UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-41482

BETTY LOU BEETS,

Petitioner-Appellant,

v.

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee,

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Texas

_________________________________________________________________ June 28, 1999

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In 1985, Betty Lou Beets was convicted of the murder of

her fifth husband, Jimmy Don Beets. A Texas jury sentenced her to

death. Her conviction and sentence were affirmed on appeal. See

Beets v. Texas

, 767 S.W.2d 711, 730-48 (Tex. Crim. App. 1988)

(majority op. on reh’g). Following the unsuccessful prosecution of

a state writ, Beets sought feder al habeas relief from her

conviction. This court, sitting en banc , rejected several of the

issues she r aised. S ee Beets v. Scott

, 65 F.3d 1258 (5th Cir.

1995), cert. denied

, 517 U.S. 1157, 116 S. Ct. 1547 (1996). The

federal district court dismissed Beets’s remaining habeas claims,

and she has returned to this court alleging another constitutional

infirmity, this time in the application of Texas’s murder-forremuneration statute. S ee Tex. Penal Code § 19.03(a)(3). We agree2

with the district court that the statute was properly applied here

and, thus, affirm.

I.

Jimmy Don Beets disappeared on A ugust 6, 1983; he was

presumed drowned. Following his disappearance, Beets sought to

recover benefits from Jimmy Don’s retirement plan and several life

insurance policies. Before she could obtain the proceeds, however,

Jimmy Don’s body was found buried in Beets’s yard

– along with the

body of Beets’s fourth hu sband. Texas authorities charged Beets

with murder for remuneration in violation of Tex. Penal Code §

19.03(a)(3) (“Section 19.03(a)(3)”).

At trial, Beets contested, inter alia , the remuneration

element o f the State’s charge. Beets argued that Section

19.03(a)(3) only governs murders-for-hire. The State responded

that Beets killed her husband in order to recover the benefits from

his retirement plan, the proceeds of his life insurance policies,

and his estate. Evidence showed that Beets forged Jimmy Don’s

signature to an application f or life insurance six months before

his death. After his death, Beets sold Jimmy Don’s boat – his

separate property

– by forging his name to the certificate of

title. Jimmy Don’s home – also his separate property –

mysteriously burned down following failed attempts by Beets to sell

it; Beets then sought the proceeds of the fire insurance policy.

Not long after Jimmy Don’s “disappe arance,” Beets inquired of a

chaplain for the City of Dallas Fire Department, from which Jimmy

Don had retired, regarding her entitlement to any of Jimmy Don’s3

pension or life insurance benefits. On this evidence, the jury

found Beets guilty of murder for remuneration.

II.

Beets first asserts that her conviction under the “novel”

interpretation of Section 19.03(a)(3) adopted in her direct appeal

constitutes a violation of Due Process. See Beets , 767 S.W.2d at

733-37. A criminal statute must provide “fair warning” to a

defendant that certain conduct is prohibited. S ee M cBoyle v.

United States

, 283 U.S. 25, 27, 51 S. Ct. 340, 341 (1931) (“[F]air

warning should be given to the world in language that the common

world will understand, of what the law intends to do if a certain

line is passed.”). Consequently, the Due Process clause prohibits

“an unforeseeable and retroactive judicial expansion of narrow and

precise statutory language.” Bouie v. City of Columbia , 378 U.S.

347, 352, 84 S. Ct. 1697, 1702 (1964).

Beets portrays herself as a victim of an unforeseeable

application of Section 19.03(a)(3). She asserts that legislative

history, extrinsic commentary, and statutes and decisions in other

states characterized the statute as cov ering murder-for-hire, a

tripartite transaction in which A emp loys B to kill C. She also

maintains that the Court of Criminal Appeals had never expressly

held, before her case, that anyth ing other than a tripartite

murder-for-hire was proscribed.

A look at the statute challenges Beets’s position. Tex.

Penal Code § 19.03 provides, in pertinent part:

(a) A person commits an offense if he commits murder as

defined under Section 19.02(a)(1) of this code and:4 * * * *

(3) the person commits the murder for

remuneration or the promise of remuneration or

employs another to commit the murder for

remuneration or the promise of remuneration.

* * * *

(b) An offense under this section is a capital felony.

Tex. Penal Code § 19.03, amende d by Acts 1993, 73d Leg., ch. 900

(substituting “19.02(b)(1)” for “19.02(a)(1)” in subsec. (a)). The

statute defines three classes of prohibited conduct: (1) murdering

for remuner ation, (2) murdering for the promise of remuneration,

and (3) employing anoth er to commit murder for remuneration.

Beets’s actions fell within the first class of proscribed conduct;

she murdered her husband to recover life insurance, pension

benefits, and his estate. Standing alone, the language of the

statute sufficiently apprised Beets that the murder of her husband

to r ecover his estate and insurance benefits would constitute a

capital offense. As the Court of Criminal Appeals noted in her

direct appeal, “Remunerate encompasses a broad range of situations,

including compensation for loss or suffering and the idea of a

reward given or received because of some act.” Beets , 767 S.W.2d

at 734. The court’s interpretation, far from offering a surprising

or far-fetched construction, stated t he everyday meaning of the

words used by the legislature.

An earlier decision o f the Court of Criminal Appeals,

rendered four years before Jimmy Don’s murder, heralded the scope

of Section 19.03(a)(3) and, thus, the prospect of Beets’s capital

prosecution. S ee O’Bryan v. Texas

, 591 S.W.2d 464 (Tex. Crim. App.5

1979). In O ’Bryan

, the court affirmed the conviction of a

defendant who killed one of his children in an attempt to recover

the proceeds of recently purchased insurance policies. S ee id. at

467. While the defendant did not even raise and the court did not

specifica lly address the scope of Section 19.03(a)(3), the court

described the circumstances surrounding the murders as a means of

assessing the defendant’s propensity to commit future violent

crimes. In its discussion, the court stated,

A more calcu lated and cold-blooded crime than the

one for which appellant was convicted can hardly be

imagined. Appellant murdered his child in order to

collect life insurance money. The record reflects Months

[sic] of premeditation and planning.

* * * *

Appellant, in order to execute his plan to murder

his son and to collect the life insurance proceeds, and

to escape detection in doing so, was willin g to and

attempted to commit murder four more times.

* * * *

In addition, the jury had b efore it evidence that

the appellant’s crime was motivated solely by financial

gain.

Id. at 480-81. Not only does the defendant’s conviction in O ’Bryan

implicitly undermine Beets’s fair warning argument, but the O’Bryan

cou rt explicitly relied on the “circumstances of the capital

offense” in assessing the defendant’s propensity to engage in

future acts of violence, and it emphasized the remunerative aspects

of the killing. Id. at 480.

The cases cited by Beets, which purportedly limit

Section 19.03(a)(3) to murder-for-hire prosecutions, fail to

support her fair warning argument. The decisions in H obbs v.1 The State did not waive its arguments on this issue. Texas

consistently argued that the language of Section 19.03(a)(3) provided Beets with

sufficient notice of the illegality and consequences of her actions.

6 Texas , 548 S.W.2d 884 (Tex. Crim. App. 1977), D oty v. Tex as , 585

S.W.2d 726 (Tex. Crim. App. 1979), and McManus v. Texas

, 591 S.W.2d

505 (Tex. Crim . App. 1980), involved the application of Section

19.03(a)(3) to classic tripartite murder-for-hire scenarios. The

decisions interpret the statute under the presented facts, but they

imply no limit to the statute’s scope. Even after these opinions,

Beets could not have reasonably c oncluded, given the express

language of Section 19.03(a)(3) and O’Bryan

, that her contemplated

conduct would not amount to capital murder.

When, as here, a statute specifically prohibits certain

conduct, a dearth of specific case law and legislative history that

relates the origin of the statute to a particular factual predicate

do not establish a Due Process violation. Likewise, secondary

legal sources and decisions from other state courts cannot create

a c onstitutional uncertainty in the teeth of the statutory

language. Section 19.03(a)(3) and the notorious O ’Bryan case

provided Beets with sufficient notice in 1983 that her contemplated

actions would amount to a capital murder. 17 III.

Beets next urges that the jury instructions were

constitutionally defective. Beets contends that the jury

instructions permitted a guilty verdict if she committed the murder

“intentionally” or “knowingly” for remuneration. Because the

statute permits conviction of capital murder only if a defendant

acts intentionall y, Beets asserts that a verdict premised on the

lower state of mind would violate due process.

We disagree with Beets’s init ial premise. The trial

court did not instruct the jury in the alternative regarding the

mens rea necessary to commit murder-for-remuneration. Although the

jury was instructed that a person could intentionally or knowingly

commit the underlying murder, the trial court’s instructions

permitted the jury to find the capital off ense of murder-forremuneration only “if [the murder] is committed for remuneration .”

(emphasis added). Jurors were further instructed,

[I]f you find from the evidence beyond a reasonable doubt

that [Beets] . . . did knowingly or intentionally cause

the murder of

. . . Jimmy Don Beets . . . ; and you

further find beyond a reasonable doubt that the m urder

was committed for remuneration . . . then you will find

[Beets] guilty of capital murder . . . .

(emphasis added). The trial court consistently distinguished the

mens rea required to commit murder from the state of mind that the

jury must necessarily find rega rding the remuneration element of

the capital offense. The instructions required the jury to find

that Beets committed the murder in order to receive, or “for,”

remuneration. Under Texas precedent, this instruction was

sufficient. See

, e.g.

, Davis v. Texas , 597 S.W.2d 358, 360 (Tex.8

Crim. App. 1980) (going to store “in order to commit robbery”

c o nstitutes intentional conduct); see also

, e.g.

, Black’s Law

Dictionary 644 (6th ed. 1990) (defining “for” as “[t]he cause,

motive or occasion of an act” and “the end with reference to which

anything . . . is done”). No constitutional violation occurred.

IV.

Contrary to Beets’s final, strained argument, Section

19.03(a)(3) clearly limits the circumstances under which a murder

becomes a capital offense. Mere receipt of a benefit following a

murder does not constitute murder-for-remuneration under the

statute. An individual must commit the predicate murder for the

purpose of receiving remuneration, just as Beets did. As such, the

statute establishes a genuine limit on the class of death-eligible

murderers. S ee Zant v. Stephens

, 462 U.S. 862, 877, 103 S. Ct.

2733, 2742 (1983) (“[A]n aggravating circumstance must genuinely

narrow the class of persons eligible for the death penalty and must

reasonably justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder.”). Moreover,

the Texas sentencing phase performs a further narrowing function by

requiring the jury to find affirmatively on certain special issues

before sentencing a defendant to death. S ee Selvage v. Collins

,

972 F.2d 101, 103 (5th Cir. 1992).

V.

This panel will not revisit the en banc court’s ruling in

Beets v. Scott , 65 F.3d 1258 (5th Cir. 1995), c ert. denied

, 517

U.S. 1157, 116 S. Ct. 1547 (1996). The holding is binding on this9

court as the law of the case and review of the decision was denied

by the Supreme Court.

VI.

Finding that Be ets has raised no constitutional error,

this court affirms the decision of the district court. Beets was

placed on notice by Tex. Penal Code § 19.03(a)(3) that the murder

of her husband for the purpose of recovering his estate, life

insurance proceeds, and pension benefits rose to the level of a

capital offense. Considering the evidence, the jury properly found

that the murder was committed for remuneration. Accordingly, Beets

was appropriately sentenced to death for her crime.

AFFIRMED

.