Muneer Mohammed Deeb v. State ( 1992 )

Deeb v. State

IN THE

TENTH COURT OF APPEALS

No. 10-91-237-CR

        MUNEER MOHAMMED DEEB,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 24544

O P I N I O N

          Appellant was convicted of capital murder and sentenced to death. However, the Court of Criminal Appeals reversed his conviction and remanded the cause for a new trial. See Deeb v. State, 815 S.W.2d 692 (Tex. Crim. App. 1991).

          Appellant filed an application for a writ of habeas corpus, requesting the trial court to set bail pending the new trial. The court held a hearing on the application on December 5, 1991. At the hearing, the State offered into evidence the indictment in the original cause, the charges on guilt-innocence and punishment, and the Court of Criminal Appeals' opinion. The State also asked the court to take judicial notice of the testimony in the original trial. Appellant's original trial counsel testified that Appellant was a "good bond risk." The court, however, refused to set bail. Appellant appeals, complaining that the court erred when it denied bail. We will affirm.

          A defendant is entitled to reasonable bail unless he is charged with a capital offense and the "proof is evident." Tex. Const. art. I, § 11; Tex. Code Crim. Proc. Ann. arts. 1.07, 16.15 (Vernon 1980). "Proof evident" means that "the evidence is clear and strong leading a well guarded and dispassionate judgment to the conclusion that a capital murder has been committed; that the accused is a guilty party; and that the accused will be convicted of capital murder with the jury returning findings which will require the imposition of the death sentence." McKenzie v. State, 777 S.W.2d 746, 749 (Tex. App.—Beaumont 1989, pet. denied) (emphasis added); see also Ex parte Hammond, 540 S.W.2d 328, 330 (Tex. Crim. App. 1976). When reviewing a denial of bail, the trial court's conclusion that the proof is evident should be given "considerable weight." McKenzie, 777 S.W.2d at 751.

          The testimony of Daryl Beckham, who was in prison with one of Appellant's co-conspirators, was admitted at the original trial. The Court of Criminal Appeals ruled that this testimony was inadmissible hearsay. The following portions of the Court of Criminal Appeals' opinion demonstrate that, even without Beckham's testimony, the proof is evident.

On July 13, 1982, Jill Montgomery, Kenneth Franks, and Raylene Rice were murdered. . . .

The tortured bodies of Kenneth, Jill and Raylene were found on July 14th in Speegleville Park, which is located near Koehne Park.

During the early evening hours of July 13th, David Wayne Spence, Gilbert Melendez, and his brother, Andy Melendez, were driving around Koehne Park in Spence's car when they came into contact with Kenneth, Jill and Raylene. Spence, the Melendez brothers and the victims consumed beer and smoked marihuana. Spence persuaded the others to get in his car so that they could purchase more beer at a nearby convenience store. They left Raylene's car in Koehne Park.

Spence drove his car with Jill sitting next to him and Kenneth next to the passenger door; Raylene and the Melendez brothers sat in the back seat of the car. After Spence had harassed Jill and touched her breasts, she complained. Spence told her she couldn't tell him what to do. . . .

Spence soon parked his car in Koehne Park. Everyone got out of the car. Spence produced a knife and ordered Jill and Raylene to undress. Spence threatened the girls with his knife. They obeyed his order. Spence raped Jill, and later, Raylene. Gilbert Melendez raped Raylene. Anthony Melendez raped Jill.

Spence then returned to Jill. He cut and stabbed her with his knife. Anthony Melendez then stabbed Jill with Spence's knife. Spence then bit Jill several times and stabbed her again.

After murdering Jill, Spence returned to his car where he fatally stabbed Kenneth. Spence then turned to Raylene and fatally stabbed her.

Deeb, 815 S.W.2d at 699-700. This evidence shows that a capital murder was committed.

Jill Montgomery resembled Gayle Kelley. . . .

Appellant took out a $20,000 insurance policy on the life of Gayle Kelley, with himself as beneficiary; appellant told Maria Qasem, wife of his business partner, that if anything happened to Gayle, he would get the money; in the presence of Karim Qasem, appellant's business partner, appellant asked Spence if he knew somebody that would kill Gayle for him; according to Qasem, Spence told appellant that he could get somebody and appellant replied that he could get Spence some money for the job; according to several witnesses, Gayle Kelley and Jill Montgomery resembled one another; after the murder took place, appellant told Karim Qasem that if Gayle had been with Franks, "I would be rich now"; after appellant made the second payment on the insurance policy, he said, "Wait and see, she (Gayle) will die just like them"; appellant at one time told Gayle Kelley that Franks got what he deserved; another time, appellant said to Gayle and a friend of hers, "I did it. I killed them," though he immediately retracted the statement, saying that he was only joking; in September, after Spence was incarcerated, Doris Tucker overheard Spence's girlfriend demand Spence's money from appellant, and heard appellant order Spence's girlfriend out of his store.

Gilbert Melendez, an accomplice of appellant, testified about his contacts with appellant. Gilbert testified that he met appellant through Spence prior to the murder. That Spence told appellant in Gilbert's presence, "I told him about you getting ripped off for your drugs." [A]nd "The one trying to get your shit back." Gilbert said appellant nodded, got nervous and changed the subject.

Gilbert Melendez testified that on the night of the murders, when he and Spence first encountered the three victims, Spence called one of the girls by name and, "she came back with a name that was similar . . ." Gilbert explained that "it was like what he said—he had called her by the wrong name."

Gilbert also testified that he saw appellant two weeks after the murders, again in the company of Spence. Spence told appellant that Melendez asked "If I had gotten any money from you", and "I told him you were good for it, that you were going to get it." Gilbert also testified that appellant replied, "Yeah. I'll get it."

. . .

The evidence set out above [which excludes Beckham's testimony] serves as a sufficient basis for the fact finder's determination that appellant hired David Wayne Spence to kill Gayle Kelley for remuneration and a promise of remuneration, and that Spence caused the death of Jill Montgomery while acting pursuant to that agreement.

Id. at 695, 701-02. Thus, the evidence shows that Appellant is a guilty party.

The facts in the instance case show the calculated nature of appellant's acts and forethought with which he coldly planned, and then recruited someone to carry out, the murders of Kenneth Franks and Gayle Kelley for the respective purposes of revenge and remuneration. Prior to the murders, appellant insured the life of Gayle Kelley, and then told Maria Qasem, "If anything happens to Gayle, I'll get the money." In the presence of Karim Qasem, appellant and David Wayne Spence discussed the plot to get rid of Kelley. At that time, appellant promised Spence payment for the acts. After the murder occurred, appellant calmly told his insurance agent, "The girl that was here, that you sold insurance to, she was supposed to be with them. . . .

On the day after the murder, appellant told Willie Tompkins that his victims "got what they deserved." Appellant told Tompkins about Kenneth Franks, "I don't like him. I hated him." To Tompkins, appellant appeared very serious.

Afterwards, in the presence of Maria Qasem, appellant was reading a newspaper account of the murders and laughing. Appellant told Maria, "Gayle Kelley's boyfriend got killed. . . . One of them should have been Gayle . . . because he would be rich now. . . . he was glad to have them killed. . . . that they deserved it and he wished he would have done it." Appellant also confronted Karim Qasem with these newspaper accounts. Karim Qasem testified that appellant was laughing and excited, "Gayle's boyfriend got killed last night. . . Gayle was supposed to be with him, you know. . . . I don't know why she wasn't. . . .She wouldn't live for long. . . . Gayle would die just like them; she won't live for long." To Karim Qasem, appellant appeared disappointed that Gayle Kelley was not with the victims on the night of the murders.

Approximately a week after the murders, appellant was discussing them with Gayle Kelley. Appellant told her that, "Franks got what he deserved. . . . Franks was not allowed to die quickly, he was made to suffer, stabbed a lot of times around the heart." These facts, which proved appellant showed no remorse for his actions in bringing about the deaths of the victims, also established that appellant may have a propensity to commit future acts of violence.

. . .

Around the time, and after, the murders, appellant spoke to others about his desires to see others killed or injured. Patti Pick testified appellant would come and visit her at the store where she worked. One evening, a stocker was "bad-mouthing" her, whereupon appellant stated, "I don't like him. And I'm going to do something to him. . . . I'll have someone do it. I know people that do that sort of thing and if you have money you can have anything." On another occasion, a friend of hers who was intoxicated was speaking to her when appellant came to the store. Appellant told her, "Tell me if he upsets you, you know, I'll do something to him. I'll—I'll go get in my car and wait for him to come out and I'll run over him." Patti Pick could not recall if the incidents happened before or after the murders, only that they occurred around that time.

Patti Pick also testified that she spoke to appellant in November, 1983, approximately sixteen months after the murders. Appellant told her he was going home to Jordan, but first he was coming to Waco to get even with Truman Simons, Kabena Reed and Willie Tompkins. He told Pick that he should have killed Reed a long time ago, and that Reed was the "reason everything bad happened to him . . . even the lake murders."

. . . In September 1982, after his arrest and release, appellant told Maria Qasem that he was mad at Kelley and was "going to pay her back"; that he was mad at Kelley for "putting him in jail"; and was going to "kick her ass." "He said he didn't really have to do it, he had friends to do it." Karim Qasem also testified that appellant gave alcohol to minors from the Methodist Children Home, and that he gave marihuana and pills to Gayle Kelley while she was a resident of the home.

All of these factors, appellant's cool and calculated approach to the commission of these crimes, his utter lack or remorse and wanton disregard for human life, and the extraneous offenses, lead us to conclude that the fact-finder in the instant case had sufficient evidence before it to decide beyond a reasonable doubt that appellant represented a continuing threat to society.

Id. at 703-04. This evidence shows that the death penalty will be imposed.

          Accordingly, we hold that the proof is evident and that the court did not err when it denied bail. Appellant's point is overruled and the judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 19, 1992

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