Chapter 19
Criminal Homicide
19.10 Instruction—Capital Murder—Murder for Remuneration
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of capital murder.
Relevant Statutes
A person commits the offense of capital murder if the person intentionally or knowingly causes the death of an individual for [remuneration/the promise of remuneration].
[Include the following if an instruction on causation is appropriate but no issue of concurrent causation is raised by the facts.]
A person causes the death of another if, but for the person’s conduct, the death of the other would not have occurred.
[Include the following if the facts raise an issue concerning concurrent causation.]
A person causes the death of another if, but for the person’s conduct operating either alone or concurrently with another cause, the death of the other would not have occurred, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the person was clearly insufficient.
Definitions
Intentionally Causing the Death of an Individual
A person intentionally causes the death of an individual if the person has the conscious objective or desire to cause that death.
Knowingly Causing the Death of an Individual
A person knowingly causes the death of an individual if the person is aware that his conduct is reasonably certain to cause that death.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the death of [name] [insert specific allegations, e.g., by shooting [name] with a gun]; and
- this was done for [remuneration/the promise of remuneration] from [name].
[Include the following if the jury was instructed in the relevant statutes unit on concurrent causation.]
The state has the burden of proving that the defendant caused the death of [name]. To prove that the defendant caused the death of [name], the state must show, beyond a reasonable doubt, that either—
- [concurrent cause] did not contribute to causing the death of [name];
- [concurrent cause] was clearly insufficient, by itself, to cause the death of [name]; or
- the conduct of the defendant was clearly sufficient to cause the death of [name] regardless of [concurrent cause].
[Continue with the following.]
You must all agree on elements 1 and 2 of the offense of capital murder listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Defining Remuneration. The court of criminal appeals addressed the meaning of remuneration for purposes of reviewing the sufficiency of the evidence in two leading cases, Beets v. State, 767 S.W.2d 711 (Tex. Crim. App. 1987) (opinion on rehearing), and Rice v. State, 805 S.W.2d 432, 434–35 (Tex. Crim. App. 1991).
Together, Beets and Rice establish that although proof of a “promise of remuneration” may be sufficient, it is not necessary. Evidence failing to show a promise may nevertheless prove that the defendant acted “for remuneration” within the meaning of the statute.
Whether a murder is committed “for remuneration” depends on the defendant’s mental state. The issue is whether the defendant acted “in the expectation of receiving some benefit or compensation.” Rice, 805 S.W.2d at 434 (quoting Beets, 767 S.W.2d at 735).
On rehearing in Beets, contrary to the majority’s position on initial submission, the court held that—
[T]he definition of “remuneration” does not mandate the narrow construction requiring salary, payment, or reward paid to an agent by his principal as in a strict murder for hire situation. 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.
Rice established that the expected benefit cannot be too intangible. Thus proof that the defendant killed the victim primarily because the victim was a “snitch” but secondarily because killing the victim would assure the defendant’s continuing receipt of the benefits of membership in a prison gang was insufficient. More specifically, proof that the defendant expected an increase in status within the gang would not have been sufficient because such an increase in status “is too intangible to satisfy the remuneration element.” Rice, 805 S.W.2d at 435.
Jury instructions have sometimes included definitions of remunerations. In Speer v. State, 890 S.W.2d 87, 91 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d), for example, the jury was told:
Remuneration means a pecuniary reward given or received because of some act. The act must be done for the purpose of receiving some benefit. The focus is on the defendant’s state of mind and the State is obligated to offer evidence which establishes beyond a reasonable doubt the defendant’s intent or state of mind as related to an expectation of remuneration.
At least one court of appeals has, however, held that it is unnecessary to define remuneration in the charge. Neumuller v. State, 953 S.W.2d 502, 511 (Tex. App.—El Paso 1997, pet. ref’d); see also Reister v. State, No. 08-01-00373-CR, 2003 WL 21291035, at *17 (Tex. App.—El Paso June 5, 2003, pet. ref’d) (not designated for publication).
Arguably, a definition of remuneration or “for remuneration” might include one or both of two aspects of the case law. First, it might make clear that the state need not prove the defendant acted pursuant to an agreement by someone to compensate the defendant if the defendant killed the victim. Rather, the state’s case can be based on proof the defendant expected to reap a benefit from the victim’s death, as by collecting life insurance proceeds. The disagreement among the judges in Beets suggests this is not necessarily clear from the statutory language.
Second, the definition might make clear that under Rice some anticipated benefits are too “intangible” to satisfy the statutory requirement. But Rice’s discussion does not provide a clear standard for determining how “tangible” an anticipated benefit or advantage must be. More specifically, it is not clear Rice justified the instruction given in Speer that the benefit or advantage be “pecuniary.”
Given the absence of a statutory definition of remuneration, the lack of case law authorization for providing juries a definition, and the difficulty of articulating the apparent requirements of the case law, however, the Committee included no definition in the instruction.
Comment
Murder for remuneration is prohibited by and defined in Tex. Penal Code § 19.03(a)(3). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.