In 1997, 32-year-old Celeste Beard hit the jackpot. That year, the
thrice-divorced Austin housekeeper married her 75-year-old millionaire
employer, Steven Beard. Suddenly, Celeste had it all: a Texas mansion,
plenty of money, and a stable life for her two daughters.
But on October 2, 1999, Celeste's picture-perfect life
came crashing down with one blast from a 20-gauge shotgun. That night,
an armed intruder slipped into Steven's bedroom and fired a
point-blank shot directly into his chest.
Steven survived the initial shot, but five months
later, died from complications related to his injury. By then,
however, Texas authorities had a suspect in custody - Celeste's
lesbian best friend, Tracey Tarlton. The former bookstore manager
eventually implicated Celeste in the plot to kill her husband.
At the trial, defense attorneys alleged Tarlton was
simply a jealous woman with a terrifying and deadly love interest in
Celeste. Prosecutors, on the other hand, claimed that Celeste had
manipulated her friend into perpetrating the shooting in order to
inherit Steven's vast fortune.
To support their claim, prosecutors even called
Celeste's own daughters to the stand. Both girls testified that their
mother had sought a hit man to silence Tracey before her arrest. The
jury found Celeste guilty of conspiracy to commit murder and sentenced
her to 20 years in prison.
Celeste Beard Johnson,
(born February 13, 1963) is a convicted American murderer currently
serving a life sentence at the Mountain View Unit in Gatesville,
Texas. She is Texas Department of Criminal Justice offender #1157250.
One of the reasons cited by the prosecution for the
murder was that Steven Beard, a wealthy former television executive,
had grown tired of paying for Celeste's extravagant lifestyle. Steven
worked in radio and advertising in Dallas in the 1950s and 1960s,
starting at the bottom and climbing steadily up the business ladder.
He switched to television in the 1970s, and by 1981
had found financial success as a partner and general manager of KBVO
in Austin. In 1985, the station became one of the original affiliates
of the fledgling Fox network. It grew in value and stature over the
following decade, and on October 3, 1994, a year after his first
wife's death, Beard sold his share of the station for a small fortune.
On February 18, 1995, Celeste and Steven were
married at the Austin Country Club.
Celeste ordered her lover to shoot her husband,
Steven Beard, a retired Fox network television executive and self-made
multi-millionaire. The event took place on October 2, 1999. Steven
died in a hospital on January 21, 2000 as a result of the gunshots.
Beard's accountant would later reveal that Celeste
spent $321,000 during October and November 1999, followed by an
additional $249,000 by December 10, and another $100,000 in the six
weeks ending March 31, 2000. According to the prosecution Celeste only
married Steven Beard for his money.
In 2003 Celeste was sentenced. Celeste received a
mandatory life sentence and will be eligible for parole in 2043,
serving at least 40 years for the crime. Despite her conviction,
Celeste maintains her innocence.
Crime author Kathryn Casey covered the Celeste
Beard case in her mass-market paperback, She Wanted it All: A True
Story of Sex, Murder, and a Texas Millionaire. Also, author Suzy
Spencer wrote a book, The Fortune Hunter, about the case.
The case has been covered in a one-hour show of
Dominick Dunne's investigative programme, Dominick Dunne's Power,
Privilege, and Justice, and the crime series American Justice
aired an episode on the case, titled "For Love Or Money."
The case was also profiled on the Oxygen Network's
series Snapped The CI network also covered the case in an
hour-long show. Law & Order had an episode, "Obsession," during season
15, taking a headline from news coverage of the case, and on the
Investigation Discovery Network's series On the Case with Paula
This case is covered in Evil Wives, Deadly women
whose crimes knew no limits, John Marlowe, 2009, ISBN
Who: Celeste was born on Feb. 13, 1963, and
was one of Edwin and Nancy Johnson's adopted kids. Celeste has claimed
that she was abused as a child and that she attempted suicide during
puberty. At 17, she got pregnant and went on to have twins, Jennifer
and Kristina. Celeste was married 5 times. Her fourth husband was
Steven Beard whom she met while working as a waitress at the Austin
Country Club. Steven Beard had made his mark as the co-owner of a
local television station. He was rich, powerful, and an important
member of the community. He had a long marriage to his first wife who
had passed away from cancer. He soon began dating Celeste and they
were married on Feb. 18, 1995. Beard was 68, Celeste 30.
What: Steven Beard was shot in the stomach
and died as a result of an infection (caused by the open wound) 4
months later. Police tied the incident to Celeste's friend, Tracey
Tarlton. Celeste had met Tracy when she was in a mental health
facility, St. David’s Pavilion, after threatening to commit suicide.
Celeste's marriage to Steven had hit a rocky point and she had been
spending a lot of money. Steven had threatened to cut off her credit
cards and started talking about divorce.
Tracey was arrested and charged with assault. The
police thought there might be more to the story when people who were
interviewed said that Celeste had spoken negatively about Steven.
Tracey remained silent. It wasn’t until Tracey discovered that Celeste
had remarried after Steven’s death, that she told police that Celeste
had persuaded her to shoot Steven. It was rumored that Tracey and
Celeste had had a lesbian relationship and that getting rid of Steven
was the only way they could be together.
Celeste was eventually arrested. After a lengthy
trial, she was convicted of murder and received a mandatory life
sentence. She will not be eligible for parole until 2043.
Where: Celeste and Steven lived in a wealthy
neighborhood in Austin, TX.
When: Celeste and Tracey met in March 1999.
The shooting took place on Oct. 2, 1999, and Tracey was arrested on
Oct. 8. Steven died in a hospital on Jan. 21, 2000, as a result of the
gunshots. Celeste was arrested on March 28, 2002, and sentenced in
The Latest: Tracy was recently released on
parole after serving 10 years of her sentence. She currently resides
in San Antonio. See how the town is helping Tracey Tarlton establish a
life on the outside.
In the Media: There have been several books
written on the case including The Fortune Hunter by Suzy
Spencer and She Wanted It All: A True Story of Sex, Murder, and a
Texas Millionaire by Kathryn Casey. Celeste’s mother has created a
web site declaring her daughter’s innocence and is publishing a book
of Celeste's prison letters to her. You can even become pen pals with
For Love or Money
August 4, 2004
is known for doing everything big. And in Austin, millionaire business
tycoon Steven Beard was living large with his new wife, Celeste.
was always very generous. He gave me lovely jewels, lots of jewelry,
lots of everything,” says Celeste.
had two houses, including a custom-built Texas palace in one of
Austin’s wealthiest neighborhoods.
spent a lot of money,” says Celeste. “I spent a lot of money redoing
the houses all the time.”
Beard had made his mark as the co-owner of a local television station.
He was rich, powerful, and an important member of the community.
fairy-tale life was soon shattered. Correspondent Peter Van Sant
reported last May on this bizarre murder mystery.
and Steven met at the Austin Country Club. Steven was recently widowed
after a 45-year marriage. Celeste was a waitress.
wanted somebody to take care of me and he wanted someone to take care
of and so he asked me to move in,” says Celeste. “And I was, like, OK.
He was just what I needed at the time and that’s how it started.”
says she had finally found a provider and protector in Steven, after
surviving a hard-luck life filled with depression and debt.
matter what I ever did, good or bad, in my life, I could tell Steven
and he would forgive me,” she says.
five years into her marriage, Celeste’s fairy-tale life began to
unravel in the early morning hours of Oct. 2, 1999.
911: 911, what’s your emergency?
Steven: I need an ambulance. Hurry.
a call that would launch one of Austin’s most bizarre mysteries.
Steven Beard, alone in his bedroom, had called for help.
Steven: My guts just jumped out of my
stomach. They blew out. Yeah, they blew out of my stomach. They’re
lying on my stomach.
911: OK, they’re lying on your stomach?
Steven: Yes, I’m in bed. I’m in awful pain.
911: I’m having a hard time figuring out what happened.
Steven: I don’t know what happened. I’ve never had this happen
didn’t know who Steve Beard was,” says deputy Alan Howard, who arrived
on the scene at 3 a.m. “I didn’t know he was famous. A lot of people
knew him. He was rich and powerful.”
arrived at the scene, Howard said the Beard estate was completely
dark. He rang the doorbell, banged on the door, yet he received no
answer. But the 911-dispatch operator still had Beard on the phone.
then spotted Beard through a window and broke the sliding glass door
on the bed. It looked bad. You look at it and it’s not something you
see everyday,” remembers Howard. “Everybody was thinking, he’s had
some type of surgery. Hernia or something, and he’s blown his
after Sgt. Gregory Truitt arrived, Celeste and her daughter Kristina
emerged from a separate wing of the house where they’d been sleeping.
heard a woman ask me, “What are you doing in my house? What’s going
on,” remembers Truitt. “They hadn’t heard our knocks, our phone calls,
all of a sudden something woke them up.”
told Beard’s wife that her husband was badly bleeding and an EMS
helicopter was on its way.
immediately started screaming, saying, ‘Don’t let him die, don’t let
him die. And she was very frantic. The daughter was very composed and
rational,” says Truitt.
later, it became clear that this wasn’t a medical problem they were
dealing with. It was a crime scene.
talking to Celeste Beard and the daughter, and deputy Thompson came in
the room to inform me that a shotgun shell had been found in the bed
or near the bed where Mr. Beard was,” says Truitt.
that point everything changed,” adds Howard. “Your whole attitude
changed and you really started looking.”
drawn, police began a room-to-room search of the house.
bathroom had been ransacked,” says Howard. “And some clothing had been
pulled out of the drawers. There was a lot of clothing on the floor.”
Although Steven’s wallet and some of his cash appeared to be missing,
police also noticed that most of the couple’s valuables were not
taken. And something about the way the drawers were ransacked looked
too deliberate. At this point, police started to wonder, was this a
burglary gone bad or a murder attempt staged to look like one?
the EMS helicopter arrived.
wheeled him out in a gurney and I come up to him, and I told him I
loved him,” remembers Celeste. “He’s talking to me, he says he loves
survived that night, but spent the next four months in the hospital,
with Celeste at his side.
always smiling when she was there,” says Ana Presse. She and her
husband, Phil, were the couple’s closest friends.
think she was there darn near every day,” adds Phil. “She would talk
to the doctors, make sure she was getting proper medical treatment,
demand things of the nurse, make sure the wounds were taken care of.”
everything for me,” says Celeste, which included financing a
successful custody battle for her twin daughters, Kristina and
Jennifer, from a previous marriage. “I wanted everything for them that
I didn’t have.”
goal was for Steve to adopt the girls. It was all for the girls, so
that the girls would have some security,” says friend Ana.
years after he married Celeste, Steven adopted the 17-year-old twins
-- and Celeste finally had a complete family.
just travel. I loved traveling. And we would take big trips all over
the world,” remembers Celeste. “Steve was a blast. He would get on
those dang wave runners with me and go 55 miles an hour on the lake,
and we would do that every weekend. We’d go out on the lake.”
was 75, but his age didn’t slow him down. Celeste was only 37.
said being around me made him young, it made him feel young,” says
like a teenager,” adds friend Phil. “He was so in love with Celeste,
it was hard for him to contain himself, really.”
January 2000, four months after he was shot, Steven died.
talking to him,” says Celeste. “I miss being, when I was with him, I
was so sure of everything.”
Celeste’s world fell apart. “I was just in a severe emotional
depression. I was drinking heavily. I was taking a lot of medication.
And I didn’t want to be alone … I loved him with all my heart.”
Steven’s death was only the first of many losses that Celeste was
about to face. Within days of the shooting, police made an arrest that
couldn’t imagine anybody I knew being involved in the shooting of my
husband,” she says.
The suspect was one
of Celeste’s best friends.
August 4, 2004
friends and family were at Steven Beard’s side at the hospital in
Austin, police received a tip that led them to the home of Tracey
introduced ourselves. She invited us in,” says Det. Rick Wines. “We
asked if she owned a 20-gauge shotgun, and she said yes, she did.”
days, Wines linked Tracey’s gun to the crime scene.
shotgun shell that we found at the scene came from the shotgun that we
found in her house,” says Wines. “You know, two and two to me has
always been four.”
8, 1999, Tracey Tarlton, the well-respected manager of Austin’s
largest independent bookstore, was arrested.
it for Celeste,” says Tracey.
what’s more, she and Celeste were the best of friends.
each other for the most part, every day at some point or another,”
remembers Tracey. “Celeste is fun. She’s fun-loving.”
genuinely liked her. I mean, she was a nice person,” says Celeste.
“She had a lot of good qualities. I cared very much for Tracey as a
today, Tracey’s version of almost everything that happened back in
1999 is completely different from her one-time best friend’s,
including the state of the Beard marriage.
Celeste love her husband?
says Tracey. “She often called him disgusting. She thought that he was
a ridiculous, old, fat man.”
also says Celeste told her it wasn’t just Steven’s physical appearance
that she hated. It was the way he treated her. “He just emotionally
crushed her all the time, ran her down, and belittled her and berated
her and taunted, tortured her emotionally until it left her in these
really depressed suicidal states.”
didn’t Celeste just get a divorce?
would become terrified about that,” says Tracey. “She would say she
couldn’t, that he would hunt her down. She could never get out from
felt like a prisoner in her own home, says Tracey. So to escape her
husband, she came up with outlandish ways to knock him out.
drank a lot of vodka, but she would take the vodka bottle and pour
most of it out and fill it up with everclear, which is higher proof
alcohol,” says Tracey. “Or she would take sleeping pills and grind
them up and put them in his food.”
says this would make Steve pass out early so Celeste could leave.
Also, because of his age, this would help serve as a slow poisoning.
days before Celeste and Steven were leaving for a long trip to Europe,
Tracey says Celeste couldn’t take it anymore.
came over and was just hysterical, beside herself,” remembers Tracey.
“She said, ‘I’ll never survive this trip.’”
says Celeste had her totally convinced that Steve’s abuse was going to
lead her to suicide.
wanted to help her,” she says.
days later, Tracey drove over to the Beard estate with a weapon in
gun was given to me by my father who had had it engraved for me. It
has my name on it,” says Tracey.
stepped into a space that was just numb when I went into that bedroom,
and I shot him."
is willing to commit murder and risk the death penalty for a friend?
says she and Celeste were more than friends. They were lovers. And
even after Tracey was arrested and released on bond for wounding
Steven Beard, Tracey says she and Celeste continued their affair.
says pictures of them dancing at a party, attending a wedding, prove
they were a couple.
wasn’t secretive,” says Jeremy Ellis, who worked with Tracey at Book
People, the trendy bookstore she managed. “Everyone in the store knew
she was dating someone named Celeste. She spoke about her like she was
her girlfriend. They were sort of physical, close with each other and
I thought, ‘Well, good for Tracey.’”
months after Steven died, Tracey says her relationship with Celeste
“Celeste started going bananas, hysterical a lot of the time,”
remembers Tracey. “We both said, ‘We’re not going to do this anymore. You
won’t see me again.’”
Tracey read something about Celeste that would change everything.
weeks after we'd split up I read an article in the newspaper,” she
says. “And in that article, there were a lot of things said.”
included the startling news that Celeste had gotten remarried to a man
she met in a bar named Cole Johnson.
off at her honeymoon in Aspen,” says Tracey. “Even I couldn’t overlook
that. It was like everything started unraveling very quickly for me
after that article.”
then on, Tracey became more and more convinced that all of Celeste’s
stories were lies.
started realizing Celeste had been lying to me all along, that this
man was not abusing her, that she had married him for his money, that
she had been lying to me about our relationship, all of it was a
began to suspect she'd been set up for murder. “I think she
manipulated me from the beginning,” she says.
little more than a year after Steven died, Tracey, who’d already been
charged with his shooting, was now taken into custody on charges of
what the truth is,” says Tracey. But the truth, she claims, was that
Celeste was the mastermind behind Steven’s murder.
more than a year, Tracey sat in jail keeping Celeste’s involvement in
Steven’s shooting a secret. But in March of 2002, just days before her
own murder trial was set to begin, Tracey struck a deal with
exchange for a 20-year sentence, Tracey would testify that it was
Celeste who had planned the murder of Steven Beard. Two years after
her husband’s death, Celeste Beard was arrested for capital murder.
Tracey’s story is convincing. But can she be believed?
crazy,” says Celeste. “That’s the only way I can describe her. She’s
August 4, 2004
DeGuerin, one of the most colorful and accomplished lawyers in Texas,
is as at home on the range as he is in a courtroom.
success can be measured on his 150-acre ranch in the Texas hill
country, complete with its prize longhorns, fine horses and vintage
DeGuerin is Celeste Beard’s lawyer, and he’s dead certain as to just
what this murder is all about. “It’s about obsession. It’s about a
woman that became deathly obsessed with Celeste, and would do anything
to have her.”
Celeste and Tracey lovers?
says DeGuerin. “Tracey wanted it, but Celeste rebuffed her,” he says.
“She had this fantasy of being Celeste’s lover.”
never had sex with Tracey,” says Celeste. “Never.”
their difference in age, Celeste is adamant that she was attracted to
much more than Steven Beard’s wallet.
never saw myself as pretty. I never saw him as obese,” says Celeste.
“I never saw him as 70. And he said being around me made him young.”
according to friends like Marilou Gibbs, the marriage was a good one.
“Celeste loved Steve very much,” says Marilou. “Steve gave Celeste
something she’d never had in her life, unconditional love, a man who,
no matter what she did, he thought it was terrific.”
became like a surrogate mother to Celeste. She understood exactly why
the 70-year-old millionaire believed he’d finally found his dream
can’t meet and be around Celeste without loving her,” says Marilou.
and her daughter, Dana, witnessed the good life Steven gave his new
bride. The friends socialized together at the couple’s new weekend
house, and at the mansion the newlyweds built in Toro Canyon, one of
Austin’s most exclusive neighborhoods.
had fountains and everything. And bronze statues,” says Marilou. “It
everything with Steven. I could have spent, and I did, on whatever I
wanted, whenever I wanted. I did whatever I wanted,” says Celeste.
Beard was her savior. She loved him. He loved her.
tale unfolded, and Celeste, the former waitress, now lived like a
of my spending was compulsive,” says Celeste, who had probably 400
purses – one to match each pair of shoes she had. She says that the
biggest tab she ran up in one day was $50,000.
“Celeste is not a gold-digger. She did spend a lot of money,” says
DeGuerin, Celeste’s lawyer. “And Steve showered money on her. They
were happy. She made him happy. He made her happy. He gave her
anything she wanted.”
could Tracey Tarlton ever describe Celeste as the selfish,
manipulative mastermind of a murder?
sick, sick, sick,” says DeGuerin. “And everybody that’s ever seen her
has said that.”
included a string of doctors and psychologists who over the years had
diagnosed Tracey as being mentally ill.
diagnosis is bipolar with psychotic tendencies,” says Tracey, who said
she has heard voices in the past, telling her that she needed to kill
herself. “You know you need to end it. This is the right thing to do.”
According to this psychological report from the Menninger Clinic, in
Topeka, Kan., Tracey was also prone to substance abuse and depression.
And doctors confirmed her suicidal tendencies.
“Suicidal, I’ll go with that,” says Tracey. “I have been suicidal
many, many years. You know and still am sometimes.”
1999, Tracey sought treatment at a psychiatric hospital in Austin.
Within hours, she met a fellow patient who also had a troubled past.
That patient was Celeste Beard.
severely depressed,” says Celeste.
Clinical depression had, in fact, haunted Celeste. She alleges her
problems stemmed from a troubled home, a disturbing childhood and
claims of sexual abuse. And as Celeste grew up, she began to slip from
an “A” student, to a deeply troubled adolescent.
series of failed marriages, dead-end jobs and mental health problems
that included post traumatic stress disorder and major depression
continued through her adult life.
taken pills, and she’s even cut her wrists. “Wanting to live is a
struggle sometimes,” says Celeste.
this Celeste, not any Cinderella, who met up with Tracey in a hospital
ward. Two women, both mentally ill and emotionally vulnerable.
was needy and I was needy, too,” says Tracey. “We became friends.”
didn’t bother Celeste when Tracey told her she was a lesbian.
didn’t look at her as Tracey, the lesbian,” says Celeste. “I looked at
her as Tracey, my friend. She was kind. And she could be considerate.”
“Celeste was extremely flirtatious with me from the beginning,” says
Tracey. “And I responded in kind. Eventually, she came into my room
and kissed me. She wanted to have a sexual relationship with me.”
Celeste calls this all fantasy. “Obviously. Because she didn’t do that
Whatever the true nature of their relationship, it would continue when
they were both discharged from a psychiatric hospital in Austin.
Celeste knew that Tracey was mentally troubled, that she had been
delusional and heard voices, why did she decide to bring her into
contact with her family?
obviously I was making bad judgments,” says Celeste.
According to the district attorney’s office, Celeste’s bad judgment
went way too far. And on March 29, 2002, more than two years after
Steven Beard died, Celeste was charged with plotting her husband’s
denies ever manipulating Tracey into shooting her husband. “I had no
idea Tracey was homicidal.”
jury would have to grapple with more than just murder and an alleged
lesbian relationship. They’d have to somehow see through the smoky
haze of mental illness. What would the truth even look like?
end, this case stands or falls with the believability of Tracey
Tarlton,” says DeGuerin. “She’s testifying to save her own skin. She’s
delusional. She’s crazy.”
The Jury Believe?
August 4, 2004
the jurors a sense of what life was like in the Beard house, the
prosecution plays a recording of a telephone conversation between
Celeste and Kristina.
Celeste on audio tape: “You’d better get
your ass home tonight.”
Kristina says she recorded it in hopes of one day playing it back to
Celeste, so she’d understand how verbally abusive she could be.
Celeste on audiotape, screaming, before dropping the phone and wailing
in the background: “And I’m sorry that I
have all of these mental problems. Just as soon as I get home, I feel
like just ... sticking a knife down my throat..."
real clear who the emotionally abusive one is,” says Weitzel. “And who
the bad guy in the relationship is. And it’s not these girls.”
“There’s no excuse for what I did, and I’m sorry that I talked to my
daughter that way,” says Celeste about her recorded conversation with
Kristina. “I used to say if I didn’t cuss her out and didn’t talk to
her like that, then I wouldn’t be sitting here.”
DeGuerin, Celeste’s attorney, decides not to put his client on the
stand. But he brings in some of her friends.
definitely loved Celeste, and Celeste definitely loved Steve,” says
friend Dawn Maddigan. “They were kind to each other and devoted.”
DeGuerin also calls three mental health experts to the stand who had
been involved with Tracey at various psychiatric facilities. They say
Tracey’s mental problems are so severe, she could have imagined, even
fabricated, a romantic relationship with Celeste.
Howard Miller: “Tracey had a need to believe that Celeste was the one
who loved her.
She clearly persisted in a delusional belief.”
more than one month of testimony, both sides present their final
she in a relationship with Tracey Tarlton? And did that relationship
lead to Tracey Tarlton, at Celeste Beard’s encouragement, to shoot
Steven Beard,” asks co-prosecutor Gary Cobb. “I think the evidence is
overwhelming on that.”
also says that Celeste wanted Steven dead because she would inherit
millions. A divorce would have been an entirely different financial
going to show it to you right now. Here, it is right here,” says Cobb,
turning a giant placard over, revealing a blank side. “On the back.
Look closely. She would have had a big pocket full of empty.”
Weitzel, lead prosecutor, summed it all up. “Folks, if you say that
Celeste Beard is not guilty, with all of this evidence, then you’re
going to tell her that her money can buy anything.”
soap opera that we went through for four weeks does not prove Celeste
is a killer,” says DeGuerin, who tells the jury that money had nothing
to do with Steven Beard’s murder.
he argues, it was one woman’s obsession. “Tracey Tarlton killed Steven
Beard on her own, for her own selfish reasons, for her own sick
reasons. The only evidence they have is Tracey Tarlton. And Tracey
Tarlton can’t be believed, because she’s a crazy woman.”
I be believed because of my mental health,” asks Tracey. “I don’t know
about that. You know? All I know is that I’m telling you the truth.”
have not proven Celeste Beard guilty because they have not
corroborated the unbelievable testimony of Tracey Tarlton,” says
But who will the
two-and-a-half days of deliberation, the jury has decided Celeste
the jury find the defendant, Celeste Beard Johnson, guilty of the
offense of capital murder.”
life is over. I’m devastated,” says Celeste, crying. “I’m scared. I’m
terrified. I don’t want to go to prison. I don’t want to be with
people that have actually murdered somebody.”
DeGuerin, walking out of courtroom, says, “We’re all very, very
disappointed. We believe sincerely in Celeste’s innocence. We believe
this conviction is wrong.”
next day, before Celeste is sentenced, her daughter Kristina takes the
stand and speaks directly to her mother for the first time in nearly
did I ever do to you, or Jenn, except love you? And this is how you
treated us, like trash. We’ll go on. Everybody will get to go home but
you,” says Kristina.
say we turned on you. Well, you turned on us. You turned on the whole
Beard family. He let you into his home, loved you, honored, obeyed
you, and you violated him and murdered him. You are guilty. Time will
heal all wounds, and of course, we will all go on,” adds Kristina,
choking up in tears. “Shame on you!”
now time for Celeste to receive her sentence. The prosecution had
agreed to not seek the death penalty. She was sentenced to life in
lost her husband, her home, and now her freedom. “And I’ve lost my
children,” says Celeste, crying. “I bear responsibility, and I feel
responsible in the fact that I brought Tracey into our lives.”
I responsible for Tracey going into the house and shooting Steven? No,
I’m not responsible for that.”
Beard's lawyers are appealing her conviction.
law makes it almost impossible for Celeste to collect any inheritance.
In the year since 48 Hours first aired this broadcast,
the future of Steve Beard's $10 million estate has remained unsettled.
But it's likely to be divided among the twins and his three children
from a previous marriage.
has no chance of parole until she serves 40 years of her life
sentence. By then, she'd be 80. As for Tracey Tarlton, who pulled the
trigger and turned state's evidence, she's eligible for parole after
doing 10 years of her 20-year prison term.
Her Own Children
May 14, 2003
Celeste Beard’s possessions from her years of wealth and extravagant
spending now fit in a single, small closet.
quite a fall from the fairy-tale life,” says friend Marilou.
friends and foes gather on the first day of her murder trial, Celeste
risks losing something money can’t buy -- her freedom.
“Celeste is innocent, and it’s all on my shoulders,” says DeGuerin,
of people think the Bible says that money is the root of all evil,”
says co-prosecutor Gary Cobb. “And what the Bible actually says is
that the love of money is the root of all evil. Celeste Beard loved
money more than she loved anything else. Because of that, she had
Steve Beard killed.”
couldn’t stand Steve Beard,” says lead prosecutor Allison Weitzel, in
her opening statement. “She talked to people about how she hated him.
He disgusted her.”
says while Celeste hated her husband, she loved his money, and used
her lover, Tracey Tarlton, to get it.
happened here is a simple case of a greedy, manipulative defendant who
took advantage of a mentally ill woman who was in love with her,” says
Weitzel. “She told Tracey that with Steve gone, they could be
is a case of fatal attraction. It’s a case of obsession,” says
DeGuerin, Celeste’s attorney. “Tracey Tarlton is psychotic. She’s been
diagnosed as having delusions, as hearing voices that aren’t there, as
seeing things that aren’t there.”
DeGuerin made the case that Tracey had a mental condition that created
rich fantasies that led to murder: “The sexual relationship existed
solely in Tracey’s mind. Tracey shot Steven Beard for her own selfish
and sick reasons.”
prosecution first wants the jury to focus on Celeste’s money motive.
Beard’s attorney, David Kuperman, who drew up the family will,
testifies that Celeste stood to inherit millions more dollars in cash
and property if Steven died.
death, the half interest in the homes, the tangible personal property
and the club memberships, and $500,000 would go outright to Celeste,"
Prosecutors say in the spring of 1999, six months before the shooting,
Celeste chose murder over divorce as the best way to cash in on
to the prosecution’s case of manipulation and murder is to prove
Tracey’s claims of a sexual relationship with Celeste.
needed me. And I know that attracted me,” says Tracey.
would gaze at each other lovingly and it wasn’t the kind of affection
that platonic girlfriends would share,” says Brandy Whitten, a
co-worker of Tracey’s who saw the two of them together at a party just
a few months before Steven was shot.
were very affectionate together,” says Whitten. “At one point, Celeste
was sitting on Tracey’s lap and I saw Celeste nuzzle Tracey’s ear.”
says she was in love with Celeste, and that at the time, Tracey
thought Celeste was in love with her. In fact, Celeste once bought a
card that said, “To the one I love.” But she didn’t give it to her
husband, Steven. She gave it to Tracey instead.
love Tracey, as a friend,” says Celeste. “I cared very much for
Tracey, as a friend.”
DeGuerin says it was Tracey who was the manipulator. He claims Tracey
would get Celeste high on alcohol or marijuana brownies, and then try
to seduce her.
“Celeste came onto me as much as I came onto Celeste,” says Tracey.
when Tracey Tarlton takes the stand, DeGuerin has a surprise for her
and the prosecution. DeGuerin had Tracey’s secret diary.
DeGuerin: In fact, you’d kind of forgotten
about the existence of this journal. Right?
Tracey: Until you brought it up, yes.
pages of her journal, Tracey writes of her most private feelings. But
something important is missing.
DeGuerin: Is there a single journal entry in
which you say, “It finally happened. We finally had sex.”
testifies that from the first day they met, Celeste often complained
that Steven was abusive toward her.
saw this woman that I loved in a desperate situation trying to find a
way to survive this man that was so awful,” says Tracey on the stand.
says she wanted to help. She also says Celeste had an idea.
had a plan. She wanted me to shoot him at Toro Canyon with my shot
gun,” says Tracey. “I was willing to shoot him, and I went and did
then said that she walked into Steve’s room, stood at the foot of his
bed, raised her gun “and took aim where I was supposed to take aim and
pulled the trigger. What I was thinking about was Celeste’s
instructions. I was thinking about Celeste.”
Celeste denies ever giving Tracey instructions to kill her husband: “I
don’t know why Tracey shot my husband.”
However, Katina Lofton, who shared a cell with Tracey for two months,
says she knows why.
loved Celeste but Celeste didn’t love her,” says Lofton, who says
Tracey was out to punish Celeste for refusing her sexual advances.
“She just said that Celeste wasn’t going to live happily ever after
while she rotted in jail.”
Although Lofton’s testimony gives Celeste hope, two other witnesses --
her twin daughters -- will leave her in despair.
she would sometimes make comments like, ‘Why doesn’t he just die
already,’ says Celeste’s daughter, Kristina.
According to their mother, Kristina and Jennifer Beard were not out to
defend her -- they were here to destroy her.
said that she married Steve for his money,” says daughter, Jennifer.
kind of hard to keep up because she was always lying about something,”
adds daughter Kristina.
can’t imagine any child getting up on the stand and being able to do
that to their mother,” says Celeste, crying.
“Obviously, I was a horrible mother. I mean, I have to admit that,
because my kids wouldn’t be like they are today, if I wasn’t a bad
mother. But I did the best I knew how.”
several days of detailed testimony, the twins back up many of Tracey
Tarlton’s claims, beginning with Celeste’s true feelings for Steven.
would say that he disgusted her,” says Kristina.
girls also said they had suspicions about Celeste and Tracey’s
friendship. Jennifer said that Celeste would sneak out at night and
head to Tracey’s house after drugging Steve with sleeping pills.
her break apart the sleeping pill and put it in his baked potato,”
would make Celeste’s own children betray her? Celeste says her
daughters are lying about everything, even their claims that they
“They’re the ones that talked behind his back. They hated Steven. They
thought he was old. They thought he was no fun,” says Celeste. “I used
to beg them, ‘Call him dad. He would love for you to call him dad.’
And they refused.”
to admit it, but the only reason why they could have turned on me was
for the money. I mean, I have to face that fact,” adds Celeste.
says that if she’s convicted, the twins would get a share of her
inheritance -- an estimated $2 million each. But if Celeste goes free,
Steven Beard’s will calls for the girls to get significantly less.
have two million reasons to lie,” says Celeste.
Weitzel, lead prosecutor, disagrees. “I do not agree, for a minute,
that they’re motivated by money. I think those girls, the growing up
they had to do with the defendant, is just something that’s almost too
horrible to imagine.”
Court of Appeals of Texas
Johnson v. State
Celeste Beard JOHNSON, Appellant, v. The STATE of Texas, Appellee.
March 23, 2006
Before Chief Justice LAW, Justices PURYEAR and
Dick DeGuerin, Matt Hennessy, Catherine L. Baen,
Deguerin, Dickson & Hennessy, Houston, for appellant.Holly E. Taylor,
Sally Swanson, Allison Wetzel, Asst. Dist. Attys., Austin, for
A jury found appellant Celeste Beard Johnson guilty
of capital murder and injury to an elderly individual. See Tex.
Pen.Code Ann. §§ 19.03(a)(3), 22.04(a)(1) (West Supp.2005). The
State did not seek the death penalty for the capital murder, and the
district court sentenced appellant to life imprisonment. The jury
assessed life imprisonment and a $10,000 fine for the injury to an
Appellant contends that the evidence is legally and
factually insufficient to sustain the guilty verdicts, and that the
two convictions constitute double jeopardy. She also asserts that
the trial court erred by: (1) overruling her motions to quash the
original indictment, permitting the State to amend the indictment, and
refusing to quash the amended indictment; (2) admitting irrelevant
evidence; (3) threatening a defense witness and refusing to admit a
prior consistent statement by this witness; (4) limiting her right to
confront the witnesses against her; (5) admitting in evidence a
deposition given by appellant in a civil case; and (6) admitting
summaries of telephone records prepared by the State.1
Finding no reversible error, we affirm the judgments of conviction.
In six points of error, appellant urges that the
State failed to corroborate the testimony of Tracey Tarlton, the
accomplice witness whose testimony is essential to support the
convictions. In four additional points of error relating only to the
capital murder conviction, appellant asserts that the evidence is
legally and factually insufficient to prove the alleged cause of death
and that the murder was committed for remuneration.
Appellant met Steven Beard in 1993 while working as
a waitress at the Austin Country Club, where Beard was a member.
Beard's wife of forty-two years, who was seriously ill when he met
appellant, died in October of that year. Appellant divorced her
third husband, Jimmy Martinez, in April 1994, and Beard and appellant
were married in February 1995. At the time of the marriage,
appellant was thirty-two years old and Beard was seventy. Appellant
had thirteen-year-old twin daughters, Kristina and Jennifer, from a
previous marriage. Kristina was living with appellant in Austin, but
Jennifer lived with her father in Washington. After appellant
married Beard, Jennifer moved to Austin to join her mother and sister,
and the girls were adopted by Beard following the death of their
natural father. Beard was a man of considerable wealth, and the
family lived in an expensive subdivision in a home Beard commissioned
following his marriage to appellant.
In early 1999, appellant entered St. David's
Pavilion, a psychiatric hospital, for treatment of depression.
There, she met Tracey Tarlton, who was another female patient. The
nature of the relationship between appellant and Tarlton was a matter
of dispute at trial. Tarlton, a lesbian, testified that she loved
appellant and believed appellant loved her. The defense, on the
other hand, portrayed Tarlton as delusional and appellant as the
object of Tarlton's obsessive behavior. It was undisputed, however,
that appellant and Tarlton continued to see each other during the
summer and fall of 1999, after they left Timberlawn.
At about 3:00 a.m. on October 2, 1999, Tarlton
entered Beard's bedroom and shot him in the abdomen with a shotgun
while he slept. The sound and pain woke Beard, who summoned
emergency help. The first responders found Beard lying in bed
holding his side. Appellant and Kristina were in another bedroom of
the house at the time of the shooting.
Beard was taken to a hospital where he remained in
intensive care for several weeks. As his condition gradually
improved, he was moved to a regular hospital room and then to a
rehabilitation center. Beard was discharged and sent home with
appellant on January 18, 2000. The following day, appellant called
Beard's doctor and demanded that he be readmitted to the hospital.
After examining Beard, the doctor ordered him readmitted. Beard's
condition deteriorated at the hospital, and he died on January 22,
Tarlton was arrested on October 8, 1999, and
charged with injury to an elderly individual. The charge was
increased to capital murder after Beard died. Tarlton ultimately
pleaded guilty to murder and agreed to cooperate with the State in
exchange for a twenty-year sentence. She testified for the State at
appellant's trial. The jury charge authorized appellant's
convictions solely as a party to Tarlton's conduct. See Tex.
Pen.Code Ann. § 7.02(a)(2) (West 2003).
Tarlton testified that she entered St. David's
Pavilion in February 1999 for treatment of a bipolar disorder. She
met appellant in the hospital and they became friends. Appellant
told Tarlton that she had married Beard in order to secure the custody
of her two daughters, but that she now felt trapped in a loveless
relationship. Tarlton testified, “[H]er portrayal of what was going
on was that she felt trapped by this man who was slowly killing her,
slowly or quickly killing her, that she couldn't get out from under
him psychologically or emotionally.” Tarlton said she believed
everything appellant told her about Beard. She said, “I just felt
like he was this man who had a whole bunch of money and he pushed his
way through all this staff of people and he pushed his wife around and
he, you know, grabbed here and grabbed there and didn't have any
concern at all for anybody else, including her.”
Tarlton described appellant as flirtatious, and she
said that they developed a romantic relationship while at St. David's.
The two women arranged to be transferred to Timberlawn Hospital in
Dallas, where they initially shared a room and where Tarlton said they
first became sexually intimate. After a staff member saw Tarlton
giving appellant a massage, Tarlton was moved to a separate room.
Appellant told Tarlton that Beard was responsible for their
separation. Later, while outpatients at Timberlawn, appellant and
Tarlton met in motel rooms and their relationship became more intense.
After appellant and Tarlton returned to Austin, they continued to
see each other regularly during the summer and fall of 1999.
Tarlton testified that appellant spent the night at
Tarlton's house several times a week. Appellant told Tarlton that
she put sleeping pills in Beard's food and replaced his vodka with
Everclear, a product that is almost pure grain alcohol. In this way,
she caused Beard to pass out, leaving her free to spend nights away
from the house. Appellant also expressed the hope that this regimen
would hasten Beard's death. She told Tarlton, “[H]e's an old man,
he's going to die soon but not soon enough, and I'm just going to help
him along wherever I can.” Tarlton recounted a night in the fall of
1999 when she received a telephone call from appellant asking her to
come to appellant's house. When Tarlton got there, she saw Beard
unconscious at the dining room table. Tarlton helped appellant move
Beard to the floor, then appellant placed a plastic trash bag over his
head in an unsuccessful attempt to asphyxiate him. Appellant also
attempted without success to poison Beard with botulin that she and
Tarlton grew with instructions they found in a book of poison recipes.
Tarlton explained that she was willing to help appellant in these
schemes because “I did believe everything she told me about what was
going on. And I just felt real bad for her, and ․ from what I knew,
he was a terrible man and he wouldn't let her up.”
Beard made plans to spend three weeks in Europe
with appellant in October 1999. Appellant told Tarlton that she
dreaded the trip and feared that Beard's emotional abuse would cause
her to kill herself while on the trip. In late September, only a few
days before the trip was to begin, appellant asked Tarlton to shoot
Beard. Appellant knew that Tarlton had once hunted and continued to
shoot skeet, and that she owned a shotgun. Tarlton said that she
initially refused appellant's request, but she changed her mind when
appellant threatened to commit suicide. Tarlton testified that she
asked appellant to take care of three things if she were arrested:
find homes for her pets, pay her legal fees, and support her in jail.
Appellant promised to do so.
Tarlton testified that she met appellant at the
Beard residence on the afternoon of Friday, October 1, to plan the
shooting. Appellant told Tarlton that she had arranged for Jennifer
to be away from the house that night, but that appellant and Kristina
would be at home and in another bedroom. Appellant showed Tarlton
where to park, how to enter the house, and where Beard would be
sleeping. When Tarlton mentioned that her shotgun would
automatically eject the spent shell, appellant promised that she would
find the shell and dispose of it. Appellant suggested that Tarlton
shoot Beard in the stomach, as that would be less messy. She said
that if Beard did not die immediately, she would wait for him to bleed
to death before calling the police. Later that night, appellant came
to Tarlton's residence and told Tarlton to park in a different
location in order to avoid being seen by neighbors. She told Tarlton
that Beard was already in bed asleep, and assured her that the house
would be unlocked and the security system would be off.
Tarlton drove to the Beard residence shortly after
2:00 a.m. that night. She found the gate open as planned. She
parked near the girls' bedroom and entered the house through an
unlocked door near Beard's bedroom. She then walked into the
bedroom, shot Beard in the stomach, returned to her car, and drove
away. Tarlton did not dispose of the shotgun because it was
personalized and she was confident that appellant would collect the
spent shell as she had promised. In fact, the spent shell was found
by the police soon after they arrived at the house. Without knowing
this, Tarlton gave the shotgun to the police when they came to her
house to question her. Tarlton was arrested a few days after the
shooting and released on bail.
Tarlton said that she and appellant remained in
contact during the weeks following the shooting. In addition to
telephone calls, they often met in a park that was convenient to both
the hospital and Tarlton's workplace. Shortly before Beard's
discharge, appellant told Tarlton that she was not going to hire home
health care workers because she intended to reinfect Beard's wound.
After Beard died, most contact between Tarlton and appellant ended.
Tarlton called appellant in June 2000 after not hearing from her for
three weeks. Appellant told Tarlton that she did not want to talk to
her. In July, Tarlton learned that appellant had remarried.
Tarlton was an accomplice witness. A conviction
cannot be had upon the testimony of an accomplice unless the testimony
is corroborated by other evidence tending to connect the
with the offense. Tex.Code Crim. Proc. Ann. art. 38.14 (West 1995).
Corroboration is not sufficient if it merely shows the commission of
the offense. Id. It is not necessary that the corroborating evidence
directly connect the defendant to the crime or be sufficient in itself
to establish the defendant's guilt. Cathey v. State, 992 S.W.2d 460,
462 (Tex.Crim.App.1999). Article 38.14 is satisfied if the combined
weight of the nonaccomplice evidence tends to connect the defendant to
the offense. Id.
Several witnesses, including appellant's daughters
Kristina and Jennifer, testified that appellant made no secret of her
dislike for Beard. Although appellant was pleasant to Beard in
person, she called him various derogatory names behind his back and
often expressed her wish that he were dead. Appellant's daughters
and their friends saw appellant substitute Everclear for vodka in
Beard's drinks and mix sleeping pills into his food. They also
described how appellant would give Beard sleeping pills instead of his
other medications. Appellant was openly dreading the October trip to
Europe with Beard. She told the receptionist at her beauty salon,
“She hated the bastard. She wished he was dead. She didn't know
how she would last on a vacation.”
Most of Beard's assets, which at one time totaled
over seven million dollars, were held in a revocable trust. At the
time of their marriage, appellant and Beard signed a marital agreement
by which Beard promised to give appellant one million dollars during
the marriage. If the marriage ended in divorce, appellant would
receive $500,000. In January 1997, Beard transferred $500,000 from
his trust to a revocable trust created for appellant. This payment
constituted one-half of the promised marital payment and also
satisfied Beard's obligation to appellant should they divorce. The
trustee testified that appellant's trust was depleted within six
months of its creation. During October 1999 through January 2000,
the four months following the shooting, appellant ran up expenses of
more than $700,000 which were presented to the trustee of Beard's
trust for payment. Under the terms of Beard's will, appellant
inherited the residence and lake house and one-half of Beard's other
Appellant's daughters were aware of her
relationship with Tarlton. Kristina had a key to Tarlton's house and
sometimes went there to wake up appellant when she spent the night.
Employees of the book store managed by Tarlton also knew about the
relationship. They testified that appellant often visited Tarlton at
the store and described seeing them together at social functions. In
July 1999, appellant hosted a party for the store's employees at the
Beard lake house. Appellant was photographed at the party sitting in Tarlton's lap, and other party-goers testified to seeing appellant and
Tarlton kissing and holding hands. On the morning after the party,
Kristina and her boyfriend, Justin Grimm, went to the lake house to
clean up and found appellant and Tarlton together in bed.
Throughout 1999, appellant was also having an
affair with her former husband, Jimmy Martinez. Kristina testified
that she occasionally drove appellant to Martinez's house to spend the
night, and that appellant instructed her on these occasions to tell
Beard that she had slept in Kristina's room. In August 1999,
appellant held a high school graduation party for the twins at
Jennifer testified that on October 1, 1999,
appellant suggested that she and her boyfriend, Christopher Doose, and
another friend should spend the weekend at the lake house. This was
the first time appellant had allowed Jennifer to use the lake house
without first asking permission. The teenagers naturally accepted
the offer. They testified that between 9:00 and 10:00 that night,
appellant came to the lake house with Beard's dog, Megan. They were
surprised to see Megan with appellant, as the dog was old and infirm
and always slept with Beard. Appellant told them that Beard was
drunk and had been hitting Megan. This, too, was unusual, because
Beard was very fond of the dog and had never been known to mistreat
her. They agreed to keep Megan with them at the lake house that
night. Appellant, who seemed nervous and distracted, left the lake
house sometime after 10:30 p.m.
That same night, Kristina and Grimm went to dinner
and a movie. Although Kristina did not ordinarily have a curfew,
appellant had instructed her to be home by midnight. They arrived at
the Beard house at about 11:00 p.m. Grimm often spent the night at
the Beard house with appellant's knowledge and permission, but
appellant had told him earlier that he could not stay that night. He
left around midnight. Kristina testified that appellant was not at
home when her boyfriend left and she went to bed. Kristina said that
she awoke later that night and saw appellant standing in the doorway
of her bedroom. Appellant told her that someone was at the front
door and asked her to investigate. Kristina went to the front of the
house and looked outside. She saw the lights of the emergency
vehicles that had responded to Beard's call for help following the
The first responders found the gates to the
property open and did not encounter any armed security devices. The
doors of the house appeared to be unlocked. The first police officer
to enter the house came in through a side entrance and found Beard.
Then he walked to the front of the house to admit other emergency
workers and encountered appellant and Kristina. When she was told
that there was a medical emergency, appellant became hysterical. But
the hysterics were “up and down.” One officer remembered that
appellant “would go from being very upset to not very upset and it
seemed at times she was crying but there weren't any tears or anything
Appellant and Kristina followed Beard to the
hospital, where they were joined by Jennifer and Doose who drove in
from the lake house. Officer Paul Knight spoke to the young people
at the hospital and asked them if they knew who might have shot Beard.
They immediately gave him Tarlton's name. Later that day,
appellant, who did not know that they had already done so, instructed
Kristina, Jennifer, and their boyfriends not to mention Tarlton to the
police. Kristina testified that appellant also told her not to speak
to the police, but only to appellant's attorney, and to tell the
lawyer that appellant loved Beard and would never hurt him. After
Beard died, appellant told her daughters and their boyfriends that
Beard's dying wish was that they not cooperate with the police
Acting on the tip from appellant's daughters,
Knight and Officer Rick Wines interviewed Tarlton at her house on the
afternoon of October 2. Tarlton gave the officers an exculpatory
statement and allowed them to take her shotgun. Tarlton was arrested
on October 8 after ballistics tests showed that the shell found in
Beard's bedroom had been fired by her shotgun. While searching
Tarlton's house, the officers found photographs of Tarlton with
appellant and calendar entries describing some of their activities.
Appellant said nothing to the police when she was told that Tarlton
had been arrested.
On October 4, Knight and Wines went to the hospital
to speak to Beard. Appellant met them there and told them that Beard
did not wish to see them. She also revoked the consent she had
previously given to search the Beard house. The following day, the
officers found a sign posted outside Beard's hospital door saying, “No
visitors including police.” The sign also stated that no visitors
were allowed except when appellant was present. After learning that
a family friend had tried to visit Beard in the hospital, appellant
telephoned him and angrily said that he “was not allowed to come back
and visit Steve ever again.”
Summaries of cell phone billing records introduced
by the State document hundreds of calls between phones commonly, but
not exclusively, used by appellant and phones used by Tarlton.
Between August 29 and October 1, 1999, ninety-eight calls totaling 336
minutes were made between these phones, including eight calls totaling
fifteen minutes on the day of the shooting. The calls continued
following the shooting. Ninety-four calls totaling 389 minutes were
made between these phones from October 2, 1999, through January 26,
2000. When asked by her daughters why she was talking to Tarlton,
appellant denied doing so.
In January 2000, Jennifer and Kristina had all the
Beard telephone numbers changed in an effort to stop Tarlton's calls.
On the day Beard died, however, Grimm found an unfamiliar cell phone
in appellant's car. The evidence shows that this so-called “secret”
cell phone belonged to Tarlton. The phone records show that
approximately fifty calls were made between this phone and another
cell phone belonging to Tarlton from January 8 to January 26, 2000.
Another thirty-five calls were made between these phones from January
27 to June 15, 2000. Although the “secret” phone belonged to
Tarlton, there was testimony that it was regularly seen at the Beard
house and in appellant's possession.
Appellant, Kristina, Jennifer, Grimm, and Doose
rode together in a limousine on the day of Beard's funeral.
Appellant laughed and joked on the way to the funeral home, but her
demeanor changed upon their arrival and she began to weep. After the
funeral, appellant was again in a good mood. She had the limousine
stop in a shopping center owned by Beard, entered one of the stores,
and told the employees that she was now the owner and “they could kiss
her ass like they kissed Steve's ass.”
Soon after Beard's death, appellant hired Donna
Goodson to be her personal assistant. Goodson testified that
appellant “slept all day and partied all night.” Goodson accompanied
appellant on her frequent visits to Austin night spots and said that
appellant became involved with several men, including a bartender
named Cole Johnson who appellant later married. On February 10,
2000, Goodson went to the Houston rodeo with appellant. Appellant
arranged dates for herself and Goodson while in Houston.
From Houston, appellant and Goodson continued on to
Lake Charles, Louisiana, to visit a casino. During the Lake Charles
trip, appellant told Goodson that her attorney had said “it would take
two pieces of evidence to indict somebody for murder, one would be the
gun and the other would be Tracey [Tarlton].” Goodson remarked that
Tarlton might be cooperating with the police. Appellant asked
Goodson if she knew anyone who could “get rid of Tracey.” Goodson
told appellant “anybody could get rid of anybody for the right
amount.” Upon their return to Austin, appellant gave Goodson $500 to
hire a hit man to kill Tarlton. She also showed Goodson Tarlton's
house and automobile. As time passed and Tarlton was not killed,
appellant began to pressure Goodson. Goodson said she counseled
patience and asked appellant for more money. Appellant made
additional payments to Goodson of $2500, $2500, and $7460. Appellant
tried without success to hide these payments. When Kristina asked
appellant about the money she was giving Goodson, appellant became
irate and threatened to “physically kill” her. Eventually, appellant
told Kristina that she had hired a hit man to kill Tarlton but had
“called it off.”
We find the combined weight of the nonaccomplice
evidence to be more than sufficient to connect appellant to the
offense and thus to corroborate Tarlton's accomplice testimony. The
evidence shows that appellant was unhappy in her marriage and often
expressed the wish that Beard would die. In fact, appellant was
shown to have regularly tampered with Beard's food and drink in a
manner that was dangerous to his health. Appellant began spending
lavishly even before Beard died, and she was noticeably elated
following his death. While evidence of motive is alone insufficient to
corroborate an accomplice, it is a circumstance that may be considered
together with other corroborative evidence. Leal v. State, 782 S.W.2d
844, 852 (Tex.Crim.App.1989); and see Duff-Smith v. State, 685 S.W.2d
26, 33 (Tex.Crim.App.1985) (defendant's “extreme haste to enjoy the
fruits of [deceased's] estate” considered corroborative of accomplice
Appellant had been intimately involved with Tarlton
for over six months before Tarlton shot Beard. During the summer and
early fall of 1999, appellant regularly spent the night at Tarlton's
house, gave a party on her behalf, and often spoke to her on the
telephone. In fact, appellant spoke to Tarlton several times on the
day of the shooting. While this contact with the accomplice may not,
in itself, be sufficient to corroborate Tarlton's testimony, it is
corroborative when considered in light of the other evidence. See
Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-Austin 2001, pet.
Appellant's atypical behavior on the day of the
shooting tends to connect her to the offense. She encouraged one of
her daughters to spend the night of the shooting at the Beard lake
house, and she took the dog that always slept with Beard to the lake
house that night. After the shooting, appellant secretly remained in
contact with Tarlton and attempted to keep Tarlton's name out of the
investigation. Indeed, appellant was generally uncooperative with
the police and encouraged her daughters and their friends to be the
same. When it was suggested to appellant that Tarlton might
cooperate with the police, appellant spent over $12,000 in an attempt
to hire someone to kill Tarlton. Appellant's efforts to impede the
investigation of Beard's shooting, and her attempts to first protect
Tarlton and then to kill her, also tend to connect appellant to the
Finding the evidence sufficient to corroborate the
accomplice witness testimony, we overrule points of error four through
nine. We now turn to appellant's further contention that even when
Tarlton's accomplice testimony is considered, the evidence is legally
and factually insufficient to sustain the capital murder conviction.
Appellant specifically contends that the evidence does not support the
jury's verdict with regard to the cause of death and the remuneration
Cause of death
Appellant contends that the evidence is legally and
factually insufficient to prove that Beard was murdered “by shooting
him with a firearm” as alleged in the indictment. She argues that
Beard's death was the result of an infection unrelated to the
Beard was originally taken to Brackenridge
Hospital, where he was treated by Dr. Robert Coscia, a general surgeon
and the hospital's director of trauma care. Coscia testified that
Beard had a hole the size of an orange in his upper right abdomen and
that bird shot had damaged several internal organs. Beard's colon
was seriously damaged and posed an infection risk. Coscia removed a
large portion of Beard's colon and created an ileostomy. Skin grafts
were required to close the wound.
Beard remained in the hospital until December 7,
1999. By that time, his condition had improved enough for him to be
transferred to the HealthSouth rehabilitation center. There, he
received physical therapy preparatory to going home. Beard was
released from HealthSouth on January 18, 2000. Beard was at this
time confined to a wheelchair and experienced considerable pain
whenever he was moved to a regular chair or bed. The ileostomy was
still in place, and the gunshot wound itself required daily cleaning
and observation. There is evidence that Beard had a rash in his
groin area at the time of his discharge from HealthSouth.
On January 19, appellant called Dr. Coscia to
complain about the quality of care Beard had received at HealthSouth.
At her request, Coscia examined Beard in the Brackenridge emergency
room. Coscia testified that Beard “did not look that bad,” but he
decided to admit him to the hospital for treatment of “a significant
yeast infection in his perineum” or groin area. Beard was also
reporting chest pain and his white blood cell levels were elevated.
At about 8:00 a.m. on January 22, Beard's chest
pain worsened, his pulse rate went up, his blood pressure fell, his
temperature spiked to over 102 degrees, and he became delirious. A
blood test was positive for cocci, which indicated that Beard had a
staphylococcal or streptococcal infection. An antibiotic was ordered
but was not administered until 1:00 p.m. Beard died later that
afternoon. The attending physician, who was not Dr. Coscia, recorded
the cause of death as septic shock.
Dr. Roberto Bayardo, the Travis County Medical
Examiner, performed the autopsy on Beard's body. Bayardo testified
that the immediate cause of death was pulmonary emboli. Bayardo was
of the opinion that these emboli, or blood clots, had formed in
Beard's legs as a result of the months of inactivity following the
shooting. The emboli traveled to the lungs and lodged in the
pulmonary arteries, blocking the flow of blood and preventing the
oxygenation process. Bayardo identified photographs taken during the
autopsy as showing large clots in Beard's pulmonary arteries.
Bayardo testified that Beard also had bronchopneumonia and sepsis
resulting from an infection that began in the lungs. Bayardo's
autopsy report stated that the cause of Beard's death was pulmonary
embolism and bronchopneumonia with sepsis, as a complication of the
shotgun wound. Dr. Coscia testified that he agreed with Dr.
Bayardo's conclusion regarding the cause of death.
Dr. Terry Satterwhite, an infectious disease expert
called by the defense, testified that he had examined Beard's medical
records from the time of the shooting. Satterwhite noted that blood
tests taken on the morning of January 22 indicated that Beard had a
group A streptococcal infection. Such bloodstream infections are
very serious and often fatal. Beard also had numerous risk factors
that increased the seriousness of the infection: he was obese,
alcoholic, diabetic, and suffered from chronic obstructive pulmonary
disease. Satterwhite opined that Beard died from septic shock
resulting from the strep infection. Satterwhite believed that the
strep entered Beard's body through the groin infection, and that
Beard's death was not related to the shotgun wound.
Dr. Charles Petty, a forensic pathologist, also
testified for the defense. Petty had examined Beard's medical
records and the autopsy report prepared by Dr. Bayardo. He testified
that the shotgun wound “was doing quite well, and there was no reason
to suspect that he would die of that at all.” Petty agreed with
Satterwhite that Beard's death was caused by septic shock resulting
from the streptococcal infection. Because he found no indication
that the shotgun wounds were infected, Petty also believed that the
infection began in the groin area and was unrelated to the wounds
Beard suffered on October 2.
When there is a challenge to the sufficiency of the
evidence to sustain a criminal conviction, the question presented is
whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59
(Tex.Crim.App.1981) (legal sufficiency); Zuniga v. State, 144 S.W.3d
477, 484 (Tex.Crim.App.2004) (factual sufficiency). In a legal
sufficiency review, all the evidence is reviewed in the light most
favorable to the verdict, and it is assumed that the trier of fact
resolved conflicts in the testimony, weighed the evidence, and drew
reasonable inferences in a manner that supports the verdict. Griffin,
614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781).
In a factual sufficiency review, all the evidence is considered
equally, including the testimony of defense witnesses and the
existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319,
321 (Tex.App.-Austin 1992, no pet.). Although due deference still
must be accorded the fact finder's determinations, particularly those
concerning the weight and credibility of the evidence, the reviewing
court may disagree with the result in order to prevent a manifest
injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000).
The evidence will be deemed factually insufficient to sustain the
conviction if the proof of guilt is too weak or the contrary evidence
is too strong to support a finding of guilt beyond a reasonable doubt.
Zuniga, 144 S.W.3d at 484-85; see Johnson, 23 S.W.3d at 11.
It was for the jury, as trier of fact, to resolve
the conflicting expert opinions regarding the cause of Beard's death.
Viewing the evidence in the light most favorable to the jury's
verdict, and thus assuming that the jury believed the State's experts
and discounted the testimony of the defense experts, the evidence is
clearly sufficient to support a finding beyond a reasonable doubt that
Beard died as a result of the shotgun wound inflicted by Tarlton on
October 2. Even when all the evidence is considered equally,
including the testimony of the defense experts, we still must give due
deference to the jury's credibility determinations. The State's
evidence is not so weak or the defensive evidence so strong as to
preclude the jury from finding beyond a reasonable doubt that Beard
died as a result of the shotgun injury. Points of error ten and
eleven are overruled.
The indictment alleged that Beard was murdered “for
remuneration and the promise of remuneration, namely, money and the
estate of Steven Beard and the assets of a trust created by Steven
Beard.” See Tex. Pen.Code Ann. § 19.03(a)(3). Appellant argues
that the State failed to prove this allegation because during Beard's
life, she enjoyed financial benefits equal to or greater than the
benefits to which she was entitled following his death. Appellant
points to evidence that despite Beard's consternation at her lavish
spending, he imposed no effective limit on it. Upon Beard's death,
however, his assets passed into a trust for appellant's benefit and
thus subjected appellant's spending to the supervision of a trustee
who was less generous than Beard. Appellant asserts that “[a]t a
minimum, remuneration implies an increase rather than a decrease in
We are not persuaded by this argument. The term
“remuneration” as used in section 19.03(a)(3) “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 v.
State, 767 S.W.2d 711, 734 (Tex.Crim.App.1988) (op. on reh'g). The
conduct proscribed by section 19.03(a)(3) includes the killing of
another person in order to receive, or for the purpose of receiving,
some benefit or compensation. Id. (quoting McManus v. State, 591
S.W.2d 505, 513 (Tex.Crim.App.1979)). The focus is on the actor's
intent or state of mind: did she kill in the expectation of receiving
some financial benefit or compensation? Id. at 735. Thus, if
appellant participated in Beard's murder for the purpose of receiving
his money and other assets, she acted for remuneration even if she did
not receive the expected financial benefit.
The evidence shows that appellant was familiar with
the terms of Beard's will, under which she received the primary
residence, the lake house, and one-half of Beard's other assets, which
were worth several million dollars. But so long as he lived, Beard
was free to change his will to leave appellant only the additional
$500,000 to which she was entitled under the marital agreement, or to
give appellant the remaining $500,000 during his lifetime and bequeath
her nothing. Moreover, appellant had already received and spent the
$500,000 to which she was entitled upon divorce under the terms of the
marital agreement, and thus she could have been left with nothing had
Beard divorced her. Although appellant told Tarlton that she had not
married Beard for his money, she once told Tarlton that she did not
divorce Beard “because she would only get $500,000.” Viewing the
evidence in the light most favorable to the verdict, a rational trier
of fact could find beyond a reasonable doubt that appellant solicited,
encouraged, and aided Tarlton to kill Beard in order to secure Beard's
assets and estate under the existing will. See Tex. Pen.Code Ann.
§ 7.02(a)(2). Even when all the evidence is viewed in a neutral
light, including the restrictions that were imposed on appellant's
access to Beard's estate, the jury was justified in finding beyond a
reasonable doubt that appellant acted for the purpose of receiving the
In a prosecution in which an actor's criminal
responsibility is based on the conduct of another, the actor may be
convicted on proof of commission of the offense and that she was a
party to its commission. Tex. Pen.Code Ann. § 7.03 (West 2003).
Thus, the question arises whether, in order to convict appellant as a
party to capital murder for remuneration, it was necessary for the
State to prove at appellant's trial that Tarlton, the primary actor,
killed Beard for remuneration. See Ex parte Thompson, 179 S.W.3d
549, 555-57 (Tex.Crim.App.2005) (construing penal code sections
7.02(a)(2) and 7.03). Assuming that such proof was necessary, we
find that the evidence is legally and factually sufficient to supply
it. Tarlton knew that Beard was a wealthy man, and the jury could
reasonably infer that she knew that appellant was the primary
beneficiary under Beard's will. Tarlton also testified that she and
appellant would sometimes discuss their future lives together: “We
went back and forth about it. But she had an idea that we would go
and live at the lake house.” From this, the jury could reasonably
infer that Tarlton, as appellant's lover, anticipated that she would
indirectly share the money and assets that would flow to appellant
under the terms of Beard's will. Applying the relevant standards of
review, we find that the evidence is legally and factually sufficient
to support a finding beyond a reasonable doubt that Tarlton murdered
Beard for remuneration.
Points of error twelve and thirteen are overruled.
Appellant contends that the trial court erred by
overruling her motions to quash the original indictment, permitting
the State to amend the indictment, and refusing to quash the amended
indictment. Appellant argues that the indictment, both as filed and
as amended, did not provide adequate notice of the accusation against
her. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10;
Tex.Code Crim. Proc. Ann. art. 21.11 (West 1989). She further
argues that by permitting the State to amend the indictment, the court
violated her constitutional and statutory right to have all material
accusations presented to a grand jury. See U.S. Const. amends. V,
XIV; Tex. Const. art. I, § 10; Tex.Code Crim. Proc. Ann. art. 1.05
As filed in March 2002, count one of the indictment
alleged without elaboration that appellant murdered Beard “for
remuneration.” In October 2002, appellant moved to quash the
indictment because “[n]either the remuneration nor the remunerator is
identified” and because it did not “identify what remuneration
Defendant was supposed to have received from the unnamed
In a letter to the parties dated November 27, 2002, the trial court
stated that “the court is going to require the state to plead facts,
acts or conduct that constitute solicitation and remuneration.” The
letter went on to state that the court would sign an order quashing
the indictment on December 20. On December 19, the State moved to
amend the indictment to allege that appellant murdered Beard “for
remuneration and the promise of remuneration, namely, money and the
estate of Steven Beard and the assets of a trust created by Steven
Beard.” Following a hearing on January 6, 2003, the court granted
the motion to amend over appellant's objection, and conforming
alterations were made to the face of the filed indictment.
Contrary to the allegation made in point of error
one, the trial court did not overrule appellant's motions to quash the
original indictment. To the contrary, it is clear from the record
that the court would have quashed the indictment had the State not
amended it. Because the indictment was amended, any question regarding
the adequacy of the original indictment is moot. Point of error one
Appellant argues that the amended indictment
remained defective because it did not name the person providing the
remuneration or the person receiving the remuneration:
The amendment did not clarify whether “money” was
to be paid by or to Appellant. If money was to be paid to Appellant,
the amendment did not clarify who the payer was. If money was to be
paid by Appellant, it did not clarify who was to receive it.
Moreover, amending to allege that “remuneration” included “the estate
of Steven Beard and the assets of a trust created by Steven Beard” was
entirely uninformative. That addition did not clarify who was
supposed to get the estate and the assets of a trust as remuneration,
or who would provide it.
Appellant cites Janecka v. State, a capital murder
case in which the indictment alleged that the defendant “committed the
murder for remuneration and the promise of remuneration, namely,
money.” 739 S.W.2d 813, 816 (Tex.Crim.App.1987). The court of
criminal appeals held that the indictment did not give the defendant
adequate notice because it did not allege the name of the person
providing the remuneration. Id. at 820.3
Janecka was a murder for hire case. See id. at
835 (Teague, J., dissenting and summarizing underlying facts). It is
reasonable in such a case to require the State to identify the alleged
payor and payee in the indictment. But the cause now before us is
not a murder for hire case. Instead, appellant was accused of murder
for remuneration in its broader sense: the killing of another person
in order to receive, or for the purpose of receiving, some benefit or
compensation. Beets, 767 S.W.2d at 734. In such a case, the
existence of a “culpable promisor” is not required to establish
remuneration. Id. at 735. It follows that the amended indictment
was not objectionable for failing to name the person who was to pay
the alleged remuneration. At the same time, it is obvious from
reading the amended indictment that appellant was the person to whom
the alleged remuneration was to be paid. The trial court did not err
by refusing to quash the amended indictment. Point of error three is
We also find no merit in appellant's complaint that
the amendment of the indictment denied her the constitutional right to
a grand jury indictment. The Fifth Amendment indictment clause does
not apply to the states. Hurtado v. California, 110 U.S. 516, 520 &
538, 4 S.Ct. 111, 28 L.Ed. 232 (1884). The inferential requirements
of article I, section 10 of the Texas Constitution were abolished by
the adoption of article V, section 12(b), which provides that the
practice and procedures relating to indictments, including amendment,
“are as provided by law.” Studer v. State, 799 S.W.2d 263, 272
(Tex.Crim.App.1990). The requisites of an indictment now stem from
statutory law alone. Id.
In general, an indictment may be amended as to form
or substance at any time before the date the trial on the merits
commences. Tex.Code Crim. Proc. Ann. art. 28.10(a) (West 1989). An
indictment may not be amended over the defendant's objection, however,
if the amended indictment would allege an additional or different
offense or if the substantial rights of the defendant would be
prejudiced. Id. art. 28.10(c). The State did not amend the
indictment to allege a new or different offense. Both as filed and
as amended, the indictment alleged the offense of capital murder for
remuneration. See Flowers v. State, 815 S.W.2d 724, 728
(Tex.Crim.App.1991) (construing article 28.10(c)). Nor did the
amendment prejudice any substantial right. To the contrary, the
amendment served to satisfy appellant's motion to quash demanding
greater notice regarding the remuneration element. Point of error
two is overruled.
Appellant urges that the trial court erred by
admitting evidence she deems to be irrelevant, unfairly prejudicial,
and/or improper character-conformity evidence. Evidence is relevant
if it has any tendency to make the existence of a fact that is of
consequence to the determination of the action more or less probable
than it would be without the evidence. Tex.R. Evid. 401. Although
relevant evidence is generally admissible, it may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice. Tex.R. Evid. 402, 403. Evidence of other crimes, wrongs,
or acts is not admissible if it is relevant only to prove the
character of a person in order to show action in conformity therewith,
but it may be admissible for some other purpose. Tex.R. Evid. 404(b).
We review the trial court's decision to admit evidence for an abuse
of discretion. Montgomery v. State, 810 S.W.2d 372, 390
(Tex.Crim.App.1991) (op. on reh'g).
Beard divorce petition
The State was permitted to offer evidence that
Beard filed for divorce less than a year after marrying appellant,
only to withdraw the petition two months later. Contrary to
appellant's argument, this evidence was relevant to the question of
motive. Under the terms of the marital agreement, appellant would
have received upon divorce a relatively small settlement compared to
what she was to receive under Beard's will. Evidence that Beard had
once filed for divorce tended to show that appellant had a reason to
fear that Beard might divorce her in the future and thus to hasten his
death before he could do so. In her brief, appellant makes no effort
to explain how this evidence had the potential to impress the jury in
some irrational way so as to render it more prejudicial than
probative. See id. at 390. No abuse of discretion is shown.
Point of error fourteen is overruled.
Appellant contends that the trial court erred by
permitting the State to cross-examine Martinez regarding the details
of his divorce from appellant. She also complains of the admission
in evidence of the petition and decree from that divorce.
The record reflects that the petition and decree
were offered by the State, but appellant's objection was sustained and
they were not admitted. We also find nothing in the record to
support her claim that the State was permitted to question Martinez
about “the specific factual basis for the divorce.” Finding no
support for the contentions made, we overrule point of error nineteen.
Amy Cozart, a friend of appellant's daughters,
testified that appellant told her that she was having an affair with
Martinez, and that she did not want Beard to know about the affair
because he might seek a divorce. Appellant was also fearful that her
infidelity, if known, would effect her rights under the marital
agreement. Cozart testified that appellant asked her to “lie for
her” if Beard were to find out about the affair.
This evidence was also relevant to motive.
Although her infidelity and her efforts to hide it cast appellant in a
bad light, it was within the scope of the trial court's discretion to
determine that the probative value of this evidence was not
substantially outweighed by the danger of unfair prejudice. We also
note that Martinez, called as a defense witness, testified to the
affair with appellant. Points of error fifteen and sixteen are
State's exhibit 153A is a copy of an anonymous
letter dated October 27, 1999, and addressed to Laylan Copelin, a
newspaper reporter who was involved in the coverage of the Beard
shooting. The letter purports to be written by a friend of
appellant. It describes appellant as “one of the most giving people
in the world” and her marriage to Beard as a “caring relationship with
a husband that absolutely adores her.” The letter contains an
account of appellant's “difficult and traumatic life,” including
sexual abuse by her father, physical abuse by her first husband, and a
number of diseases including ovarian cancer. The letter says that
appellant befriended Tarlton because she had suffered “similar trauma
issues,” and that she had made it clear to Tarlton that “their
friendship was nothing more than that.” The letter laments that
“[b]y the time we all started to see the signs of Tracey being
obsessed with Celeste it was obviously too late.” The letter
concludes by saying that appellant “trusted someone who is crazy” and
“feels tremendous guilt over the entire situation even though Steven
has told her not to give it another thought.” The letter pleads with Copelin to treat appellant fairly in his stories.
Kristina's boyfriend testified that he found the
letter in a file saved on the Beard family computer. In his own
testimony, Copelin confirmed receiving the letter. In addition to
asserting that the exhibit was inadmissible under rules 403 and
404(b), appellant urges that the letter was hearsay and not properly
authenticated. See Tex.R. Evid. 802, 901.
The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what
its proponent claims. Tex.R. Evid. 901(a). In addition to being
found on the Beard computer, the letter contained numerous intimate
details of appellant's life, confirmed by other evidence, that
collectively support an inference that she was the author: her
previous marriages, the suicide of her second husband, meeting Tarlton
while both were receiving psychiatric treatment, the upcoming trip to
Europe. Given these circumstances, it was a reasonable exercise of
the trial court's discretion to conclude that the letter was written
by appellant. Id. rule 901(b)(4); see United States v. McMahon, 938
F.2d 1501, 1509 (1st Cir.1991) (applying Fed.R.Evid. 901(b)(4));
United States v. Newton, 891 F.2d 944, 947 (1st Cir.1989) (same).
And because the letter was shown to be written by appellant, it was
not hearsay when offered against her. Tex.R. Evid. 801(e)(2)(A)
(admission by party-opponent).
Defending the admission of the letter pursuant to
rule 404(b), the State urges that the letter was an effort by
appellant to influence newspaper coverage of the shooting and thereby
to indirectly influence the police investigation. Thus, argues the
State, the letter was relevant to show appellant's consciousness of
guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex.App.-Austin
1990, no pet.) (attempts to suppress or fabricate evidence admissible
as indicating consciousness of guilt). The opinions cited by the
State involve evidence that the defendant sought to intimidate a
witness. See Wilson v. State, 7 S.W.3d 136, 140-41
(Tex.Crim.App.1999); Torres, 794 S.W.2d at 598-99. We are not
persuaded that exhibit 153A is comparable evidence. On the other
hand, appellant makes no argument in support of her assertion that the
letter was prejudicial extraneous misconduct evidence. Given the
volume of evidence introduced in this cause, we are satisfied that the
admission of this exhibit, if error, did not harm appellant's
substantial rights. See Tex.R.App. P. 44.2(b). Point of error
seventeen is overruled.
Tarlton testified that appellant commissioned a
painting of herself and her daughters that hung in the Beard
residence. As described by Tarlton, the painting showed the three
women sitting in a garden. In the corner of the garden was “a little
fountain, and in the fountain there was a little tiny medallion that
was the face of Steve Beard.” Appellant told Tarlton “they had it
included in the painting because they didn't want to hurt his
feelings” and “they could just paint over it when he died.”
The trial court overruled appellant's rule 404(b)
objection to this testimony on the ground that it was relevant to show
motive. This ruling was within the scope of the court's discretion.
The court also did not abuse its discretion by concluding that the
probative value of the evidence outweighed the danger of unfair
prejudice. Point of error eighteen is overruled.
Doose and Grimm testified that they, together with
Kristina and Jennifer, were present when appellant had an emotional
breakdown about two weeks after Beard died. They said that appellant
was upset by the rumors that she was involved in Beard's death. She
told them that she wanted to kill herself, but “didn't want to die
alone and she wanted all of us to commit suicide with her.” The
young people tried to calm appellant and change the subject.
The court ruled that this testimony was relevant to
show appellant's consciousness of guilt and that its probative value
outweighed any unfair prejudice. We find the question to be close,
but conclude that the trial court did not abuse its discretion in this
ruling. We also note that the evidence can be viewed as favorable to
the defense, in that it shows appellant as being so distraught by her
husband's recent death and the resulting rumors as to contemplate the
suicide of herself and her daughters. Point of error twenty is
Comment regarding bank
The trust holding the bulk of Beard's assets was
managed by a Dallas bank. About a week after Beard's funeral,
appellant went to Dallas to speak to bank officials. Goodson
testified that upon her return, appellant told her that the bank was
going to put her on a budget and limit her withdrawals from the trust.
According to Goodson, appellant said she told the bankers, “Do you
remember how you used to kiss my husband's ass? Well, you're going
to have to learn to lick my asshole.”
Appellant's reaction to the bank's proposal was
relevant to the question of her motive. Although the remark was
crude, the trial court did not abuse its discretion by concluding that
the probative value of the testimony outweighed any unfair prejudice.
Point of error twenty-one is overruled.
Goodson testified that appellant began dating soon
after Beard's death and saw several men socially, both in Austin and
in Houston. The substance of this testimony was summarized earlier
in this opinion. Appellant complains that the evidence was intended
merely to suggest that appellant was immoral and thus more likely to
The testimony describing appellant's active social
life weeks after Beard's death, like the other evidence of appellant's
good spirits at that time, tended to show appellant's attitude toward
Beard and her motive for being involved in his death. The testimony
tended to connect appellant to the offense and thus corroborated
Tarlton's testimony. The evidence also tended to rebut the defensive
theory that appellant, like Beard, was a victim of Tarlton's obsessive
behavior. The admission of this testimony was not an abuse of
discretion. Point of error twenty-two is overruled.
Goodson testified that during the trip to Houston
for the rodeo, she and appellant were in their hotel room when
appellant made the comment that Goodson had large breasts. Goodson
said that she responded by saying, “Yeah, you know, they're real.”
Goodson continued, “And then she ripped her shirt open and showed me
hers and asked me did I want to feel them, and I said no.”
The State defends the admission of this testimony
by arguing that it rebutted the defensive theory that Tarlton was an
unstable woman who attempted to entice appellant into a lesbian
relationship, who misconstrued appellant's friendship as romantic
love, and who killed Beard in the delusional belief that he was
standing in the way of her relationship with appellant. Evidence
that appellant made a sexual advance toward Goodson, urges the State,
tended to corroborate Tarlton's description of her relationship with
appellant as one of mutual sexual attraction.
While this testimony may have been marginally
relevant, it nevertheless had a strong potential to impress the jury
in an irrational, emotional way. But given the brevity of the
testimony and the volume of other admissible evidence, we are
persuaded that any error in the admission of this testimony over
appellant's rule 403 objection was harmless. See Tex.R.App. P.
44.2(b). Point of error twenty-three is overruled.
Katina Lofton was called as a defense witness to
testify regarding statements Tarlton made to her while both women were
incarcerated in the county jail. Appellant contends that the trial
court violated her due process rights by threatening Lofton with
perjury charges prior to her testimony. She also contends that the
court erred by refusing to admit evidence of Lofton's prior consistent
statement to rebut the State's claim of recent fabrication.
Lofton was scheduled to be the first witness of the
day. Before the jury was seated, the court called Lofton forward and
told her, “I'm pretty concerned because I've read right here what you
told the Defense, right here, everything you told them, and I have
right here what you told the State. I'm pretty angry.” Lofton
indicated that she did not understand the basis for the court's anger.
The court told her, “I'm angry because I'm seeing two different
stories that you've told the State and what you've told the Defense.”
The court told Lofton, “[W]e're not playing games in here,” and
warned her, “I just want to let you know that you do have to tell the
truth and that if you don't tell the truth that you are subject to
being charged with perjury. Okay? Aggravated perjury.” The court
told Lofton that with her record, she could receive twenty years in
prison if she testified untruthfully. The entire colloquy between
the court and Lofton consumes six pages in the record.4
Lofton was briefly removed from the courtroom.
Defense counsel objected, “I think you came down on this witness, you
intimidated the witness․” The court responded, “When I know that
somebody is going to come in here and lie, I need to read them the
riot act and let them know that whatever they've told in the past they
need to get up here and tell the truth, and I'm going to have her
swear on the Bible. Not before the jury.”
After Lofton was returned and sworn, and after the
jury was seated, the court instructed defense counsel to call his next
witness. Counsel called one of the defense medical experts. Out of
the jury's hearing, the court told counsel that “[Lofton] is the first
one on your list, and you are going to call her. She's listed.
Now, call her and sit down and start.” Counsel asked if he was being
ordered to call Lofton, and the court said that he was. Counsel
indicated that he would follow the court's order, but that he was no
longer sure whether he wanted to call Lofton because “the Court has
intimidated this witness.” After counsel made it clear that he would
call Lofton to the stand only if ordered to do so and that he did not
intend to ask her any questions without first talking to her, the
court ordered Lofton returned to jail. The court admonished defense
counsel that he was not to speak to Lofton, adding, “She's not to have
any contact with anybody, we'll just hold on to her, until this matter
is resolved․ She is not to have any contact with anyone until I
give-say she can.” Later that morning, during a bench conference,
the court told counsel for both parties that “Lofton will be available
for either of you to talk to during the lunch hour. I would be
careful, you know, just to make sure that she knows she needs to tell
the truth. That's all I want. I don't care what the truth is.”
Appellant contends that her due process rights were
violated by the trial court's remarks to Lofton. U.S. Const. amends.
V, XIV; Tex. Const. art. I, § 10.5
She relies on the opinion in Webb v. Texas, 409 U.S. 95, 93 S.Ct.
351, 34 L.Ed.2d 330 (1972). In Webb, the trial court, on its own
initiative, admonished the only defense witness, a prison inmate, “If
you take the witness stand and lie under oath, the Court will
personally see that your case goes to the grand jury and you will be
indicted for perjury.” The court added that it was likely that any
punishment the witness received for perjury would be cumulated with
his current sentence. Id. at 96, 93 S.Ct. 351. After this
admonishment, the witness declined to testify. The Supreme Court
held that “the judge's threatening remarks, directed alone at the
single witness for the defense, effectively drove that witness off the
stand, and thus deprived the petitioner of due process of law under
the Fourteenth Amendment.” Id. at 98, 93 S.Ct. 351.
This Court has written that it is not inherently
improper for a trial judge to advise a prospective witness of the
penalties for perjury. Davis v. State, 831 S.W.2d 426, 437
(Tex.App.-Austin 1992, pet. ref'd). On the other hand, warnings
concerning the dangers of perjury cannot be emphasized to the point
where they threaten and intimidate the witness into refusing to
testify. Id. at 438. Although “there is no bright line of
demarcation between proper and improper perjury warnings,” id., the
trial court's admonishments to Lofton arguably crossed that line.
Lofton did not, however, decline to testify after
receiving the court's admonishment. To the contrary, Lofton took the
stand later that day. Lofton testified that during their jail
conversations, Tarlton never told her that appellant had asked her to
shoot Beard. Instead, Tarlton told Lofton that she shot Beard
because he never cared for her. According to Lofton, Tarlton said
that she called the Beard house immediately after the shooting and
asked appellant to retrieve the shotgun shell. Tarlton told Lofton
that appellant “was hysterical and just hung up.” Lofton testified
that Tarlton told her that she had made up the story about appellant
manipulating her and that she was going to lie about appellant in
order to get a twenty-year sentence. Tarlton told Lofton that she
loved appellant but appellant did not love her, and that appellant
“wasn't going to live happily ever after while she rot[s] in jail.”
Appellant argues that even though Lofton testified,
her due process rights were violated because the court ordered Lofton
to testify and because the court's admonishments might have caused
Lofton to shade her testimony or withhold testimony favorable to
appellant. We are not referred to any place in the record where the
trial court ordered Lofton to testify, nor do we find any other
indication in the record that Lofton's decision to testify was
involuntary. Moreover, there is no evidence that Lofton's testimony
was altered in any way by the court's admonishment. In January 2003,
two months before appellant's trial began, Lofton gave a recorded,
sworn statement to defense counsel. This statement, which is the
subject of appellant's next point of error, appears in the record as
court's exhibit fifteen. We have compared this statement to Lofton's
trial testimony, and find no material differences. Indeed, the trial
record indicates that defense counsel used the statement as a template
for his questioning. We hold that the trial court's perjury
admonishment did not violate appellant's due process rights because it
had no effect on Lofton's trial testimony. Point of error
twenty-four is overruled.
Prior consistent statement
During Lofton's cross-examination, she acknowledged
making statements to a prosecutor that were inconsistent with some of
her trial testimony. Lofton also testified that she had met
appellant in jail and maintained a correspondence with her. In one
of Lofton's letters to appellant, she told her “there is no limit to
what I wouldn't do for you.” Lofton asked appellant for several
favors, including money, support letters for her parole hearing, and
legal assistance. Lofton admitted receiving $200 from appellant
during the summer of 2002, about one year before appellant's trial
began. Appellant had also given Lofton a gift of stationery and
envelopes, and a friend of appellant had put $50 in Lofton's prison
Following this cross-examination, appellant sought
to introduce the transcribed statement Lofton gave to defense counsel
in January 2003. The State's hearsay objection was sustained.
Appellant argues that the statement was not hearsay because it was
consistent with Lofton's trial testimony and was offered to rebut the
charge of recent fabrication. See Tex.R. Evid. 801(e)(1)(B). But to
be admissible under this rule, the prior consistent statement must
have been made before the alleged motive to fabricate arose.
Haughton v. State, 805 S.W.2d 405, 408 (Tex.Crim.App.1990). A
consistent statement made after the motive to fabricate arose does not
rebut the charge. Id. The record shows that Lofton's motive to
fabricate arose in the summer of 2002, when appellant gave her $200
dollars and Lofton began writing letters to appellant asking for
favors. Because Lofton's January 2003 statement was made after the
motive to fabricate arose, it did not rehabilitate Lofton and was not
admissible under rule 801(e)(1)(B). Point of error twenty-five is
Appellant contends that her right to confront the
witnesses against her was violated by rulings limiting her
cross-examination of Tarlton and excluding evidence regarding
Tarlton's relationship with a woman named Zan Ray. Appellant makes
the same arguments with respect to Tarlton's encounter with a man
named Reginald Breaux.
A criminal defendant is constitutionally entitled
to confront the witnesses against her. U.S. Const. amend. VI, XIV;
Tex. Const. art. I, § 10. As part of this right, a defendant must
be given great latitude to show any fact that might tend to affect a
witness's credibility, including ill feeling, bias, or motive.
Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986); Carroll v. State, 916 S.W.2d 494, 497
(Tex.Crim.App.1996). At the same time, a trial court has discretion
with respect to the extent of cross-examination and the admission of
evidence generally, and its decision will not be disturbed absent a
clear abuse of discretion. Cantu v. State, 939 S.W.2d 627, 635
Tarlton had a relationship with Zan Ray before she
met appellant. Outside the jury's presence, Ray testified that she
was Tarlton's Alcoholics Anonymous sponsor. When Ray's husband
committed suicide, Tarlton was very supportive and the two women soon
began a romantic relationship. Ray said that she had never before
had a sexual relationship with a woman, and she described her
relationship with Tarlton as “trauma bonding.” Ray said that the
relationship ended about one year after it began when Tarlton resumed
drinking and was arrested for assault. The trial court did not
permit Ray to testify before the jury, and appellant complains that
the court also refused to permit her to cross-examine Tarlton
concerning her relationship with Ray.
Reginald Breaux was the man Tarlton allegedly
assaulted. Breaux testified outside the jury's presence that on
September 16, 1998, he was standing in front of a convenience store
waiting for a bus when Tarlton stopped and offered him a ride in her
car, which he accepted. Breaux said that Tarlton appeared to have
been drinking. She gave him money to purchase a six-pack of beer at
the convenience store. They then drove around drinking the beer.
Eventually, they returned to the convenience store and Tarlton parked.
Breaux said that Tarlton then took an open knife from her pocket.
He took the knife from her and she began to curse him. Breaux got
out of the car and, as he walked toward the store, Tarlton struck him
with her car, leaving him with a deep thigh bruise but no serious
injury. When cross-examined by the State, Breaux admitted that he
did not tell the police officers who investigated this incident that
Tarlton had been armed with a knife. He also acknowledged having
several convictions for burglary of a vehicle, unauthorized use of a
vehicle, possession of cocaine, theft by check, and assault.
Tarlton also described this incident outside the
jury's presence. According to her, Breaux became belligerent when
she returned to the convenience store and told him that he had to get
out of the car. As he walked away, Breaux said something she did not
understand and then threw a beer can at her car. When Tarlton tried
to drive away, Breaux jumped in front of her car and was struck.
It was undisputed that Tarlton was arrested for
assaulting Breaux, but the charge was later dismissed. The trial
court did not permit Breaux to testify before the jury and did not
allow appellant to cross-examine Tarlton about this incident.
Appellant called three experts to testify regarding
Tarlton's mental status: Susan Millholland, a counselor who conducted
individual therapy sessions with Tarlton while she was at Timberlawn
in March 1999; Dr. Howard Miller, a psychiatrist who was Tarlton's
attending physician at Timberlawn; and Dr. Jerome Brown, a clinical
psychologist who had studied Tarlton's medical records dating from
September 1998 but had never treated her. These witnesses were
permitted to testify to their professional assessments of Tarlton's
mental health, but appellant was not allowed to question them about
statements Tarlton made to them regarding the Breaux incident.
Appellant was also not allowed to question Dr. Richard Coons, a
psychiatrist called by the State, about this incident.
It was undisputed that Tarlton's renewed drinking
and her assault arrest led her to enter St. David's Pavilion in the
fall of 1998, where she later met appellant. Appellant argues that
the trial court abused its discretion by refusing to allow her to
cross-examine Tarlton and the mental health witnesses about the
reasons she committed herself to St. David's, or to offer Ray's and
Breaux's proffered testimony about this subject. Appellant relies on
the opinion in Virts v. State, 739 S.W.2d 25, 30 (Tex.Crim.App.1987),
in which the court held that a defendant should have been permitted to
cross-examine an accomplice witness regarding the witness's history of
psychiatric problems. The court was of the opinion that the excluded
cross-examination might have aided the jury's consideration of the
accomplice's credibility. Id.
This cause is readily distinguishable from Virts.
Appellant's cross-examination of Tarlton consumes over three hundred
pages of the reporter's record, and much of it concerned Tarlton's
psychiatric history. By this cross-examination and through the
testimony of the defense experts mentioned above, appellant was able
to show that in late 1998 and early 1999 Tarlton was clinically
depressed, suicidal, and delusional. Millholland testified that
Tarlton was difficult to work with because she was untruthful at
counseling sessions. Millholland also testified that after appellant
and Tarlton were given separate rooms at Timberlawn, Tarlton told her
that this problem “would be solved if certain people met with untimely
deaths.” Miller testified that Tarlton was suffering from bipolar
disorder and had a delusional belief that Beard “was the bad guy who
was pulling Celeste away from her and making trouble in Tracey's
life.” Brown testified that his review of the medical records led
him to conclude that Tarlton had a “pathological obsessive attachment”
to appellant. He agreed with Miller's diagnosis of bipolar
This brief summary of the expert testimony
demonstrates that appellant was given a full opportunity to offer
evidence regarding the mental-health issues relevant to Tarlton's
credibility as a witness. Furthermore, and contrary to the specific
complaints made in appellant's brief, the trial court did not deny her
the opportunity to cross-examine Tarlton regarding her relationship
with Ray as it related to her admission to St. David's. The court
ruled, “I will allow you to ask if she went into St. David's because
of the breakup of her relationship with Zan Ray.” The court also
allowed appellant to cross-examine Tarlton regarding her alleged
“recruitment” of Ray into a lesbian relationship. Tarlton denied
this, but she acknowledged that she had a history of entering
relationships with married women that ultimately failed. Although
appellant was not allowed to cross-examine Tarlton regarding the
details of her relationship with Ray, and the court also refused to
admit Ray's proffered testimony summarized above, appellant's brief
does not specifically address these rulings, and she offers no
argument that they were an abuse of discretion. Point of error
twenty-six is overruled.
We also find no abuse of discretion in the trial
court's refusal to permit evidence of the Breaux incident. With an
exception not applicable here, the credibility of a witness may not be
impeached by proof of specific instances of conduct. Tex.R. Evid.
608(b). With regard to appellant's broader argument that she was
entitled to show why Tarlton entered St. David's in 1998, the record
shows that the jury was fully aware of Tarlton's psychiatric history
and of her diagnosis in 1998. The details of the Breaux incident
were, in themselves, of little or no relevance to any material issue
in the case, and the trial court could reasonably conclude that any
probative value of the evidence was outweighed by the danger of undue
delay and confusion of the issues. Tex.R. Evid. 403. Point of error
twenty-seven is overruled.
Appellant urges that the trial court erred by
permitting the State to introduce in evidence a videotaped deposition
she gave in a civil suit filed by Beard's three children after his
death. The children asserted that appellant was responsible for
Beard's death and sought a temporary injunction to prevent appellant
from wasting the assets of Beard's estate. Appellant was deposed by
counsel for the plaintiffs in August 2000. Two months later, the
case was non-suited and the cause was dismissed.
Evidence rule 804 provides exceptions to the
hearsay rule when the declarant is unavailable to testify. Tex.R.
Evid. 804. One of the exceptions is for the testimony of a witness
at another hearing of the same or a different proceeding. Id. rule
804(b)(1). In a criminal case, the party against whom the testimony
is offered must have had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination at the prior
hearing. Id. The rule further provides that the use of depositions
in criminal cases is controlled by chapter 39 of the code of criminal
procedure. Id.; see Tex.Code Crim. Proc. Ann. arts. 39.01-.14 (West
2005 & Supp.2005).
Chapter 39 has detailed provisions governing when
and how a deposition may be taken in a criminal case. See Tex.Code
Crim. Proc. Ann. arts. 39.01, .02 (West Supp.2005), art. 39.03 (West
2005). It has been held that, unless the requirements of chapter 39
were complied with, a civil deposition is inadmissible in a criminal
prosecution. State v. Roberts, 909 S.W.2d 110, 114 (Tex.App.-Houston
[14th Dist.] 1995), vacated on other grounds, 940 S.W.2d 655, 660
Appellant contends that the deposition she gave in the civil suit was
inadmissible under rule 804(b)(1) because it was not taken in
compliance with the requirements of chapter 39. She also contends
that she was not shown to have had the same motive and opportunity to
develop the testimony at the deposition.
There is no question that appellant's civil
deposition was not taken in compliance with chapter 39. As another
court of appeals has explained, however, chapter 39 applies to the use
of civil depositions in criminal proceedings only through rule
804(b)(1). Kemmerer v. State, 113 S.W.3d 513, 518 (Tex.App.-Houston
[1st Dist.] 2003, pet. ref'd). Rule 804(b)(1) creates an exception to
the hearsay rule and has no application if the declarant's
out-of-court statement is not hearsay. Id. A statement is not
hearsay if it is offered against a party and is the party's own
statement. Tex.R. Evid. 801(e)(2)(A). Because appellant's civil
deposition was not hearsay when offered against her, rule 804(b)(1)
was inapplicable and any noncompliance with the rule, including the
incorporated requirements of chapter 39, was irrelevant. Kemmerer,
113 S.W.3d at 517-18. Point of error twenty-eight is overruled.
Summaries of Telephone Records
The billing records for eleven cell phone numbers,
all billed to either Beard or Tarlton, were introduced in evidence as
State exhibit 185. These records documented thousands of calls made
between May 1999 and July 2000. Annetta Black, a forensic analyst
employed by the State, prepared six spreadsheets summarizing these
records, which were introduced in evidence as State exhibits 179
through 184. Exhibits 179 and 180 show all of the calls made to or
from the billed numbers. Exhibits 181 through 184 show only calls
between phones associated with Tarlton and appellant. The
spreadsheets were introduced pursuant to evidence rule 1006, which
provides that the contents of voluminous writings, otherwise
admissible, that cannot conveniently be examined in court may be
presented in the form of a chart or summary. Tex.R. Evid. 1006.
There is no dispute that the requisites of rule
1006 were facially satisfied: the phone records were voluminous,
admissible, and made available to appellant for examination and
copying. Nevertheless, appellant contends that rule 1006 was misused
in this cause because the spreadsheets did not accurately summarize
the actual billing records and contained additional, unsupported
material that was no more than the State's view of the case
masquerading as evidence. She further argues that because of the
misleading nature of the spreadsheets, their admission violated rule
403. Appellant relies on the opinion in Wheatfall v. State, 882
S.W.2d 829, 839 (Tex.Crim.App.1994). In that case, the State
introduced a purported summary of the defendant's violent criminal
history for which there was no supporting documentation. Id. at 838 &
839 n. 10. The court of criminal appeals held that rule 1006 does
not permit the State to “summarize [its] case on legal paper and
submit those documents to the trial court as ‘evidence.’ ” Id. at
Appellant asserts that the spreadsheets were
inaccurate and misleading in three respects: they showed calls made
to land line numbers for which the State did not have billing records,
they showed calls between the cell phones that were not reflected in
the billing records, and they identified certain phone numbers as
belonging to persons who were not named in the billing records. We
will first describe the spreadsheets in greater detail, then address
each of the alleged inaccuracies.
Each spreadsheet has a column for each of the
eleven cell phone numbers for which there were billing records. At
the top of each column is the telephone number and a name linking the
number to either appellant, Tarlton, Beard, Kristina, or Jennifer.
The billing records reflect that two of the cell phone numbers were
billed to Tarlton. On the spreadsheets, however, Tarlton's name is
linked to only one of these numbers. The other number is identified
as being for appellant. The other nine cell phone numbers were
billed to Beard, but in the spreadsheets his name is attached to only
one of the numbers. Of the other numbers billed to Beard, four are
identified as belonging to appellant, two are linked to Kristina, and
two are shown to be Jennifer's. Each spreadsheet also has five
additional columns for five land line phone numbers for which the
State did not have billing records. One of these numbers is
identified as being Tarlton's home number, two as being Tarlton's work
numbers, and two as being the Beard home phone numbers. Each line in
the spreadsheets shows an incoming call to or outgoing call from one
of the sixteen phone numbers, with its date, time, and duration.
When a call was made from one number on the spreadsheet to another,
the line shows both the outgoing call from the first number and the
corresponding incoming call to the second number.
We first address the five land lines. Black
testified that although she did not have the land line billing
records, each call shown being made to one of the land lines was
documented in the cell phone billing records.8
In other words, the billing records for one of the cell phones showed
that the phone had been used to make a call to one of the land line
numbers. Our examination of the spreadsheets confirms that for every
call shown as being made to a land line, there is a corresponding call
made from a cell phone. Thus, although the State did not have the
land line billing records, the spreadsheets accurately summarize cell
phone billing records reflecting calls to the land lines.
Appellant's second complaint has to do with calls
made between two of the billed cell phone numbers. Appellant has
identified a relatively small number of instances (but she claims
there could be more) where the spreadsheets show that a call was made
between two phones, but the call is documented in the billing records
for only one of the phones. For example, the spreadsheet shows that
a call was made from cell phone A to cell phone B, the billing records
for cell phone A confirm that the call was made to cell phone B, but
the billing records for cell phone B do not reflect the receipt of the
call. Black acknowledged this anomaly in the billing records and
could not explain it. Nevertheless, Black insisted that there is a
billing record for every call shown in the spreadsheets, and appellant
makes no showing to the contrary. The anomaly identified by
appellant goes to the accuracy of the billing records themselves-an
issue that is not before us-rather than to the accuracy of the
spreadsheet summaries of the billing records.
Appellant's final complaint regarding the
spreadsheets concerns the names associated with the various phone
numbers. Tarlton identified the three land lines shown in the
spreadsheets as her home and work numbers. She also testified that
one of the cell phone numbers billed to her, and identified in the
spreadsheets as being her number, was the phone she regularly used.
Tarlton testified that the other cell phone billed to her was
purchased in January 2000 after appellant's daughters changed all of
the Beard telephone numbers. She testified that this phone, which is
identified in the spreadsheets as being used by appellant, was kept by
appellant and used by her to call Tarlton. Consistent with this
testimony, the spreadsheets show no activity for this phone number
until January 2000. Other testimony shows that this was the
so-called “secret” cell phone discovered in appellant's car on the day
Beard died and later seen in appellant's possession.
Jennifer and Kristina identified the two land line
numbers shown in the spreadsheets as the Beard home phones. They
also testified that, as shown in the spreadsheets, one of the cell
phone numbers billed to Beard was his car phone, one was appellant's
car phone, two were appellant's primary cell phone (before and after
the number was changed), two were Jennifer's cell phone (before and
after the number was changed), and two were Kristina's cell phone
(before and after the number was changed). They acknowledged that
the members of the Beard household sometimes used each other's cell
The last cell phone number billed to Beard, shown
in the spreadsheets as being used by appellant, was not identified by
any witness. The exhibits reflect no activity for this number until
April 2000, well after the critical time period in this cause.
Obviously, this phone could not have been used by Beard, who died in
January 2000. Neither Jennifer nor Kristina could identify the
number, from which it can be inferred that neither of them used the
phone. This inference is also supported by evidence that by April
2000, the twins were estranged from appellant and no longer lived or
communicated with her. The circumstantial evidence therefore
supports the identification of this number with appellant.
Contrary to appellant's argument, the
identification of the various telephone numbers with a particular
person in the spreadsheets was not merely the State's interpretation
of the billing records. Instead, there is evidence linking each
telephone number to the person identified. This distinguishes this
cause from Wheatfall, where there was no testimony to support the
purported summaries. 882 S.W.2d at 838. Although this supporting
evidence was outside the summarized telephone records, we do not
believe that this rendered the spreadsheets inadmissible under rule
1006. See Rodriguez v. State, 90 S.W.3d 340, 373-74 (Tex.App.-El
Paso 2001, pet. ref'd) (inclusion of certain conclusions and
characterizations did not render record summaries inadmissible).
The trial court's admission of exhibits 179 through
184 has not been shown to be an abuse of discretion. Points of error
twenty-nine through thirty-five are overruled.
Appellant contends that her convictions for both
capital murder and injury to an elderly person constitute double
jeopardy. See U.S. Const. amends. V, XIV. The Fifth Amendment
guarantee against double jeopardy is enforceable against the states
through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784,
787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). That guarantee protects
against a second prosecution for the same offense after a conviction
or an acquittal, and against multiple punishments for the same
offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
23 L.Ed.2d 656 (1969). It is the latter protection that is asserted
here. Although appellant also cites the double jeopardy clause of
the Texas Constitution, she does not argue that the protection it
affords differs from that afforded by the United States Constitution.
See Tex. Const. art. I, § 10.
Appellant raised the double jeopardy issue in the
trial court after the jury's guilty verdicts were returned but before
the punishment phase began. Appellant urged that judgments could not
constitutionally be entered for both offenses and asked the court to
require the State to elect. The State contends that appellant's
objection came too late and that the double jeopardy issue was not
preserved for appeal.
A double jeopardy violation may be raised for the
first time on appeal if the violation is clearly apparent on the face
of the record and when enforcement of the usual rules of procedural
default would serve no legitimate state interests. Gonzalez v. State,
8 S.W.3d 640, 643 (Tex.Crim.App.2000). Because it is undisputed that
appellant's two convictions are based on the same conduct, if there is
a double jeopardy violation it is apparent on the face of the record.
And because both convictions arise out of the same trial,
enforcement of the usual rules of procedural default would serve no
legitimate state interest. Honeycutt v. State, 82 S.W.3d 545, 547
(Tex.App.-San Antonio 2002, pet. ref'd). The State argues that if
appellant had raised the issue earlier, the punishment phase of trial
might have been unnecessary, thus saving judicial resources. But
this argument has no merit because appellant's objection came before
the punishment phase began. We conclude that the alleged double
jeopardy violation is properly before us.
The Double Jeopardy Clause does not impose a
limitation on the legislative prerogative to prescribe the scope of
punishment. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74
L.Ed.2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 958-59
(Tex.Crim.App.1992). A defendant suffers multiple punishments in
violation of the Fifth Amendment only when she is convicted of more
offenses than the legislature intended. Ex parte Ervin, 991 S.W.2d
804, 807 (Tex.Crim.App.1999). When a legislature specifically
authorizes multiple punishments under two statutes, even if those two
statutes proscribe the “same” conduct, “a court's task of statutory
construction is at an end and the prosecutor may seek and the trial
court or jury may impose cumulative punishment under such statutes in
a single trial.” Hunter, 459 U.S. at 368-69, 103 S.Ct. 673.
Penal code section 22.04, defining the offense of
injury to an elderly person, provides:
A person who is subject to prosecution under both
this section and another section of this code may be prosecuted under
either or both sections. Section 3.04 [mandatory severance] does not
apply to criminal episodes prosecuted under both this section and
another section of this code. If a criminal episode is prosecuted
under both this section and another section of this code and sentences
are assessed for convictions under both sections, the sentences shall
Tex. Pen.Code Ann. § 22.04(h) (West Supp.2005).
This statute plainly authorizes multiple punishments when a
defendant's conduct violates both section 22.04 and another penal code
section. See Gonzalez, 8 S.W.3d at 641 n. 4. Point of error
thirty-six is overruled.
Having overruled all of appellant's points of
error, we affirm the judgments of conviction.
initial appellate brief contained three points of error challenging
the trial court's determination that she was not indigent and refusal
to order the preparation of a free record. These issues became moot
when other arrangements for payment were made. After the record was
filed, appellant filed the brief raising the points we address in this
asserted other grounds for quashing the indictment, but she does not
assert these other grounds on appeal.
also cites Lindsay v. State, in which the defendant was indicted for
conspiring to commit capital murder for remuneration. 588 S.W.2d
570, 571 (Tex.Crim.App.1979). The court held that the indictment did
not give the defendant adequate notice of the conduct she allegedly
committed pursuant to the conspiracy. Id. at 572. The adequacy of
the remuneration allegation was not at issue, and thus the opinion is
not on point in the instant cause.
4. At oral
argument, appellant asked permission to submit for the Court's
consideration a video recording of the exchange between the trial
court and Lofton excerpted from the television coverage of appellant's
trial. Appellant subsequently tendered a DVD containing the
recording. We decline to consider the recording over the State's
objection because it is not part of the official record and because
the reporter's record is adequate for our consideration of this point
of error. See Wright v. State, 178 S.W.3d 905, 917 (Tex.App.-Houston
[14th Dist.] 2005, pet. filed).
to the State's argument, defense counsel's objection that the court
was intimidating Lofton was sufficient to preserve this contention for
appellant did not expressly refer to the Sixth Amendment, we believe
that the arguments advanced during her many attempts to introduce this
evidence were sufficient to make the trial court aware of her
complaint. See Tex.R.App. P. 33.1(a)(1)(A). We decline the State's
invitation to dispose of these issues on the ground that they were not
preserved for review.
court of criminal appeals vacated the judgment of the court of appeals
on the ground that the State was not entitled to appeal the order
excluding the deposition. State v. Roberts, 940 S.W.2d 655, 660
(Tex.Crim.App.1996). The court later reconsidered the scope of the
State's right of appeal and overruled its holding in Roberts. State
v. Medrano, 67 S.W.3d 892, 901 (Tex.Crim.App.2002).
are no entries in the spreadsheets for calls from a land line number
to a cell phone number.
W. KENNETH LAW, Chief Justice.