WL 1384

Opinions

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'fhe 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 mama 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. Pound 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 Sheriffs 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 in the backyard of the residence. Two bullets were recovered from Beets’ remains. The remains of the two bodies were transported to the Dallas Forensic Science Laboratory where they were subsequently identified as being the remains of the bodies of Beets and Barker. A Collector’s item pistol that had been previously recovered from the appellant’s residence as a result of an incident that did not involve the appellant and was not directly related to the cause at Bar was also turned over to the Dallas laboratory.

Robert “Robbie” Franklin Branson, II, one of appellant’s sons, who we will hereinafter refer to as Robbie, testified. The trial judge later instructed the jury that Robbie was, as a matter of law, an accomplice witness to the Beets’ killing. Robbie, who was then on felony probation for committing a burglary that had occurred in Navarro County, which is unrelated to this case, testified that he was living with appellant and Beets on August 6, 1983, when appellant falsely reported Beets missing; that appellant told him that she was going to kill Beets that evening; that Robbie then left the residence at the suggestion of appellant, because “she said she wanted me to leave and she didn’t want me to be around when she shot and killed him,” and remained absent for approximately two hours, after which he returned to the residence when he learned that his mother had actually shot and killed Beets during his absence. Robbie thereafter assisted appellant in placing Beets’ body in the “wishing well”, which he and Beets had previously constructed. The next day, after appellant put some of Beets’ heart pills in the boat that Beets owned and after Robbie took the propeller off the boat, Robbie took the boat to the main part of the lake, abandoned it, and was soon met by appellant near that location. The two then returned home. During cross-examination, the appellant’s attorney several times accused Robbie of being the actual killer of Beets, which Robbie denied. Robbie admitted that his participation with appellant in burying Beet’s body in the “wishing well” had preyed on his conscience. However, except for telling his ex-common-law wife who did not testify, Robbie remained silent on the subject for almost two years. Robbie testified that he remained silent because he wanted “to protect his mother.” However, after his mother was arrested, Robbie commenced cooperating with the authorities, “to protect his backfside].” Robbie testified that he knew of Barker, but had only seen him one time, and that he did not live with his mother and Barker when she and Barker were married and lived together.

Shirley Stegner, one of appellant’s daughters and a sister of Robbie, also testified for the prosecution. Shirley testified that her mother telephoned her on the night of August 6th and requested that Shirley come to her residence, which Shirley did. During the telephone conversation, Shirley asked her mother “if she had done what we had talked about before,” which conversation related to appellant previously telling Shirley that she was going to kill Beets, put Beets’ body in the boat, have Robbie take the boat out into the lake, where he would drop Beets’ body into the lake, and then set the boat adrift, so that it would look like Beets had accidentally drowned. Appellant responded: “Yes.” Shirley went to her mother’s residence but after she got there appellant informed her that “everything was taken care of and that I could go back home,” which she did. Shirley testified that several weeks later she returned to her mother’s residence when she was informed by appellant that “her and my brother Robbie had buried Jimmy Don Beets in the wishing well.” Shirley never testified that appellant had admitted to her that she had killed Beets in order to recover on any insurance policies or to receive any pension benefits that Beets might have had.

At this time during the trial, the trial judge conducted a hearing on the appellant’s motion to exclude any extraneous offense testimony going to the death of Barker, after which the trial judge overruled the motion, thus permitting the State to then present testimony going to the disappearance and death of Barker. See, however, post.

In the presence of the jury, Shirley testified that in October, 1981, almost two years before Beets disappeared, when her mother and Barker were married and living together, while she and her mother were “sitting around a campfire”, her mother told her that “she was going to kill Doyle Wayne Barker” because “she couldn’t put up with anymore of him beating her and that she didn’t want him around anymore.” Her mother also told her that “the trailer [house] was in his name and she was just a co-signer on it and that if they were to get a divorce, that he would end up with the trailer [house].” Approximately 3 or 4 days later, at Shirley’s residence, Shirley and her mother had another conversation, during which her mother told her that “it was all over with and she had done what she intended to do ... She told [Shirley] that she waited until [Barker] went to sleep and then she got the gun and covered it with a pillow and pulled the trigger and when she pulled the trigger, the pillow [interfered] with the firing pin, so she hesi tated for a minute, afraid that Wayne was going to wake up, and she cocked the gun again and fired and shot him in the head.” Thereafter, Shirley assisted her mother in disposing of Barker’s body: “We drug him from the trailer outside to the back and put him in the hole that had already been dug [in order to build a barbeque pit].” Shirley further testified that “the next day [she and her mother] went and bought some cinder blocks and [built] a patio” over the hole in which Barker’s body had been placed. Subsequently, a large storage shed replaced the patio. During cross-examination, Shirley testified that although she had also been charged with the murder of Barker and her $1,000,000 bail bond had been reduced to $5,000 she had not been promised anything by the prosecution in exchange for her testimony against her mother. We pause to point out that in the conversations that Shirley had with her mother regarding Barker’s death, other than the reference to the trailer house, appellant did not admit to Shirley that she was going to kill Barker for financial gain. There is also no evidence whatsoever in the record that might reflect or indicate that appellant financially benefited from Barker’s death. There is also no evidence in the record that might reflect or indicate that the trailer house to which appellant referred and the trailer house in which appellant and Beets resided when Beets was reported missing are one and the same trailer house.

Rick Rose was recalled to testify. Rose testified to the recovery of the skeletal or physical remains of Beets and Barker’s bodies. See ante. The remains were transported to the Dallas Forensic Science Laboratory where they were subsequently identified as being the skeletal or physical remains of Beets and Barker’s bodies.

Dr. Charles S. Petty, the Chief Medical Examiner and Director of the Dallas County Forensic Science Laboratory, testified to the “post-mortem autopsy” that he performed on the skeletal remains that had been sent to the laboratory. Petty testified that he identified the bones as those of Beets and Barker’s bodies. Petty testified that the cause of death of Beets was “the gunshot wound defect in the skull and locating of not one but two bullets, one in the region of the skull and the other in the region of the bones of the trunk. In my opinion, death was due to one, if not two, gunshot wounds ... One in the head and one in the trunk somewhere.” Two bullets were recovered from the skeletal remains of Beets’ body; one from the skull area of the body and one from the trunk area of the body.¹¹ Petty also testified that the bullets found in Beets’ skeletal remains could have been fired from the same weapon,, but he was unable to positively testify that they were fired from the Collector’s item pistol. Three bullets were recovered from the skeletal remains of Barker’s body. Petty testified that the cause of Barker’s death was “gunshot wounds.”

Allen Jones, a firearms examiner employed by the Dallas County Forensic Science Laboratory, testified that he examined the recovered bullets, after which he formed the opinion that they were fired from a .38 calibre type weapon, which was the calibre of the Collector’s item pistol. Jones, however, was unable to positively testify that in his opinion the bullets that were fired came from the Collector’s item pistol that had been previously recovered from the appellant’s residence. See ante.

Jackie Collins, a niece of Beets who was also an employee of J.C. Penney Life Insurance Company, testified to Beets’ personally cancelling an insurance policy in the amount of $10,000 on May 19, 1983. The application, which had apparently been sent with a monthly J.C. Penney bill to either Beets or appellant or to both of them, had been filled out without Beets’ knowledge. What attracted Collins’ attention to the application was the fact that the address on the application was not Beets’ but was that of another of appellant’s daughters. Ap pellant was the named beneficiary on the application. When appellant testified, she did not deny that she had filled out the application, signed Beets’ name to the application, and returned it with the monthly payment.

Peggy Sherrills Webb, an employee of the City of Dallas who was a “Benefits Supervisor with Personnel”, testified that Beets had a life insurance policy with the City in the amount of $86,000, with the appellant the named beneficiary of the policy.

George Chaney, a documents examiner who had been employed for 23 years by the Secret Service and was presently employed by James Leroy Lewis and Associates, documents examiners located in Dallas, testified that the signature on the J.C. Penney’s application, “J.D. Beets”, was signed by appellant, but that the signature “J.D. Beets,” that authorized the policy to be cancelled, was Beets’ actual signature. Chaney also testified that the signature on the certificate of transfer or bill of sale for the boat, “J.D. Beets”, which occurred when the boat was sold to the Mitchells, was signed by appellant. This, however, occurred on July 24, 1984, almost one year after Beets had disappeared. When appellant testified, she did not dispute the fact that she had sold the boat to the Mitchells nor did she dispute that she signed Beets’ name to the bill of sale.

Jerry Hast, an employee of the City of Dallas, who was the “Administrator of the Dallas Police and Fire Pension Fund”, testified concerning an application for benefits that had been filed by an attorney on behalf of appellant, which occurred after the letters testamentary had issued. Hast testified that “The Pension Board” voted to approve a settlement with appellant for pension benefits. This settlement was going to be finalized on June 10, 1985. Hast also testified that the settlement was can-celled after members of the Board learned that appellant had been arrested for murdering Beets. The appellant would have received $15,852.59 plus a monthly benefit of $790.42 for the rest of her life or until she remarried had the settlement been finalized. Whether the $15,852.59 referred to any insurance policies is not reflected in the record on appeal. As previously pointed out, our Probate Code prohibits distribution of a missing person’s estate until three years from the date the letters testamentary issued have expired.

E. Stewart Elrich, Jr., Manager of the Group Life Claims Department of Republic National Life Group Insurance Company, testified that his company had issued a life insurance policy on Beets’ life in the amount of $23,428. The policy also contained an accidental death provision in the amount of $20,000. At some time, presumably after March 5, 1985 when the letters testamentary issued, an attorney wrote the company on behalf of appellant stating that “an application had been made for administration of an estate.” No action was ever taken on the attorney’s letter.

At this time during the trial the State rested. Hon. Billy Bandy, the prosecuting attorney, soon thereafter stated into the record that he rested when he did because “I always wait until it’s — the mood strikes me and then I rest ... [T]he way things went, I decided to just shut it down [when I did].” Counsel for appellant then stated: “You think it’s going that good, huh?” Bandy did not verbally respond to counsel’s question. From remarks in the record, we can infer that when the State rested when it did that this may have caught appellant’s counsel by surprise.

Footnotes

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11A The careful trial judge, however, informed appellant’s counsel that he would give him whatever time he might need before proceeding, but counsel declined the offer: “No, I don’t need anymore time. I’ll be here at nine in the morning”, and counsel did appear as promised.

The appellant first had Faye Lane, another of her daughters, testify. Lane testified that neither Robbie nor Shirley ever mentioned to her that their mother admitted to them that she had killed Beets or Barker or participated in burying them after they had been killed. Lane also testified that “everything that [Robbie has] ever told her, [she] believed.”

Raymond Bone, who lived with appellant after Beets’ disappeared, testified. Bone testified that he entered into an agreement with law enforcement officials, in particular Rose, that he would keep them posted at all times as to the whereabouts of appellant, and he did. It is obvious to us from the testimony that was adduced, as it must have been to the jury, that before appellant was arrested Bone had notified the authorities where she would then be located. Why Rose and Henderson County authorities, rather than Mansfield authorities, did not arrest appellant when she was arrested is not clear from the record. Bone testified that he did not believe that appellant was guilty of killing Beets, which conclusion was based upon the following: “I lived with her and ... she always treated me decent.” There is no evidence in the record that appellant ever attempted to kill Bone or made arrangements for his disappearance. Bone’s financial condition, which appears to have been lacking, was not directly brought out at trial.

Bobby Wayne Branson, another son of the appellant, who we will refer to as “Bobby”, testified that before Beets disappeared, Robbie, his brother, and Beets had a “couple” of arguments and fights over various and sundry things, several of which occurred after Beets, appellant, Bobby, and a friend of Bobby’s had taken a vacation trip to Virginia where they visited with appellant’s mother and father and her relatives. The vacation trip occurred just “a couple of weeks” before Beets disappeared, and from everyone who testified that was familiar with the trip it appears to have been a happy trip. There was also testimony that before Beets and appellant lawfully married in 1982 the two of them took a trip to Virginia to attend appellant’s brother’s funeral. Bobby also testified that when his mother and Barker were married and living together he lived with them “part of the time.” Bobby further testified that when he noticed that Barker was no longer to be seen around the house, he asked his mother where he had gone. She replied: “[H]e was just gone ... he left.”

Appellant herself testified. In reference to the killing of Beets, her former husband to whom she had been lawfully married less than one year, appellant’s testimony was contrary to what Robbie had testified in that she testified that it was Robbie, and not her, who had shot and killed Beets, and that she merely assisted Robbie in disposing of his body. Appellant testified: “I could never hurt Jimmy Don ... I loved Jimmy Don. Nobody’s ever been as good to me as he was.” The record either reflects or indicates that Robbie had commenced living with appellant and Beets after he was released from jail for a burglary offense that he committed in Navarro County, and that prior to that time he had lived with his natural father. The appellant’s attorney, who accused Robbie during his cross-examination of being the murderer of Beets, see ante, represented Robbie when he was accused, convicted, and placed on probation for committing the burglary in Navarro County. The bail bond fee and the attorney’s fee apparently were paid by Beets. Appellant admitted during her testimony that she falsely reported Beets missing. Appellant also testified that after she, Beets, Bobby, and Bobby’s friend returned from their vacation trip to Virginia, she and Beets suspected that Robbie had broken the propeller on the boat, which had also been hot wired; that Robbie had caused the tires on her truck, which was muddy and dirty, and not clean as it was when they left on their trip, to become flat; that Robbie took money out of a whiskey bottle that belonged to Beets; and caused the inside of the trailer house to become untidy. Appellant testified that this highly upset Beets. Robbie denied doing these things and blamed Shirley. Appellant testified that during the evening when Beets was supposed to have gone boating, before going to bed, he, Beets, and Robbie got into an argument over the above as well as over Robbie quitting his job. Appellant testified that the argument occurred when she was in the living room and Beets and Robbie were in the bedroom. The argument gen erated into fisticuffs.¹² Appellant testified that soon thereafter she heard a shot fired from a pistol. She then went into the bedroom where she saw Beets, whose head was bleeding and had blood coming from his mouth, lying on the floor. Appellant then told Robbie to go and find his brother Bobby, which Robbie did. Appellant then attempted to care for Beets, who appears to have then been dead, by putting a bedsh-eet over his body and telling him that if he were still alive he would understand that she and Robbie were going to bury him in their front yard in order to protect Robbie. Appellant testified that she telephoned Shirley and asked her to come to the trailer house, which Shirley did. When Shirley arrived, Beets’ body was still in the bedroom. Shirley did not see the body. Shirley was told by appellant that Beets had gone to Dallas that evening with a friend. After appellant told Shirley “everything was all right”, Shirley left and returned to her residence in Dallas. Appellant and Robbie then waited until Bobby was asleep, after which they took Beets’ body and “put it into the planter. It wasn’t a wishing well.” Appellant told Robbie that if the authorities ever found Beets’ body to say that he knew nothing about it “[a]nd that [she] would take the blame.” Appellant’s testimony regarding the other events that occurred that evening and the days that followed regarding finding Beets’ body is pretty much cumulative to the other testimony that was adduced, except she denied that Marr and De Woody had come to her residence the Saturday morning after Beets was reported missing. Appellant testified that knowing Beets’ body was buried in the front yard of their residence “bothered her and it always will. I had to move out of the trailer for a while. I couldn’t stay there. When it got dark, I couldn’t leave the living room and I couldn’t go outside.” Appellant also testified that approximately one year later Robbie told her that “we needed to move the body”, but appellant told him that “I couldn’t go through with it again.” As to where the remains of Beets's body might now be, appellant testified that she did not know but testified that “I hope it was where his mama and daddy want him to be and where I bought the lots at.” Appellant further testified that it was one of her attorneys, and not she, who suggested that she try and recover on the insurance policy or policies. She testified that “I didn’t expect to get any of it ... I’ve never felt like I was entitled to anything.” She admitted that she had sold Beets’ boat, tried to sell a house that appears to have been Beets’ separate property, and also testified that the house, which had mysteriously burned, was for sale before Beets disappeared. She admitted that she had tried to recover on a fire insurance policy, at her attorney’s suggestion. She further admitted that she tried to take out the J.C. Penney insurance policy but that Beets cancelled it, after which he told her not to do such again until they had had an opportunity to discuss it. The facts are undisputed that other than several salary checks and the proceeds from the boat sale, appellant did not receive any other sums of money as a result of Beets’ death. Appellant admitted that she had been previously convicted of a misdemeanor offense, which, on cross-examination, was shown to have been for public lewdness, which apparently occurred when she was in Charlie’s Angels Bar, a Dallas bar, where she was then employed but was not working when whatever occurred happened. Appellant testified that she “auditioned” that night, without specifying what type audition it was for: “Well, it’s a topless place but I wasn’t topless.” Appellant also admitted on cross-examination that she had been convicted of another misdemeanor offense that resulted when she shot another former husband, Bill Lane, in the side and stomach. We have not been made privy to the details of the Lane shooting. There is no evidence that appellant ever tried to kill Lane or cause Lane to disappear so that she could financially benefit from Lane’s death. On cross examination, she denied knowing that Barker was buried in the backyard of her residence.

We pause to point out that the trial judge, pursuant to motion by defense counsel, restricted Bandy’s cross-examination of appellant on her knowledge of Barker’s disappearance and death to a single question, “Whether or not she was aware that the body of her former husband, Doyle Wayne Barker, was also buried on the premises?” As noted, appellant responded in the negative.

Appellant asserts in her first ground of error that “[t]he first count of the indictment [on which she was convicted by the jury] is deficient in that it does not allege every constituent element of the offense.” We disagree. We first point out that the ground of error on appeal does not comport with appellant’s contention that was made in the trial court. It is now axiomatic that any error raised on appeal must comport with the complaint made in the trial court. See Sharp v. State, 707 S.W.2d 611, 619 (Tex.Cr.App.1986). Although appellant filed in the trial court a motion to quash the indictment prior to trial, which was overruled, her arguments in the motion went to her claims that the grand jury’s indictment was based upon insufficient evidence; that the grand jury did not hear all of the evidence, both favorable and unfavorable towards appellant; that some of the evidence that it heard had been unlawfully obtained; and that because the appellant was not given the opportunity to appear before the grand jury the grand jury did not have the benefit of her testimony before it voted to return the indictment. As seen, with the exception of her complaint that she was not given the opportunity to testify before the grand jury, which right she did not have, see Moczygemba v. State, 532 S.W.2d 636, 638 (Tex.Cr.App.1976), in her challenge to the indictment her complaints in the trial court did not go either to notice or that the indictment did not state an offense, and was thus void, but, instead, went to the evidentiary basis of the indictment, which is an impermissible attack upon an indictment in this State. See Brooks v. State, 642 S.W.2d 791, 795 (Tex.Cr.App.1982), and the cases cited therein; also see Culley v. State, 505 S.W.2d 567, 569 (Tex.Cr.App.1974). Furthermore, it is not necessary to allege the constituent elements of the aggravating feature of a capital murder charge. See Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985). However, because a fundamentally defective charging instrument, i.e., one that fails to state an offense against the accused, may be attacked for the first time on appeal, and also may be attacked even after the conviction has become final, see Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App.1985), we will address the appellant’s implied assertion that the indictment fails to allege the offense of capital murder by remuneration. We hold that it does. The indictment alleges that the appellant caused the death of Beets by shooting him with a firearm. This alleges the offense of murder. See V.T.C.A., Penal Code, Section 19.02. The additional allegation, “and the said murder was committed for remuneration, namely: money from the proceeds of retirement benefits from the employment of Jimmy Don Beets with the City of Dallas, insurance policies of the said Jimmy Don Beets in which the Defendant is the named beneficiary, and the estate of Jimmy Don Beets,” alleges the aggravating element that elevates the offense of murder to capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(3), which provides in part that the offense of murder is elevated to the offense of capital murder if “the person commits the murder for remuneration.” We find and hold that the indictment alleges in the terms of the statute the capital murder offense of murder for remuneration. Also see the discussion in McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1980), which appears to have rejected a like contention as made here.

However, we find that appellant’s arguments under this ground of error do not actually claim that the indictment does not state the capital offense of murder for remuneration, but are actually more suitable as argument under her second ground of error entitled “No evidence was offered to sustain the charge of murder for remuneration,” which we will later discuss.

Appellant’s first ground of error is overruled.

Appellant asserts in her fourth ground of error that “[tjhere 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.” Appellant argues under this ground of error that both Shirley and Robbie were, as a matter of law, accomplice witnesses to the Beets’ killing. Because the arguments do not implicate the aggravating element of remuneration, and also because neither Shirley’s nor Robbie’s testimony went to the aggravating element, we limit our remarks to whether the testimony and evidence going to the killing of Beets were sufficient to corroborate the testimony of Robbie. We find it was.

The trial court instructed the jury that Robbie was, as a matter of law, an accomplice witness to the Beets’ killing, and further instructed the jury that it could not convict the appellant upon Robbie’s testimony unless it believed his testimony and also believed that there was other testimony in the case tending to connect appellant with the offense committed. The trial judge did not charge the jury either as a matter of fact or as a matter of law that Shirley was an accomplice witness to the Beets’ killing. We find and hold as a matter of law that given the facts of this cause Shirley was not an accomplice witness to the Beets’ killing. The most that the evidence established was that after the fact Shirley went to the appellant’s residence. There is no evidence that after she arrived there she participated with Robbie or appellant in placing Beets’ body in the “wishing well.” A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even participated in concealing it. See Marlo v. State, 720 S.W.2d 496 (Tex.Cr.App.1986).

Given the trial court’s instruction to the jury that Robbie was, as a matter of law, an accomplice witness, see and cf. Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983); Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1984); Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1986); Williams v. State, 696 S.W.2d 896 (Tex.Cr.App.1985), in deciding appellant’s ground of error we will exclude Robbie's testimony as we must, see Art. 38.14, V.A.C.C.P., also see Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App.1986); Romero v. State, 716 S.W.2d 519 (Tex.Cr.App.1986), and decide whether there was sufficient independent corroborative evidence outside of Robbie’s testimony to establish the murder of Beets. We find there was. Appellant’s admissions to Shirley that she killed Beets and the recovery of the remains of Beet’s body that had been buried by appellant and Robbie in the front yard of her residence make out a complete case of murder against appellant. In Romero, supra, this Court, quoting from Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974), pointed out that admissions of a defendant, under most circumstances, will be sufficient to corroborate the accomplice witness. Given all of the facts and circumstances outside of Robbie’s testimony, we find and hold that the independent evidence was sufficient to corroborate his testimony as to appellant’s murdering Beets.

Appellant’s fourth ground- of error is overruled.

In her second ground of error, appellant asserts that “no evidence was offered to sustain the charge of murder for remuneration.” We construe her arguments under this ground of error, treated in conjunction with those made under her first ground of error which challenged the validity of the indictment, which we have overruled, ante, as asserting that the State failed to prove beyond a reasonable doubt the aggravating element of remuneration. Given the terms of Art. 37.071, V.A.C.C.P., which govern the punishment stage of a capital murder conviction, the claimed error is actually a challenge to the sufficiency of the evidence to sustain the jury’s verdict finding the appellant guilty of all the elements of the offense of capital murder, i.e., the elements of murder and the aggravating element of remuneration. We have held that the evidence is more than sufficient to sustain appellant’s conviction for murder. We must now decide whether the evidence is sufficient to support a finding that the murder was done for remuneration.

Appellant contends that under Section 19.03(a)(3), supra, the unilateral act of murder will never establish the aggravating element of remuneration. Appellant further asserts that “financial gain by and of itself [is not] tantamount to remuneration,” as that term is commonly defined and used. Appellant argues that when the common meaning of the term “remuneration” is applied to this cause, it is clear “[that she did not have] an arrangement whereby [she] was a party to a compact under which she received or was promised remuneration from a third party for killing [Beets].” Appellant also argues that “Remuneration was not intended by the Legislature ... to include mere financial or material gain to the accused. Such a definition of the term would bring within its sweep practically any instance in which the accused killed a member of his or her family; in which a beneficiary killed an insured; a remainder-man killed the holder of a life estate; or a debtor killed an acquaintance to whom he owed a debt not evidenced in writing.”

We find that appellant is quite correct when she states that “[n]o evidence whatever was offered to show that [she] was a party to a compact or agreement, either as principal or agent, by which remuneration was paid or promised to be paid [to her] for [her murdering Beets].” The evidence and testimony is clear that the only payors would have been the insurance companies and the City of Dallas, and there is no evidence in this record that they or anyone acting on their behalf had anything to do with the murder of Beets.

The State, in its response arguments, contends, albeit implicitly, that once it established that the appellant murdered Beets and also established that she was the named beneficiary of the insurance policies and the named beneficiary of the pension benefits it made out a prima facie case of capital murder under the provisions of V.T.C.A., Penal Code, Section 19.03(a)(3), which provides in pertinent part the following: “(3) [the offense of murder becomes capital murder if] the person commits the murder for remuneration or the promise of remuneration.” Because this is not a “murder for hire” killing case we disagree totally and completely with the State’s reasoning and conclusion. Otherwise, we might agree with the State.

The contention that appellant presents appears to be the first time such contention has ever been presented to this Court for it to resolve. Today, we will resolve it and will resolve it in favor of appellant.

We find that the key to our resolving appellant’s contention lies in the following: (1) What meaning must we give to the word “remuneration”, which is not defined in either the Penal Code or the Code of Criminal Procedure; (2) What does the Legislative history of the remunerative provisions of the statute reveal; and, because this Court has not specifically construed or interpreted the term “remuneration”, as found in the statute,¹³ (3) How have courts of other States with similarly worded statutes construed and interpreted their statutes. We pause to point out that only three states other than Texas — Oklahoma, Idaho, and Tennessee have statutes worded exactly like ours; murder “committed for remuneration or the promise of remuneration,” with 33 States having hired gun aggravating circumstance statutes, as we do, except they are not necessarily worded as our statute is worded, i.e., “[the person commits the offense of capital murder if he] employs another to commit the murder for remuneration or the promise of remuneration.” The statutes from the other States have been broken down into three categories or groups, (1) murder committed for the purpose of receiving money or any other thing of monetary value, (2) murder committed for pecuniary gain, and (3) murder committed by one who was employed or hired to kill another or the defendant committed the murder by employing or hir ing another person to kill another. Several States, such as Missouri, do not have, contrary to Texas, a specific aggravating element statute separately specifying robbery. The various statutes are compiled in State v. McDonald, 661 S.W.2d 497, 503 (Sup.Ct.Mo.1983).

The Texas Government Code provides in Section 311.011(a) that when a word or phrase is not statutorily defined, “[it] shall be read in context and construed according to the rules of grammar and common usage.” Webster’s Ninth New Collegiate Dictionary (1985 edition) defines the word “remuneration” as follows: “Something that remunerates, RECOMPENSE, PAY.” 997. One of the definitions for the word “recompense” is “to pay for.” Webster’s, 984, supra. Black’s Law Dictionary at 1460, (1979 edition), defines the word “remuneration” as follows: “Reward; recompense; salary.” The Compact Edition of the Oxford English Dictionary at 2488, O.E.D. at 439, (1971 edition), defines the word “remuneration” in like manner. The research tool, Words and Phrases, informs us that the word “remuneration” is usually defined by courts to mean “a payment that is made by one person to another person in exchange for something that the latter did or agreed to do.” In State v. McDonald, supra, the Missouri Supreme Court stated the following: “ ‘Remuneration’ plainly implies payment from one person to another in compensation of services ... 1. to pay an equivalent for (as a service loss, expense) 2. to pay an equivalent to (a person) for a service, loss or expense. Webster’s Third New International Dictionary, Unabridged (1981).” (503). The Oklahoma Court of Criminal Appeals, the only court in the Nation comparable to our Court, has interpreted the word “remuneration” as the Missouri Supreme Court did and further stated that “[t]o hold otherwise would require this Court to construe the language ‘murder for remuneration’ beyond its plain ordinary meaning.” Johnson v. State, 665 P.2d 815, 824 (Okla.Cr.1982).

If we construed the statutory phrase, “the person commits the murder for remuneration or the promise for remuneration,” to be limited to the above unanimous definitional and plain ordinary meanings of the word “remuneration”, we would be compelled to hold that for a person to be guilty of capital murder under that provision of the statute he or she must commit the murder with the expectation that another person or party will furnish the remuneration for the commission of the murder, i.e., that the murder was carried out as a “quid pro quo”, or something for something, Black’s Law Dictionary, 1123, supra, and that the appellant was the hired killer. Boutwell v. State, 659 P.2d 322, 328 (Okla.Cr.1983). This we find actually comports with what Judge W.C. Davis stated on behalf of this Court in this Court’s opinion of Doty v. State, 585 S.W.2d 726, 727 (Tex.Cr.App.1979): “Murder for remuneration under Sec. 19.03(a)(3) involves, at a minimum, three individuals: (1) principal, (2) agent, and (3) victim.” However, we will not stop here, but will next see how other States with identically worded statutes have construed their statutes.

The Oklahoma Court of Criminal Appeals appears to be the only court which has truly addressed the issue. In Johnson v. State, supra, that court stated the following: “We find that the traditional application for this aggravating circumstance (remuneration) has been where a defendant has been hired or has hired another person to perform an act of murder,” citing this Court’s decisions of McManus and Doty, supra, both of which dealt with murder for hire situations, and not the situation that we have at Bar. In passing, the Oklahoma court, apparently without realizing that it was assuming a contradictory position, stated that a murder other than for hire could be committed where the motivation was primarily to obtain proceeds from an insurance policy or was done to secure a devise or legacy. It cited this Court’s decision of O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979). However, in Boutwell v. State, supra, the Oklahoma court returned to its previous meaning of the word “remuneration” and held in that cause that “[t]he aggravating circumstances of murder for remuneration is normally applied to the hired killer or to the hiree of a hired killer.” It further stated in Boutwell, supra, that “The wording and apparent purpose [of the statute] is not so broad as to include all killings for pecuniary gain ... Had the Legislature intended to provide a broader aggravating circumstance [such as ‘for pecuniary gain’] it would have done so ... In the instant case, neither the facts nor a plain reading of the Oklahoma statute support either of the State’s proposed constructions of Section 701.12(3) (that because the defendant was found with ill-gotten gains from the robbery-murder this established that he committed the offense for remuneration and that the killing occurred for financial gain). We therefore find that the aggravating circumstance of murder for remuneration is not supported by the evidence in the case.”

Before turning to the Legislative history of our capital murder “remuneration” statute, we pause to address O’Bryan v. State, supra. We first point out that the issue appellant presents to this Court was neither presented nor raised in that cause. There is, however, a great deal of language in the opinion that relates to the defendant’s “murdering his child in order to collect life insurance money.” Such language might cause one to infer that this Court was construing the statute to mean that capital murder for remuneration has as one of its elements the element of motive. However, motive is not an element of the offense of murder or capital murder. E.g., Garcia v. State, 495 S.W.2d 257 (Tex.Cr.App.1973). Nevertheless, even if we inferred from the facts that were adduced in this cause that the appellant’s motive in killing Beets was to profit by obtaining proceeds from life insurance or his pension benefits, this would not answer the question whether the appellant committed the murder for “remuneration”, as that term is usually defined. Thus, because the issue was neither raised nor addressed in O’Bryan, supra, O’Bryan is inapplicable to this cause on this point.

We now turn to the legislative history of the statute. See Government Code, Section 311.023.

We find from an examination of the material that we have located that pertains to the Legislative history of Section 19.-03(a)(3), supra, as finally enacted, which commenced as House Bill 200, as well as our own independent research on the subject, see, for example, the Practice Commentary to Section 19.03, supra, that there is not a single shred of recorded evidence or testimony that might reflect or indicate that when the Legislature of this State was considering enacting the provisions of Section 19.03(a)(3), supra, it intended other than that under Section 19.03(a)(3), supra, “at a minimum, three individuals: (1) principal, (2) agent, and (3) victim” would be involved, or, to put it another way, the statute was meant to cover only the situation where the accused has been hired or has hired another individual to perform the act of murder of another individual, and was not meant to include all forms of pecuniary gain. This is exactly the way Judge W.C. Davis on behalf of this Court construed the statute in Doty v. State, supra, notwithstanding the fact that Doty actually involved an attempted murder for hire situation. This also comports with the way our sister Court of Criminal Appeals in Oklahoma has construed its statute, which is identically worded to our statute. See Johnson v. State, supra, at 824. This, of course, is not to state that the Legislature could not have provided a broader aggravating element, as other States, such as California, have done; it is only to state that our Legislature, in enacting the aggravating element of murder for remuneration, which elevates the offense of murder to capital murder, did not choose to do so.

Given the facts and circumstances of this cause, we find and hold that the State failed to prove beyond a reasonable doubt that the appellant caused the death of Beets for remuneration. The facts did not establish that this was a “murder for hire” case.

The judgment of the trial court is reversed and the cause is remanded with instructions to enter a judgment of acquittal only for the offense of capital murder.

ONION, P.J., concurs in the result. W.C. DAVIS, McCORMICK and DUNCAN, JJ., dissent.

1

. The record reflects that Beets died intestate. See post. At the time of his death, Beets and appellant had been married less than one year, although they had previously lived together for an unknown period of time.

2

. The indictment obviously alleges the offense of murder and the aggravating element of remuneration, which causes the offense of murder to be elevated to capital murder. See, however, post.

3

. The special issues were as follows: “Was the conduct of the Defendant, Betty Lou Beets, that caused the death of the deceased, Jimmy Don Beets, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?”; "Is there a probability that the Defendant, Betty Lou Beets, would commit criminal acts of violence that would constitute a continuing threat to society?”

4

.Although the State presented no evidence at the punishment stage of the trial, appellant makes no challenge on appeal to the sufficiency of the evidence to sustain the jury's answers to the special issues.

5

. Also found in the boat were a medicine bottle containing nitroglycerine tablets and a life jacket. Several tablets from the bottle were found in the bottom of the boat.

6

. The appellant later told Smith that the reason she did not immediately answer the telephone was because she was outside in the yard and did not hear it ring.

7

. The boat was established to be Beets’ separate property, having been acquired before he and appellant married. On July 24, 1984, almost a year after Beets was reported missing, but before the skeletal remains of his body were found, appellant sold the boat to Martha and Michael J. Miller. During the trial, Martha testified to the facts of the sale of the boat by appellant to her and her husband. The record also reflects that Beets owned a house, which was also apparently his separate property. Appellant testified that she and Beets had tried to sell the house before Beets disappeared. The house mysteriously burned. Apparently, after letters testamentary issued, appellant, through counsel, unsuccessfully attempted to recover on a fire insurance policy that insured the house for fire loss.

8

.Evidence was adduced during the trial which established that approximately two years later, the appellant, through an attorney, applied for and received letters testamentary. At the same time, appellant, through the attorney, applied to have Beets legally declared dead. On March 5, 1985, approximately three months before the skeletal remains of Beets’ body were found and identified. Beets was legally declared dead by the presiding judge of the County Court of Henderson County. Appellant was made the administratix of Beets' estate. These proceedings appear proper under the provisions of Section 72 of the Probate Code. That section also provides that "Distribution of the estate to the persons entitled thereto shall not be made by the personal representative until after the expiration of three (3) years from the date such letters [testamentary] are granted.” However, on April 4, 1985, the attorney for Beets’ only natural child, James Donald Beets, filed a motion for new trial in that cause. On June 10, 1985, two days after appellant was arrested on June 8, 1985, the presiding judge of the County Court of Henderson County issued an “Order for Protection." At the time of trial, the issue of who would ultimately administer Beets’ estate, as well as who would ultimately financially benefit from his estate, had not been resolved. By the probate records, Beets died intestate.

9

. The jury was not then made aware of the extraneous offense testimony regarding Barker’s disappearance and death. This came into evidence after the trial judge conducted a hearing on appellant’s motion to exclude such testimony, which he overruled. See post.

10

. A “wishing well” is one of those objects supposed to be capable of magically conferring the fulfillment of one’s wishes. The Compact Edition of the Oxford English Dictionary at 3796.

11

. Dr. Randall L. Callison, who had been Beets' dentist during his lifetime, testified that he made a comparison of Beets’ skeletal remains with x-rays that he had and in his opinion "the bodily remains that were presented to me from the Dallas County Medical Examiners were the remains of Jimmy Don Beets.”

. See appellant's ground of error marked 9, ante.

12

. Dr. Petty, see ante, also testified that a fracture on Beets’ cheekbone could have been caused “by a fight with another man.”

13

. As applied to this cause. See, however, post.