Rice v. State

805 S.W.2d 432, 1991 WL 7994
CourtCourt of Criminal Appeals of Texas
DecidedMarch 6, 1991
Docket69967
StatusPublished
Cited by21 cases

This text of 805 S.W.2d 432 (Rice v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rice v. State, 805 S.W.2d 432, 1991 WL 7994 (Tex. 1991).

Opinions

OPINION

OVERSTREET, Judge.

The appellant, Tony Rice, was convicted of capital murder for remuneration. V.T. C.A. Penal Code, § 19.03(a)(3). The jury returned affirmative answers to each of the special issues and assessed the death penalty. Article 37.071(b), V.A.C.C.P. The appellant challenges the sufficiency of the State’s evidence to prove the aggravating factor of remuneration. At the time of the offense, the appellant was an inmate in the Eastham Unit of the Texas Department of Corrections1 and a confirmed member of a prison gang called the “Texas Mafia.” The decedent, David “Rope” Robidoux, was also a member of the gang.

Robidoux was suspected of being a “snitch” and gang leaders wanted him killed. Since Robidoux had been recently transferred to the Eastham Unit, the “hit” was the responsibility of the “Texas Mafia” members in that unit: the appellant, Darrell Adams, Mark “Red” Fronkiewicz, and Ricky “Chicken Man” Meadows. Adams testified that Robidoux’s death was painstakingly planned. A brass rod from a toilet was sharpened. Robidoux was asked by his “brothers” to be in the day room for recreation on the next morning. Since the appellant already had one murder case pending against him, he volunteered to be the one to actually stab and kill Robidoux.

On the morning of December 16, 1984, Adams carried the homemade knife down to the day room in his boot. Accompanied by the appellant, Fronkiewicz, and Meadows, the meeting with Robidoux went according to plan. Before Robidoux arrived in the day room, Adams gave the knife to appellant. They lured Robidoux into a blind spot in the corner of the room where appellant stabbed him twenty-eight times. The four gang members hid the decedent’s body under an exercise mat, finished their recreation time, and were returned to their cells.

The “Texas Mafia” was an organized prison gang with a detailed constitution. Gang members were required to read the constitution, live by it and die by it. The gang was founded for one reason; to make money. The money was made primarily by selling drugs in the prison. Members, by the mere fact of their membership, were entitled to share in the profits of the gang’s activities. Membership in the gang required members to do anything that was required to further the gang’s purpose of making money, including kill.

The indictment that was handed down read:

On or about the 16th day of December, A.D., 1984, Tony Rice did knowingly and intentionally cause the death of an individual, David Robidoux, by stabbing him with a sharp metal object, for remunera[434]*434tion and the promise of remuneration from the Texas Mafia.

The indictment only alleges the source from which the remuneration was to be paid. It does not allege what the remuneration was, only that it came from the “Texas Mafia.”2 There was no evidence presented that a specific promise existed between appellant and the “Texas Mafia.” That is, there was no agreement, even an implicit one, that the appellant would receive compensation or a greater share of the gang’s profits for specifically killing Robidoux. There was, however, evidence that a gang member could expect greater “prestige” in the gang by “making a hit.”

Since appellant has challenged the sufficiency of the State’s evidence of remuneration, we must examine what remuneration is. Recent cases have sought to set parameters within which the State’s evidence on the issue must fall. See generally, Beets v. State, 767 S.W.2d 711 (Tex.Cr.App.1987); Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985); O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979); McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). From these cases, it is clear that murder for remuneration under V.T.C.A. Penal Code, § 19.03(a)(3) is not limited to murders for hire. We have held that the definition of remuneration does not require the narrow construction requiring payment by a principal to an agent. Rather, remuneration is given a broad definition which, as it pertains to this case, includes the idea of a reward given or received because of some act. Beets, supra, at 734.

From McManus forward, this Court has consistently adhered to the principle that:

The conduct proscribed by this section of the capital murder statute is the killing of any person in order to receive, or for the purpose of receiving some benefit or compensation. Thus the focus of the criminal culpability is upon the actor’s state of mind.

McManus, 591 S.W.2d at 513. In Beets, we again held:

The focus is on the actor’s intent or state of mind: Did the actor kill in the expectation of receiving some benefit or compensation ... ?

Beets, 767 S.W.2d at 735. Therefore, the State is obligated to offer some evidence of the defendant’s intent or state of mind as related to an expectation of remuneration. In McManus, this Court found that this element was satisfied by testimony that supported that the appellant acted out of his expectation to receive money for the killing. McManus, 591 S.W.2d at 513. In Beets and Duff-Smith we found that corroborated accomplice-witness testimony confirmed the defendant’s intent and/or state of mind regarding the remuneration aspect of the crime. Beets, supra, at 735; Duff-Smith, 685 S.W.2d at 33. In the instant case, the record is devoid of any such evidence.

The State has argued that the remuneration element is satisfied because the appellant killed Robidoux to insure the continuation of his share of the money from the gang’s illegal activities and because he expected his status in the gang to be enhanced. We find the argument to be plausible, but legally insufficient to satisfy the element of remuneration. Robidoux was suspected of being a “snitch.” Had he exposed the gang’s activities, the possibility existed that the profits the gang received from their illegal activities would be put in jeopardy. A rational trier of fact could have found that by shutting Robi-doux up permanently, the appellant was insuring his continued share of the gang’s profits. Even if we assume that the State’s contention is true, we find that the remuneration element as alleged was not satisfied as a matter of law.

We have defined remuneration as a reward given or received because of some act. Beets, supra, at 734. The killing must be done for the purpose of receiving some benefit. McManus, supra, at 513. The benefit must be received because of the killing. We have consistently held that the [435]*435focus is on the actors state of mind. The appellant killed Robidoux because the latter was a “snitch.” The killing occurred to prevent Robidoux from informing on the gang and to insure the continuation of the gang’s activities.

The fact that the appellant killed Robi-doux to insure his share of the profits is not enough. While the definition of remuneration is broad, the actor must expect to gain from some benefit assessed on the death of the victim. Beets, supra, at 736; McManus, supra, at 513. In Beets

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Rice v. State
805 S.W.2d 432 (Court of Criminal Appeals of Texas, 1991)

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805 S.W.2d 432, 1991 WL 7994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-state-texcrimapp-1991.