Beets v. State

ON MOTION FOR REHEARING

W.C. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A.Penal Code, § 19.03(a)(3). After finding appellant guilty, the jury returned affirmative answers to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death. On direct appeal, we reviewed three points of error presented by the appellant. We overruled the points pertaining to the alleged deficient indictment, as well as the sufficiency of the evidence to support a conviction due to a reliance by the prosecution on accomplice testimony. In regard to the third ground, on original submission we concluded that the State failed to prove beyond a reasonable doubt appellant caused the death of her husband for remuneration, as the facts of the case did not establish a “murder for hire” case. We concluded that the remuneration statute, § 19.03(a)(3),1 supra, did not encompass a situation in which an accused murders another for the deceased’s life insurance proceeds and retirement benefits.

In its motion for rehearing, the State argues that we erred in finding that a murder committed to obtain the proceeds of a deceased’s retirement benefits and life insurance policies was not a murder for remuneration and therefore, not a capital felony under the provisions of § 19.03(a)(3), supra. We have examined this issue and now agree that the conduct proscribed by § 19.03(a)(3), supra, includes the killing of *731a person in order to receive, or for the purpose of receiving, a benefit like an insurance settlement on the life of a deceased victim.

The record reflects2 that on August 6, 1983, at the Redwood Beach Marina near Kemp, an empty boat was found drifting on the lake near the marina. After two marina customers brought the boat to shore, a fishing license issued to “Jimmy Don Beets” was discovered in the boat. The Coast Guard and Parks and Wildlife officials were notified. The authorities telephoned the Beets’ residence several times and finally spoke to the appellant. She arrived at the marina to identify the boat and fishing license. Due to high winds, the authorities decided a search for Beets’s body would commence the following morning.

The following day, Deputy Sheriff Marr and Fire Chief De Woody visited appellant to inquire as to Beets’ possible return home. Appellant stated that her husband had gone fishing the night before but had not returned. At trial, appellant denied Marr and De Woody’s visit to her home. Denny Burks of the City of Dallas Fire Department called on appellant several times after her husband was reported missing. Appellant inquired as to Beets’s coverage under his insurance policies and pension benefits. Burks promised to look into the matter for her. He later learned Beets’s life was insured for close to $110,-000. Furthermore, appellant would be entitled to receive almost $1,200 each month in pension benefits. He relayed this information to appellant. The Dallas City Attorney also informed appellant through her attorney of a mandatory seven year waiting period before any payment of insurance proceeds as Beets’s body had not been recovered.

In the spring of 1985, two years later, Rick Rose, an investigator for the Henderson County Sheriff’s Office became involved in the disappearance of Beets. He had received credible, confidential information that the cause of Beets’s death posed possible questions. At that time, neither Beets’s body nor any remains thereof had been discovered. After an investigation, Rose secured an arrest warrant charging appellant with the murder of Beets. She was arrested June 8,1985. After appellant was incarcerated, Rose secured an eviden-tiary search warrant. Pursuant to the execution of the search warrant, the physical remains of Beets and Doyle Wayne Barker, another former husband of appellant, were discovered buried on the premises of the Beets residence. Two bullets were recovered from Beets’s remains. The Dallas Forensic Science Laboratory identified the remains of the bodies as Beets and Barker. A Collector’s item pistol recovered from the appellant’s residence as a result of another incident was also turned over to the Dallas laboratory.

Robert “Robbie” Branson, son of appellant, testified at trial. At the time appellant falsely reported her husband missing, Robbie was living with them. Appellant told Robbie of her plan to murder Beets, and at her request, he left the residence. Two hours later, he returned and learned she shot and killed her husband. He assisted his mother in placing Beets’s body in the site constructed as the “wishing well.” The following day, appellant placed Beets’s heart pills in his boat. Robbie took the propeller from the boat and abandoned it in the lake. Afterward, appellant met her son and the two of them returned home. At trial, Robbie admitted his participation in burying the body in the wishing well, but denied having killed Beets. He remained silent for two years to “protect his mother”; however, he chose to cooperate with the authorities to avoid prosecution.

Shirley Stegner, daughter of appellant, testified that her mother telephoned her on August 6, 1983. Appellant requested her daughter come to the house. Shirley asked her mother if the plan to kill Beets was completed. Appellant responded in the affirmative. Appellant had discussed the elaborate scheme with her daughter in which appellant would kill Beets, have Robbie drop the body in the lake, and set the boat adrift to appear as if Beets accidental*732ly drowned. After Shirley arrived at her mother’s house, appellant sent her home as “everything was taken care of.” Several weeks later, appellant informed Shirley that “she and Robbie buried Beets in the wishing well.”

The trial judge permitted the testimony relating to the death of Barker, appellant’s former spouse. Shirley testified to events which occurred two years prior to Beets’s disappearance. On October of 1981, appellant told Shirley “she was going to kill Doyle Wayne Barker” because “she couldn’t put up with any more of him beating her and that she didn’t want him around anymore.” Furthermore, the trailer house was in Barker’s name, and if she were to obtain a divorce, he would receive it. Three days later, appellant told Shirley, “it was all over with and she had done what she intended to do.” Appellant waited until Barker was asleep, then she covered the gun with a pillow and fired it twice into Barker’s head. Shirley assisted her mother in disposing of the body. They placed him in a hole in the back yard. The next day, they purchased cinder blocks and built a patio over the hole. Subsequently, a storage shed replaced the patio.

Dr. Charles Petty, the Chief Medical Examiner and Director of the Dallas County Forensic Science Laboratory, testified to the post-mortem autopsy. He identified the bodies as those of Beets and Barker. The cause of death of Beets was “the gunshot wound defect in the skull and in the trunk.” Petty was unable to positively testify that one bullet was fired from the Collector’s item pistol. In regard to Barker, three bullets were recovered from his skeletal remains, and the cause of death was “gunshot wounds.”

Allen Jones, a firearms examiner for Dallas County Forensic Science Laboratory, examined the fired bullets. The bullets were fired from a .38 caliber weapon, but he was unable to testify positively that they were fired from the Collector’s item pistol.

Jackie Collins, niece of Beets, and employee of J.C. Penney Life Insurance Company, testified that the deceased cancelled an insurance policy in the amount of $10,-000 on May 19, 1983. The insurance application was completed without his knowledge. Collins noticed the application because the address on the form was not that of the deceased but that of appellant’s daughter. Appellant was the named beneficiary on the application. Appellant did not deny completing the application, signing the deceased’s name and returning it with the monthly payment.

Peggy Sherrills Webb, an employee of the City of Dallas, and the “Benefits Supervisor with Personnel”, testified that the deceased had a life insurance policy in the amount of $86,000. Appellant was the named beneficiary of the policy.

George Chaney, a document examiner employed for twenty-three years by the Secret Service, and presently employed by a local document examiner in Dallas, testified that the signature on the J.C. Penney insurance application was signed by appellant, but the signature authorizing the cancellation of the policy was the deceased’s signature. Chaney further testified that the signature on the certification of transfer for a boat sold by appellant after Beets’s death was that of the appellant.

Jerry Hast, an employee of the City of Dallas, and the “Administrator of the Dallas Police and Fire Pension Fund”, testified concerning an application for benefits filed by an attorney on behalf of appellant. He testified that the pension board voted to approve a settlement with appellant for her pension benefits. The settlement would be finalized on June 10, 1985. However, the settlement was cancelled after members of the board learned appellant was arrested for the murder of Beets. The appellant was to receive $15,852.59, plus a monthly benefit of $790.42 for the rest of her life as long as she remained single.

E. Stewart Elrich, Jr., Manager of the Group Life Claim Department of Republic National Life Group Insurance Company, testified his company issued a life insurance policy on the deceased in the amount of $23,428. The policy also contained an accidental death provision in the amount of $20,000. An attorney wrote the company *733on behalf of appellant stating that “an application had been made for administration of an estate.” No action was ever taken on the attorney’s demand letter.

The defense called Faye Lane, another daughter of appellant. Lane testified that neither Robbie nor Shirley spoke of their mother’s confession of killing Beets or Barker, nor of participating in their burial after killing them. Lane also testified that “everything that [Robbie has] ever told her, [she] believed.”

Raymond Bone, who lived with appellant after Beets’s disappearance, also testified. Bone entered into an agreement with law enforcement officials to keep them posted as to the whereabouts of appellant. Before appellant was arrested, Bone notified the authorities as to her whereabouts. Bone did not believe the appellant killed Beets. In support of his belief, he offered the following: “I lived with her and ... she always treated me decent.”

Bobby Wayne Branson, son of appellant, testified that prior to Beets’s disappearance, Robbie and Beets had a “couple” of arguments. Bobby also testified to living with his mother and Barker during their marriage. Some time later, Bobby noticed Barker was no longer around the house. He inquired as to Barker’s whereabouts. Appellant replied: “[H]e was just gone ... he left.”

Appellant testified in her own behalf. In regard to the killing of Beets, her testimony was contrary to statements of her son Robbie. She testified that Robbie shot and killed Beets, and that she merely assisted him in disposing of the body. Appellant stated, “I could never hurt Jimmy Don ... I loved Jimmy Don. Nobody’s ever been as good to me as he was.” She admitted to falsely reporting Beets as missing. Appellant testified that the evening Beets allegedly went boating, he and Robbie began arguing. The argument occurred in the bedroom. Appellant was in the living room. The argument generated into physical blows. Soon thereafter, appellant heard a shot fired from a pistol. She went into the bedroom and saw Beets lying on the floor. Appellant told Robbie to find his brother Bobby. She attempted to care for Beets, who appeared dead, by putting a bedsheet over his body. She proceeded to tell him, as if he were still alive, he must understand that to protect Robbie, they must bury him in their front yard. Appellant then telephoned Shirley, and asked her to come to the trailer house. When Shirley arrived, Beets’s body was still in the bedroom. Shirley did not see the body. Appellant told Shirley that Beets had gone to Dallas that evening with a friend. After appellant told Shirley “everything was all right”, Shirley left and returned home to Dallas. Appellant and Robbie waited until Bobby was asleep. They then “put Beets’s body into the planter.” Appellant told Robbie “[she] would take the blame” if the authorities ever discovered the body.

Regarding insurance and benefits, appellant testified that one of her attorneys suggested a recovery on the insurance policies. She stated, “I didn’t expect to get any of it ... I’ve never felt like I was entitled to anything.” She admitted to selling Beets’s boat and trying to sell a house that was Beets’s separate property. However, the house (which mysteriously burned) was for sale before Beets disappeared. She admitted to trying to recover on the fire insurance policy. She further admitted to taking out the J.C. Penney life insurance policy that Beets eventually cancelled.

On cross-examination, appellant admitted to a previous conviction of the misdemean- or offense of public lewdness. She also admitted to having another misdemeanor conviction for shooting a former husband, Bill Lane, in the side and stomach. She denied knowing that Barker was buried in the back yard of her residence.

In this motion for rehearing, the State argues that we erred in finding that a murder committed for the purpose of obtaining the proceeds of a deceased’s retirement benefits and life insurance policies was not a murder for remuneration and therefore, not a capital felony under the provisions of V.T.C.A., Penal Code, § 19.03(a)(3) and (b). The statute provides:

(3) the person commits the murder for remuneration or the promise of remu*734neration or employs another to commit the murder for remuneration or the promise of remuneration, (emphasis added)

An inquiry into the meaning of the word “remuneration” does not uphold the proposition that “murder for remuneration” is limited to “murder for hire,” as we found on original submission. Webster’s New International Dictionary, Third Edition, Unabridged, 1971 defines “remunerate” as:

1) to pay an equivalent for (as a service, loss, expense); 2) to pay an equivalent to (a person) for a service, loss or expense: recompense, compensate: syn see pay.

In Webster’s Second New International Dictionary, Unabridged, 1948, it instructs on the usage of “remunerate” as:

Remunerate frequently adds to compensate the implication of reward; as ‘He that would kill him should have a great remuneration and double wages.’ Compensate and remunerate are often politely used when pay might have a more or less offensive connotation.

It is apparent that the definition of “remuneration” does not mandate the narrow construction requiring salary, payment, or reward paid to an agent by his principal as in a strict murder for hire situation. Remunerate encompasses a broad range of situations, including compensation for loss or suffering and the idea of a reward given or received because of some act. We shall adhere to § 1.05 of the Texas Penal Code which requires that “the provisions of this Code shall be construed according to the fair import of their terms.” See V.T.C.A. Penal Code, § 1.05. In the instant case, the import of remuneration is one paid for a loss or suffering. While previous cases may not provide an absolute resolution to our interpretive analysis, it is instructive to examine several of our prior decisions where we find at least implicit acceptance of the broader interpretation of § 19.03(a)(3), supra.

Contrary to our position on original submission, analysis of several previous remuneration cases supports the argument advanced by the State that this Court has at least implicitly decided the issue adverse to the appellant. In O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979), the defendant was convicted for the murder of his eight year old son, Timothy, for remuneration or the promise thereof, namely the proceeds from a life insurance policy on the life of Timothy. We affirmed the conviction and death sentence in the case. As in the instant cause, the indictment in O’Bryan, supra, alleged murder “for remuneration”, namely the proceeds of a life insurance policy. In the instant appeal, the evidence reflects that appellant killed her husband for the proceeds of the life insurance policies and pension benefits. Appellant would receive $43,428.33 in an accidental death policy, another $86,000 from a policy with the City of Dallas, $15,852.59 from the pension board and a monthly benefit of $790.42 the rest of her life as long as she remained single, in addition to $3,200 from the sale of the deceased’s Glastron ski boat. She also filed a claim under a fire insurance policy for damage to the separate property home in the estate of Jimmy Don Beets. In O’Bryan, supra, the facts supported the proposition that the defendant killed the deceased in the manner proscribed in § 19.03(a)(3), murder for remuneration or murder for pecuniary gain. The facts in the instant case support the same conclusion.

We again construed the term “remuneration” in McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). The appellant had been charged with murdering the victims “for remuneration or the promise thereof, which was to be money from the proceeds of life insurance and the estate of Paul and Mary Cantrell.” Id at 510. Appellant challenged the sufficiency of the evidence to show that the murder was committed for remuneration or the promise thereof. We held the evidence was sufficient to prove the remuneration element and in so doing, noted the following:

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

*735Id. at 513.

Ia McManus, supra, the appellant killed his victims in expectation of receiving a portion of the proceeds from the victims’ life insurance and estate. It was never proven that the victims’ daughter, Paula Cantrell, promised appellant a share in the ill-gotten gains. There was no showing of a culpable “promisor.” The lack of such a promisor was irrelevant in regard to the sufficiency of the evidence to sustain the remuneration element. The element was fulfilled by the appellant’s expectation of receiving money as a result of the killing:3

The record clearly reflects that appellant expected to share in the proceeds from the estate of the victims and that he acted out of an expectation that he would receive such remuneration.

Id at 513.

Therefore, contrary to what was stated on original submission, the existence of a “culpable promisor” is not required to establish remuneration as reflected here. The focus is on the actor’s intent or state of mind: Did the actor kill in the expectation of receiving some benefit or compensation, e.g., life insurance proceeds, pension benefits? If so, remuneration outside the sphere of “murder for hire” cases is established.

A more recent case further illustrates remuneration in expectation of financial reward. In Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985), the indictment charged two theories of remuneration; the first paragraph alleged “murder for hire”, and the second paragraph alleged “murder for proceeds of his mother’s estate.” The State ultimately proceeded on the “murder for proceeds of his mother’s estate.” Whereupon, the appellant in Duff-Smith, supra, was convicted and sentenced to death under the theory of remuneration, or murder for financial gain. The Duff-Smith, supra, theory is similar to the theory in the instant case.

In affirming the conviction in the Duff-Smith, supra, case, we reviewed the sufficiency of evidence supporting the conviction in regard to thé corroboration of the accomplice testimony. We held the accomplice testimony was sufficiently corroborated with respect to the remuneration element. The testimony was corroborated as there was evidence “... to support the State’s theory that the appellant’s primary motive in having his mother killed was his desire to immediately reap the proceeds of her estate.” Id at 33. The accomplice testimony was corroborated in regard to the remuneration element, as the evidence indicated the killer murdered the victim in order to receive his mother’s estate. In both McManus, supra, and Duff-Smith, supra, we examined the remuneration theories advanced by the State. We affirmed the cases upon finding the theories sufficiently proven. The above cases are identical to the case at bar, a murder for gain or reward.

In our prior opinion, we also discussed the Oklahoma Court of Criminal Appeals opinions in Johnson v. State, 665 P.2d 815, (Okla.Cr.1982) and Boutwell v. State, 659 P.2d 322 (Okla.Cr.1983). We inadvertently concluded that the meaning of the word “remuneration” is “not so broad as to include all killings for pecuniary gain.” In the Oklahoma cases cited by the majority, the Oklahoma court considered whether a robbery-murder was a murder for remuneration under the Oklahoma capital murder statute. The Oklahoma court rejected this contention upon finding that the mere showing a murder was committed in the course of robbery does not amount to a showing of a murder for remuneration. There was no indication that the defendants committed the murders primarily to obtain financial reward.

In Boutwell, supra, the purpose of the killing was to avoid identification. Id at *736328. Moreover, the Boutwell, supra, court observed that the aggravating circumstances or murder for remuneration is normally applied to the hired killer or to the hiring of a hired killer. However, the court further recognized that such a construction of the term is not so restrictive. The court observed that “murder for remuneration has also been applied to killings motivated primarily to obtain proceeds from an insurance policy, [and] murder of a testator in order to secure a devise or legacy ...” Johnson, supra, at 824. It is therefore evident the Oklahoma Court of Criminal Appeals construes “remuneration” to include scenarios other than “murder-for-hire.” In Chaney v. State, 612 P.2d 269 (Okla.Cr.1980), the defendant kidnapped his victims, held them for ransom, and eventually killed them. Id at 269. The Oklahoma Court of Criminal Appeals held that the evidence supported the jury’s finding that “... the defendant committed the murder for remuneration or the promise of remuneration, in that he killed both (victims) while attempting to extort $500,000 ...” Id at 282, fn. 1. The murder was committed “for remuneration” as the killer’s primary motivation was financial gain through extortion money. This case exemplifies a “murder for remuneration”, not a “murder for hire”. In conclusion to our examination of the Oklahoma cases, we note the Oklahoma court never construed “remuneration” as to limit the statute to “murder-for-hire” scenarios.

On original submission, we also attempted to ascertain the legislative intent behind § 19.03(a)(3), supra. The capital murder statute was derived from House Bill 200, passed by the 63rd Legislature. See Acts 1973, 63rd Leg., ch. 426, p. 1122. To determine legislative intent, we have reviewed the legislative history of § 19.03(a)(3), supra, which commenced as House Bill 200, Acts 1973, 63rd Leg., Ch. 426. In our prior opinion, we construed § 19.03(a)(3), supra, as applicable only in a situation involving a minimum of three individuals: a principal, agent and victim. See Doty v. State, 585 S.W.2d 726 (Tex.Cr.App.1979). However, this interpretation of the statute does not comport with the O’Bryan, supra, McManus, supra, and Duff-Smith, supra, decisions.

Therefore, to the extent that Doty, supra, requires there to be a “minimum” of three actors to constitute the capital offense of murder for remuneration, it is hereby overruled. See also Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977). Moreover, after the O’Bryan, supra, case was handed down in 1979, the Legislature met and considered the provisions of the capital murder statute without changing or amending the pertinent provision in the case at bar. In 1983, the Legislature considered the provisions which raise murder to a capital felony and amended § 19.03(a)(2), supra. In 1985, the Legislature again considered the provisions which raise murder to a capital felony and added § 19.03(a)(6), supra. But most significantly, after O’Bryan, supra, the Legislature has never considered amending § 19.03(a)(3), supra, to narrow the meaning of remuneration strictly to a murder-for-hire situation. A close reading of the statute compels the conclusion that § 19.03(a)(3), supra, be construed as follows: an individual commits a murder

(1) for remuneration or
(2) the promise of remuneration or
(3) employs another to commit the murder for remuneration or
(4) employs another to commit the murder for the promise of remuneration.

The statute is multi-faceted, by its very terms, including not only a killing performed for a principal by an agent, but also a murder by a principal with the expectation that he or she would gain from the benefits assessed on the death of the victim, or gain under the laws of probate or descent and distribution upon the death of the victim. Therefore, we interpret § 19.03(a)(3), supra, as inclusive of a murder for gain or profit4 where the actor’s *737unilateral conduct results in the death of the victim.

We hold, therefore, that a person commits a murder for remuneration as set out in § 19.03(a)(3) and (b), supra, where the actor kills a victim in order to receive a benefit or financial settlement paid upon the death of the victim, such as proceeds of insurance and retirement benefits as in the present case. Having held thus, we must now turn our attention to appellant’s remaining points of error not addressed on original submission.

In her third point of error, appellant contends the trial court erred in admitting evidence that she shot and killed a former husband, Doyle Wayne Barker. She specifically argues that the evidence was improperly admitted to rebut a defensive theory not raised by the defense, and claims further that such evidence, even if relevant, should have been suppressed since its probative value was outweighed by its prejudicial effect upon her trial. The State responds by arguing that the extraneous offense was properly admitted as evidence showing common planning and design, as well as to rebut a defensive identification issue. The State denies the allegation that the probative value of the evidence was outweighed by the prejudicial effect of the evidence on the capital jury.

The record reflects that Investigator Rose received information from a confidential source that the bodies of both Beets and Barker were buried at appellant’s residence, one within the flower planter or “wishing well” and the other beneath the storage shed on the property. Execution of a search warrant after appellant’s arrest resulted in the discovery of the bodies of the two men, both of whom suffered very similar fatal gunshot wounds and whose bodies had been disposed of by placing each corpse in a sleeping bag and hiding each body under a structure on the property.

By motion in limine appellant sought to suppress any mention of the discovery of Barker’s body or appellant’s alleged participation in his murder. Before trial began, the trial judge instructed the prosecutor not to mention the Barker incident and to instruct his witnesses not to mention the incident unless asked a question by (defense) counsel. The trial court specifically declined to rule on any “evidentiary” implications “until the time of trial.”

The sixth witness called during the State’s case-in-chief was Investigator Rose. Obeying the court’s instructions regarding the motion in limine, the State asked that the jury be excused before going into the extraneous matter. Outside the jury’s presence Rose testified that his confidential informant had told him two bodies were buried on the property. After hearing from both sides, the trial court sustained appellant’s motion “at this time” but stated the evidence might be admitted at a later point during trial. As appellant points out, the court’s rationale at this time was that the prejudicial effect of the extraneous murder would be too great.

After calling Robert Branson to the stand, the State called his sister, Shirley Stegner. She testified that appellant had confided her intent to shoot Beets and set his boat adrift one week before his disappearance and had confirmed the fact of the murder in subsequent conversations with Stegner. Outside the jury’s presence Steg-ner was then asked whether appellant had ever placed her in a similar position. She responded in the affirmative, relating how in October of 1981 appellant had confided her intent to kill Barker: “She said that she was going to wait until he went to sleep and then shoot him.” Two days later, appellant told Stegner that it was “all over” and Stegner helped appellant dispose of Barker’s body.

The State argued that the evidence of the extraneous offense was admissible to show “the design, the intent, the scheme that’s *738involved here and the defensive theory that was raised wherein Defense Counsel accused the witness, Robbie Branson, of doing the murder”. Defense counsel responded by saying, “I didn’t accuse Robby (sic) Branson of any murder on Wayne Barker. I’ve been very careful to limit that. Everything that’s been mentioned here has been mentioned as to Jimmy Don Beets.” After hearing both arguments, the trial judge first noted that he had previously reserved a final ruling on the motion, then ruled the evidence of the extraneous offense was admissible, based upon the testimony already elicited, as an exception to the rule against the admission of extraneous offenses. Appellant’s “exception” to the ruling was noted. When the jury was returned, Stegner testified to the facts stated supra. In addition, Investigator Rose was recalled to the stand and testified that the remains of Doyle Wayne Barker were unearthed from the back yard of appellant’s residence at the same time the body of Jimmy Don Beets was recovered from the front yard. Rose was also allowed to testify that both Shirley Stegner and Robert Branson had told him that appellant had killed Barker.

It is well established in the jurisprudence of this state that an accused person may not be tried for collateral offenses or for being a criminal generally. Parks v. State, 746 S.W.2d 738 (Tex.Cr.App.1987); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1984); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Evidence of extraneous offenses is by nature inherently prejudicial and carries the additional danger of forcing a criminal defendant to defend himself against an implied charge of having a propensity to commit crimes rather than the specific charge the State has brought against him. See Parks, supra; Williams, supra; Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App.1983); Bates v. State, 643 S.W.2d 939 (Tex.Cr.App.1982). There are, however, certain recognized exceptions to this general rule that extraneous offenses are never admissible at trial of an accused. See Albrecht, supra. This is because circumstances exist in a variety of fact situations which either mitigate the danger of such evidence or which justify admission of extraneous evidence in spite of the danger that this evidence will create unfair prejudice. Parks, supra; Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985); Albrecht, supra. Included in that non-exclusive list where evidence of an accused’s extraneous criminal conduct has been held admissible are situations where (1) the offense is admitted to show the context in which the criminal act occurred; (2) the extraneous offense circumstantially proves identity where the State lacks direct evidence of the perpetrator’s identity; (3) the offense goes to the issue of scienter, where the necessary mental state for a particular act cannot be inferred; (4) the offense shows the accused’s motive for his conduct, particularly where the charged offense is intertwined with the collateral act or is part of a continuing plan or scheme of criminal behavior; (5) the extraneous conduct shows malice, where malice is an element of proof and cannot be inferred from the charged criminal act; and (6) the offense is offered to refute a defensive theory raised by the accused. See Albrecht, supra.

As we have previously stated in Parks and Williams, both supra, although the list in Albrecht, supra, is an accurate statement of the law of evidence at this time, it was not meant to be an exhaustive or exclusive list of exceptions to the general rule regarding the admissibility of extraneous offenses. See also Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985). The true “test” of extraneous offense admissibility is a showing by the prosecution “both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.” Williams, supra, quoting from Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980) (concurring opinion). We shall, therefore, turn our attention to applying the Williams, supra, two-prong test to the facts of the instant case.

As appellant correctly points out in her brief, the jury in this case was instructed to consider the extraneous evidence regarding the murder, burial and subsequent exhumation of Barker’s remains for the *739limited purpose of proving the identity of Beets’s killer. Appellant argues that identity was never at issue, since the defense did not dispute that she was the person indicted or that she was present at the scene when Beets was shot. Appellant also contends that the only “defensive theory” presented was that she was being improperly tried for both murders since the indictment under which she was tried charged her only with the murder of Beets. We disagree on both counts.

The State’s theory of the case began and ended with circumstantial evidence going to prove that appellant planned the murder of her fifth husband in order to receive various monetary benefits, after which she proceeded to carry out that plan. Her “signature” in the crime was distinctive. She shot the deceased in the back of the head with a .38 calibre handgun while he was sleeping. She then enlisted the assistance of her son to help dispose of the body in a unique manner. On his own property, within a “wishing well” he had built for her, appellant buried the deceased after placing his body into a sleeping bag. In a macabre twist, she then set out flowers in the “planter.” In the next two years, appellant sold off personal property belonging to the deceased, tried to collect on fire insurance on one or two of the deceased’s rental properties, and hired an attorney who applied for various death benefits on her behalf after successfully having Beets declared legally dead.

The State offered the above evidence through the testimony of nineteen witnesses, including Robbie Branson and Shirley Stegner, two of appellant’s children. Bran-son’s testimony was especially damning to the defense effort, as he related how he was sent away from the trailer house by appellant after she told him she was going to kill Beets, then returned to help her drag the sleeping-bag-encased body of Beets around the house and bury him in the well. On cross-examination, the following occurred:

(Q) When is the first time you told anyone about this?
(A) About a year or so later.
(Q) Kept — it was really bugging you, wasn’t it?
(A) Yeah.
(Q) It was bugging you because you killed the man, that’s the reason it was bugging you, wasn’t it?
(A) No sir.
(Q) You killed him and you killed him with a handgun, didn’t you?
(A) No sir.
******
(Q) Had a bunch of them, haven’t you? This is the first time you ever killed a man?
(A) I've never killed anyone.
(Q) Yeah, you have ...

Appellant’s contention is simply without merit. From defense counsel’s cross-examination of the witness Robbie Branson, it is clear that the defensive theory was to place Branson’s finger upon the trigger of the murder weapon. By doing so, the defense directly contested a material issue in the case — the identity of the triggerperson in the charged crime. The indictment in this cause charged appellant with killing the deceased for remuneration; she was not charged with the companion offense under § 19.03(a)(3), supra, of hiring another to do the killing for her. It was therefore necessary for the State to prove that appellant was the triggerperson. To rebut the State’s theory, the defense introduced testimony demonstrating that another individual, Robbie Branson, had an equal or superi- or opportunity, motive and criminal background to commit the deed as did appellant; and that it was Branson who actually committed the murder. The State correctly pointed out these salient facts in arguing for admission of the extraneous offense. The record clearly reflects that appellant raised the issue of identification at trial. See Moore v. State, 700 S.W.2d 193 (Tex.Cr.App.1985). Identity being both a material and disputed issue in the case, we find that the circumstantial evidence regarding the killing of Barker made it more probable than not that appellant was the triggerper-son in the instant offense and, as such, it was relevant. See Williams, supra.

*740It remains to weigh the probative value of the evidence relating to Barker’s death against its inflammatory or prejudicial potential. In assessing this balance between the probative value of the extrinsic evidence versus its prejudicial effect, it is necessary to view the nature of the State’s case. Parks, supra. The State’s case consisted entirely of circumstantial evidence. Although both Branson and Stegner testified appellant voiced intent to kill Beets before the incident occurred and admitted the act after the fact, there was no eyewitness to the actual killing. The State’s case, therefore, depended on two members of appellant’s family, both of whom suffered problems of credibility due to rigorous cross-examination by counsel. Stegner was portrayed as a drunk and a dope addict with a propensity for violence, as evinced by an argument with her husband where she used a .357 magnum revolver to keep her husband away from her. Stegner also admitted her drinking sometimes led to periods of time in which she “blacked out.”

Robbie Branson, the acknowledged accomplice in disposing of the body, also had his credibility impugned on cross-examination. Branson admitted to a prior burglary conviction and was accused of passing stolen checks. He too had a part in the incident at the trailer house where Stegner discharged the .357 handgun. He admitted waiting over a year before saying anything about the murder. He also admitted to other incidents taking place while appellant and the deceased were on vacation immediately preceding the murder where he “hot-wired” the deceased’s boat and wrecked one of the deceased’s motorcycles. The record reflects that counsel for appellant rigorously called into question Branson’s motive for testifying and introduced into evidence before the jury sufficient circumstantial facts which brought the question of identity into issue. That the jury chose not to believe the defense version of facts surrounding the murder is of no consequence; the fact remains that an alternate theory was advanced for the fact-finder’s determination, a positive strategic move to combat the circumstantial evidence presented by the State to prove up the identity nexus between appellant and the triggerperson.

Even though the question of identity was disputed, the extraneous matter may still be inadmissible unless there are distinguishing characteristics common to both offenses such that the accused’s acts are earmarked as his handiwork; his “signature” must be apparent from a comparison of circumstances in both cases. See Collazo v. State, 623 S.W.2d 647 (Tex.Cr.App.1981); see also Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979); Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App.1978) (on rehearing); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974). The factors of remoteness and similarity are important, not in and of themselves, but only as they bear on the relevancy and probative value of the offered extraneous offenses. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985). In the case at bar, the “signature” is close to perfect. A similar and unique weapon with a barrel grooved with a “left-hand twist” was used in each shooting. The initial act of murder by means of multiple .38 caliber bullet wounds to the back of the head is the same. So too is the time of the killing, occurring late at night after the victim had retired for the evening and lay unguarded in sleep. The reason behind the murders appears to be the same, for pecuniary gain of which the actor would not otherwise be entitled.5 Comparison of the coverup activity in both cases is also instructive. The bodies of both men were enshrouded in sleeping bags and buried in the yard around appellant’s trailerhouse. Holes for the bodies had been previously excavated, ostensibly for a“bar-b-que pit” in the back yard and a “wishing-well planter” in the front yard. Innocuous-looking structures were placed over each gravesite and the yard was tended in a normal fashion by appellant. Taking all of the above facts into consideration, we find the State *741has shown the existence of sufficient common distinguishing characteristics between the extraneous and primary offenses to tip the balance in favor of admitting the extrinsic probative evidence going to the contested, material issue of identification. While admission of the evidence was inherently prejudicial due to the posture of the appellant, the same may be said of any such “signature” evidence which is probative of a crime for which a criminal defendant stands charged. Given the facts of the case before us, the fact that appellant raised an issue of identification during trial, and the high degree of similarity between offenses, the probative value of the extraneous evidence outweighs its prejudicial or inflammatory effect. See, e.g., Moore v. State, supra; Plante, supra; Dickey v. State, 646 S.W.2d 232 (Tex.Cr.App.1983); Ransom, supra. The evidence was properly admitted at trial. Albrecht, supra. Appellant’s third point of error is overruled.

In three related points of error, appellant challenges the refusal of the trial court to grant the defense motion for change of venue. Appellant claims in her fifth point of error “it was clear from the evidence presented at the hearing of (sic) the motion that such a prejudice existed against the defendant in the community that a fair trial was precluded.” Specifically, appellant argues that the trial court abused its discretion in refusing the motion since the State, after the defense had properly brought the motion and supported the motion with testimony, failed to “join the issue as there was no basis presented for its witnesses (sic) testimony but rather, bald assertions that a fair trial could be had.”

The record reflects that appellant’s counsel filed a pretrial motion for change of venue alleging appellant could not receive a fair trial in Henderson County due to “a dangerous combination” and “so great a prejudice” against appellant. The motion was supported by sworn compurgators Dardonelle Pickle and Linda Kraemer. See Art. 31.03, V.A.C.C.P. The State filed a controverting affidavit in accordance with Art. 31.04, V.A.C.C.P. The trial court held a hearing on the matter and witnesses for both parties testified. Eight witnesses were called by the defense and two were called by the State. Janice Yaklich, News Editor for the local newspaper, was the first witness called by the movant. Through her testimony counsel introduced into evidence stories and pictures from twelve daily editions of the local newspaper. The newswoman did not “know” if appellant could get a fair trial but could not think of any reason why appellant could not receive a fair trial in Henderson County. According to Yaklich, there was nothing in the articles which would prejudice or bias potential jurors. Having written most of stories herself, Yaklich testified that nothing in the stories indicated appellant was guilty of any offense, but simply said that she had been charged with the offense. She also stated that since the Beets story broke, there had been other, “larger” stories, and that it was the policy of the newspaper to cover all stories of local interest.

Evelyn Jobe also did not know whether appellant could get twelve fair jurors, but had not spoken to anyone who did think a fair hearing could be had. She could not serve as a fair and impartial juror but would not automatically vote on guilt. Her husband Thomas had the same opinion, testifying that if “people believes (sic) the paper,” he did not think appellant could get a fair trial. But he also was unwilling to state that he would himself vote for the death penalty, saying that he “would have to hear all — some more testimony besides that paper.” Nor did he know anyone else who would do so: he was “talking for (him)self” as far as finding twelve impartial jurors.

Ross Chambers, David Hilton, Bobby Miller and defense counsel’s son Earl Andrews, Jr. were all of the opinion that neither they nor anyone else could be fair jurors. All four testified they had spoken with many people about the case, Chambers, Hilton and Miller indicating they would vote “guilty” even though the news stories only indicated appellant had been arrested and charged, but not convicted of the offense. Andrews also related how he *742had discovered a story with accompanying sensational headline and photo on the cover of an edition of the Weekly World News, a tabloid sold at a local grocery store.

District Attorney Billy Bandy was the final witness called by the defense. Apparently called for the purpose of rebutting testimony as to the high profile of other criminal cases in relation to the instant case, Bandy to the contrary testified that other cases in which he had been involved had a higher profile.

The State called two witnesses at the hearing in response to the defense motion for venue change. Frank Sopuch was the affiant in the controverting affidavit filed by the State. Identified as the News Director for a local radio station, he testified as to the frequency of news reports regarding the discovery of the buried bodies, arrest of appellant and coverage of the case up to time of trial. He explained that a “major story” such as the Beets story would typically run in a spot in excess of thirty seconds. All stories initially put on the air would then be repeated five times within the following twenty-four hour period. In the instant case, stories were run three days in June, five days in July, two days in August and two days in September, for a total of sixty radio spots. Sopuch related that the news for the stories came from written information found in police reports, and stated that in his opinion, after talking with others, that there was not such widespread publicity so as to preclude appellant from receiving a fair trial. He had heard the case discussed at a local barber shop and at a cafe in Athens. When questioned whether he thought the news broadcast by rival stations would tend to bias listeners, Sopuch replied in the negative. In addition, he stated that he could be a fair and impartial juror in the case.

Gary Fulton was the last witness called. Fulton said he saw “no reason why (the jurors) couldn’t be selected here.” He did think that some of the stories were slanted: “[T]hey would say that — -not necessarily that she was guilty but the fact that she was arrested as a suspect.” Fulton could not “give a guarantee” that appellant could receive a fair trial, rather “the job would fall upon the attorneys to select people that could be fair and impartial in their judgment.” On final questioning by the State, he admitted reading Dallas and Tyler newspapers and having seen outside television accounts of the incident, and stated that he “couldn’t guarantee” appellant could receive a fair trial anywhere.

After hearing the above described testimony, the trial court overruled the motion, stating, “The Court, after hearing the evidence, cannot say that there exists such a prejudice in this county that the Defendant is unlikely to obtain a fair and impartial Jury.” Counsel’s “exception” was duly noted by the court.

The test to be applied in determining whether a venue motion should be granted is whether outside influences affecting the community climate of opinion as to a defendant are inherently suspect. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Faulder v. State, 745 S.W.2d 327 (Tex.Cr.App.1987); Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985); Nethery v. State, 692 S.W.2d 686 (Tex.Cr.App.1985); Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1983). See also Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979). Absent a showing by the defendant that there exists such prejudice in the community that the likelihood of obtaining a fair trial by an impartial jury is doubtful, however, the discretion of the trial court to deny such a motion will not be disturbed on appeal. See Phillips, supra; Nethery, supra; Ussery v. State, 651 S.W.2d 767 (Tex.Cr.App.1983); James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977).

Within this context, the question whether to grant a defendant’s request for a change of venue because of inflammatory or prejudicial publicity is one of constitutional dimension. Phillips, supra; Bell, supra. A change of venue is the remedy to jury prejudice resulting from widespread inflammatory news coverage and is available to assure an accused a fair trial when extensive news coverage has raised substantial doubts about obtaining *743an impartial jury. Phillips, supra; Henley v. State, 576 S.W.2d 66 (Tex.Cr.App.1978). However, an applicant seeking a change of venue bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial trial is doubtful. Nethery, supra. When one seeks to have venue changed on the ground of adverse pretrial publicity, he must ordinarily demonstrate an actual, identifiable prejudice attributable to that publicity on the part of members of his jury. See Faulder v. State, supra.

Moreover, simply because a particular criminal case or offense is publicized in the media does not give rise to a prima facie claim of prejudice so that a defendant is entitled to a change of venue. See Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977). As this Court has stated, “Clearly, ... [the] standard does not require that jurors be totally ignorant of the facts and issues.” Eckert v. State, 623 S.W.2d 359, 363 (Tex.Cr.App.1981). Rather, the publicity about the case must be pervasive, prejudicial and inflammatory. Phillips, supra; McManus v. State, supra; Demouchette v. State, 591 S.W.2d 488 (Tex.Cr.App.1979); Bell, supra.

Turning our attention to the case at bar, we disagree both with appellant’s argument that the evidence presented at the pretrial hearing demonstrated such prejudice in the community existed as to prevent a fair and impartial trial, and with her hypothesis that the State “must bring some testimony with some basis to join issue” on the venue question. The issues are properly joined in the usual case where the State files an affidavit or affidavits controverting the defendant’s initial pleadings requesting a change of venue. Where a controverting affidavit is not filed, the issue may still be joined, absent objection, by the State presenting testimony at a venue proceeding. In Lundstrom v. State, 742 S.W.2d 279 (Tex.Cr.App.1987), on the State’s motion for rehearing, we adopted the dissenting opinion written by Judge Campbell on original submission wherein he effectively rebutted the then-majority opinion regarding the proper form of a controverting affidavit. On his way to concluding that a common-sense approach must be used in determining whether the State has met its procedural obligation to controvert a defendant’s motion for change of venue, Judge Campbell set out the procedure this State has followed for one hundred years:

What I glean from all of these old cases is that the burden is on a defendant to file his motion for change of venue with supporting affidavits, and that the State must then either default by filing nothing, see Durrough v. State, 562 S.W.2d 488 (Tex.Crim.App.1978), or join issue by filing controverting affidavits to show that such prejudice does not exist. It may successfully controvert by means of a general denial of the ‘credibility’ or ‘means of knowledge’ of the defendant’s compurgators, or it may, as in the instant case, generally deny that there exists ‘so great a prejudice against’ the defendant or a ‘dangerous combination against’ the defendant so that ‘he cannot expect a fair trial.’ See generally, Art. 31.03, V.A.C.C.P.

Id at 286.

The proper procedure for joining issue with a motion for change of venue has been well settled for many decades. We therefore decline to reinterpret the applicable provisions of the venue statute.

We also cannot agree with appellant’s claim that the evidence presented at the pretrial hearing clearly demonstrated that such community prejudice existed so as to preclude appellant her due process rights to a fair trial. Of the eight witnesses questioned by the defense, three people said they had a preconceived opinion as to guilt and punishment. Other witnesses stated they had a preconceived notion but could still follow instructions. At least one witness for each party was of the opinion that a fair trial could be had by appellant.

As earlier stated, the test of community prejudice does not require that jurors be totally ignorant of the facts and issues of a case. Eckert, supra. Common sense, as well as the dictates of a modern technological society must allow some lee*744way for the rapid dissemination of information to the public. Neither party to a lawsuit is served by restricting jury service to the uninformed or uninterested. As the Supreme Court has stated, “scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.” Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Rather, the question to be asked is whether the publicity surrounding the case has permeated the community to such an extent that the prospective jurors’ initial opinions cannot be set aside. In the matter of pretrial or trial publicity, we must therefore direct our attention to the exhibits allegedly creating the intolerable atmosphere of prejudice. See Faulder, supra; Phillips, supra; Nethery, supra; Eckert, supra.

We have carefully examined the exhibits and record testimony at the pretrial hearing but do not find therefrom that appellant’s opportunity for a fair trial was caused to be “utterly corrupted by press coverage.” See Faulder, supra, at 338, paraphrasing Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The newspaper articles reflect fair and objective reporting. As several witnesses at the pretrial hearing admitted, the accounts factually cover the discovery of both bodies and the arrest of appellant, but do not speculate or factually assert facts as to the guilt of appellant. With one exception, the headlines of these articles are also factually objective. The one exception is found in the tabloid story entitled “Self-Made Widow.” While such a headline may be obvious in its non-objective sensationalism, appellant never showed that the headline corrupted otherwise objective reporting. The record only reflects that the tabloid was purchased by counsel’s son at a local grocery store. It was not shown that the tabloid was of local publication, nor was it proven in what quantities the tabloid had been sold in the area or to what extent the headline had “corrupted” future proceedings. We do note that the story itself is factually objective once one reads past the deceptive headline. We hold that appellant has failed to establish or demonstrate that the trial setting was inherently prejudicial. Faulder, supra. Appellant’s fifth point of error is overruled.

In her sixth point of error appellant contends that even if the trial court did not err in denying the motion for change of venue, “it was error for the trial court to conduct the voir dire in the manner that it did.” Specifically, appellant complains of questions and instructions given by the trial judge to the prospective jurors wherein the judge (1) admonished the prospective jurors not to hold an opinion as to the guilt or innocence of the defendant but to “keep an open mind and fully consider the evidence” if chosen to be on the panel; (2) instructed the venire members not to read any newspaper accounts, listen to any radio accounts, watch any television accounts of the case or discuss the case with anyone, including other jurors; (3) questioned prospective juror Finley whether he had either heard or read about the case; and (4) questioned each prospective juror who had either heard or read something about the case whether he or she had reached a conclusion as to the guilt or innocence of the defendant. Appellant contends that the “end result of this procedure is that the venire men (sic) have been encouraged to conceal whether or not they have an opinion as to guilt or innocence.” We do not agree.

A voir dire examination is for the purpose of enabling counsel to judge the demeanor of the panel and exercise the right to challenge or to peremptorily strike a prospective juror in an intelligent manner. See Emanus v. State, 526 S.W.2d 806 (Tex.Cr.App.1975). By statute, a trial judge is required to “propound to the entire panel of prospective jurors questions concerning the principals, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion.” Art. 35.17 V.A.C.C.P. (Emphasis supplied). Moreover, trial judges are not prohibited from intervening in examinations of a prospective juror; the court’s discretion will be abused only when a judge’s comments are reasonably calculated to benefit the State *745or prejudice the defendant. See Gardner v. State, 733 S.W.2d 195 (Tex.Cr.App.1987). Here, contrary to what appellant contends, the questions and admonishments by the trial court were worded in such a manner as to expose, not conceal, animus or bias on the part of the prospective jurors. Appellant does not point to any specific problem encountered or any juror she was forced to accept who might have suffered from “concealed” bias. Our examination of the entire voir dire proceeding demonstrates that the trial judge acted in accordance with Art. 35.17, supra, and that the questions and instructions given the prospective jurors were proper both in scope and content. Appellant’s sixth point of error is overruled.

In her seventh point of error, appellant contends the trial court erred in failing to grant a change of venue at the end of voir dire proceedings “as the evidence gleaned from the examination of the potential jurors further supported the claim of the defendant that a fair trial could be had in Henderson County.” Appellant does not refer this Court to specific responses given by individual venirepersons or even to any particular pages in the record which “further” support her claim of a “corrupted” atmosphere. Therefore, nothing is presented for review. Cuevas v. State, 742 S.W.2d 331 (Tex.Cr.App.1987). However, given the severity of the charge and sentence imposed, we have examined the record and find no merit in appellant’s claim. As stated ante, while it is true that the great majority of venirepersons acknowledged some familiarity with the case, we do not require or expect jurors who are wholly ignorant of the incident or the charge against a criminal defendant. Eckert, supra; Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975). Again, the test is whether outside influences affecting the community’s climate of opinion as to appellant are inherently suspect; was the climate of opinion “corrupted” so as to prevent appellant from receiving a fair and impartial trial? The articles at issue are “fair, accurate and designed for the purpose of informing the public of current events.” Phillips, supra, citing Bell, supra, at 810 and cases cited therein. Even conceding that there might have been extensive knowledge in the community of either the crime or the appellant, or both, this is not sufficient by itself to render the trial constitutionally unfair. See Faulder, supra. We will not presume unfairness of constitutional magnitude solely on the basis that the community was made aware of the facts of the case and the fact that appellant was being charged with the crime. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); see also Faulder, supra. The record reflects that although the prospective jurors may have read or heard facts or details of the case, each either stated that he or she would try the case strictly on the evidence placed before them according to the instructions of the court, see Phillips, supra; see also Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978); Adami, supra; or in the case of the few veniremen who stated they had developed a firm opinion on guilt or innocence, each was successfully challenged and excused. Appellant has not shown that outside influences corrupted the community’s climate of opinion nor has she shown that she was forced to take an objectionable juror. We are unconvinced that under the totality of circumstances she suffered a constitutional violation with respect to the pretrial publicity. Faulder, supra. See also Henley v. State, supra. The trial judge was within the limits of his discretion in denying the change of venue. Phillips, supra; Nethery, supra; Ussery, supra; James v. State, supra. Appellant’s seventh point of error is overruled.

In her eighth point of error, appellant contends the trial court erred in failing to grant her motion for mistrial “after testimony revealed that the witnesses had been discussing their testimony with each other during trial.” The defense brief points to a conversation between “accomplices” Robbie Branson and Shirley Stegner in the hallway outside the courtroom as proof of appellant’s two children “comparing their testimony” during trial. Appellant additionally points out that Art. 36.06, V.A.C. C.P., authorizes the court to forbid witness*746es from discussing their testimony during pendancy of the case. The State responds by contending that the record does not support appellant’s claim either that both witnesses are accomplices as a matter of law or that Branson and Stegner violated the rule against verbal intercourse by sworn witnesses.

As held ante, only Branson, not Stegner, is an accomplice as a matter of law. Nevertheless, both were sworn witnesses instructed by the trial court not to discuss the case or their testimony with any person other than trial counsel. See, generally, Clayton v. State, 652 S.W.2d 950 (Tex.Cr.App.1983). See also Art. 36.06, supra.

The record reflects that a hearing was held outside the jury’s presence after both Branson and Stegner had testified. On direct examination by defense counsel, Branson stated that he did not “recollect” whether he had talked with his sister about his testimony the previous day, but that it “possibly could have happened.” On cross examination he replied in the negative when asked if he had intentionally violated the trial court’s order.

Stegner was then recalled and stated that neither she nor Robbie had talked about their testimony, but that she “was making comment (sic) about the paper” and “I heard something about you (defense attorney) accused him of killing Jimmy Don.” Stegner denied that Branson had made the latter comment, saying “[W]e overheard comments.” However, she also did not “exactly know” from whom she heard the comments. Further questioning revealed that she “understood I wasn’t supposed to discuss the case but I didn’t know I was not supposed to discuss anything that was in the paper.” Stegner was adamant that she and her brother had not “talked face to face about anything.” To clear up any misunderstanding, the trial court instructed both witnesses not to talk with anyone, including family members.

The next morning defense counsel moved for a mistrial, and in support of the motion called Henderson County Chief Constable Benny Moore to the stand. Moore said that he had been in the hall outside the courtroom and had observed a group of people, including Stegner and Branson, talking. Moore overheard Branson making the statement, “While I was on the stand, he asked ...,” but the constable was unsure what Branson was speaking about, to whom he was addressing his comment, or the content of the remainder of the statement. The motion for mistrial was subsequently overruled.

It is undisputed that both witnesses were placed under the rule before trial began and were reminded of the court’s instructions not to discuss the case or their, testimony with others, or to read or listen to any such matters before being allowed to leave the stand. It is also clear from the testimony by Stegner and Branson at the hearing on appellant’s motion for mistrial that both persons did engage in some conversation regarding the case or at least newspaper articles reporting the case. In any event, there is evidence that both witnesses violated the rule. That fact alone, however, does not require a trial court to automatically grant a motion for mistrial, nor is this Court constrained to hold such error reversible without more. While the rule should be complied with, not every violation is reversible error. Hougham v. State, 659 S.W.2d 410 (Tex.Cr.App.1983). Indeed, it is both useful and necessary to examine the reason or purpose for the rule and analyze the violation in context of the circumstances of the case.

The purpose of the rule is “to prevent corroboration, contradiction, and the influencing of witnesses.” Ex Parte Robertson, 731 S.W.2d 564 (Tex.Cr.App.1987). The “influence” to be avoided is that between witnesses who testify subsequent to one another at trial. See Cook v. State, 30 Tex.App. 607, 18 S.W. 412 (1892).

In the instant case, appellant has failed to show how either Stegner or Bran-son thwarted the purpose for the rule or how she was harmed thereby. Both individuals had already testified and were not recalled for purposes of rebuttal or punishment. There was no evidence that either witness influenced the testimony of any other witness still waiting to be called to *747testify. Although we are told that Bran-son directed his comment toward a “group” of people, the record is devoid of any evidence that any of those comprising the group were also to be called to testify. Nor is there a shred of evidence to support appellant’s hypothesis on appeal regarding Stegner and Branson that “if these witnesses felt free to discuss this matter while under the rule, there is no limit as to what conspiratorial acts they may have committed before making their statements.” Enforcement of the rule is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion or injury to the defendant. See Green v. State, 682 S.W.2d 271 (Tex.Crim.App.1984); Hartsook v. State, 244 S.W.2d 830 (Tex.Crim.App.1952). Given the facts of this case, we hold that the trial court properly exercised discretion in refusing to grant the motion as there is no evidence that appellant was injured by a witness’s violation of the rule. See and compare Archer v. State, 703 S.W.2d 664 (Tex.Crim.App.1986). Appellant’s eighth point of error is overruled.

In appellant’s final point of error, she complains that the “prosecution’s actions in subpoenaing approximately 90 witnesses while using only 20 deprived defendant of her right to effective counsel.” As we interpret appellant's complaint, she is arguing that, because the State rested when it did, without calling each and every witness subpoenaed, she was forced to “spread the resources” to interview prospective witnesses and then was unfairly surprised, “preventing the defense from gathering and organizing its witnesses and argument.” According to her brief on appeal, the effect here was to “say that the Defendant has no right to discover the names of the prosecution’s witnesses.” We do not agree.

It is worthy of note that appellant neither cites this Court to any specific page in the record nor provides any authority for the propositions outlined above. See Cue-vas, supra. Moreover, our review of the record in this cause does not support the claims of ineffective assistance or denial of due process allegedly caused by improper State action. First, the record shows that a mistrial was requested on the basis of the violation of the rule, discussed ante, and not on the basis now argued. Second, even if we were to interpret counsel's actual request, to wit, “Your Honor, based upon the testimony presented here yesterday, the testimony presented here today, we’ll ask the Court to declare a mistrial” to include the specific claim now made, appellant has still failed to show why a mistrial should have been granted.

Upon proper motion to the court, witnesses should be disclosed to the defense if they will be used by the State at any stage of trial. See Young v. State, 547 S.W.2d 23 (Tex.Cr.App.1977). However, the State is generally not required to reveal names and addresses of witnesses other than those it intends to call to the stand. Hendricks v. State, 640 S.W.2d 932 (Tex.Cr.App.1982); see also Young, supra. And, while the better practice is for designation of all prospective witnesses who then later testify, it is within the discretion of the trial court to allow the testimony of a witness who has not been disclosed to the defense pursuant to discovery motion, subject to appellate review of the trial judge’s exercise of that discretion. See Hightower v. State, 629 S.W.2d 920 (Tex.Crim.App.1982); Haynes v. State, 627 S.W.2d 710 (Tex.Crim.App.1982); Lincoln v. State, 508 S.W.2d 635 (Tex.Crim.App.1974). A trial judge may also exercise discretion by limiting his order to certain witnesses, such as those to be called by the State during its case-in-chief. Elkins v. State, 543 S.W.2d 648 (Tex.Crim.App.1976); Green v. State, 510 S.W.2d 919 (Tex.Crim.App.1974).

The posture of the instant case is opposite that usually found in witness discovery situations. Appellant is not arguing that she was harmed by an undeclared witness’s appearance or testimony, but that she suffered due to the State’s action in providing more than the law requires. However, the record reflects that appellant’s Motion for Discovery specifically requested “a list of all witnesses the State plans to call.” (Emphasis supplied). The record also contains the prosecutor’s reason for resting *748his case when he did, that simply being because he felt the time was right. Finally, the record before us also documents the fact that defense counsel was to be given the time necessary before calling his first witness, and was assured that any or all of the witnesses under State subpoena who were not called by the State would remain available for the defense. Simply put, counsel requested and received the names and addresses of all witnesses the State may have wished to call in proving up a prima facie case against appellant. The State provided information potentially helpful to the defense. We will not judge by hindsight that which was done to accommodate the defense and to comply with the trial court’s order.

Appellant would apparently have this court require the State to call and examine each prospective witness listed and disclosed through discovery, or strictly limit the ability and strategy of the State to prosecute a criminal case by requiring the prosecution, in some fashion, to limit the number of prospective witnesses who may be called to the witness stand. That we cannot and will not do. We have not in the past presumed to require the State to anticipate each and every defensive strategy, post a list of witnesses, then preclude any flexibility in the trial process by absolutely disqualifying any potential witness whose name is not initially placed on that list. As the late Judge Douglas wrote for this court in Hoagland v. State, 494 S.W.2d 186 (Tex.Crim.App.1973), “To require the State to anticipate any possible defense of an accused and to furnish names of all possible witnesses and have the court refuse to permit them to testify if their names were not listed would be to require an impractical and undue burden.” Id at 188, 189. Similarly, the State should not be put to a higher burden where there is facial compliance with a valid trial court’s order and where there is no evidence of bad faith on the part of the State in compiling the list of prospective witnesses or a showing how an appellant was injured by the State action. Appellant’s final point of error is overruled.

The judgment is affirmed.

WHITE, J., concurs in the result.

. (a) a person commits an offense if he commits murder as defined under § 19.02(a)(1) of this code and:

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(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.

. We will follow the presentation of the facts of our previous opinion.

. To further bolster our decision, we held that the appellant’s expectation of remuneration arose from an "implicit” promise that Paula Cantrell would pay him out of insurance proceeds. But, while it may be argued that Mc-Manus does fall within the usual "murder for hire" cases because of that “implicit" promise, the McManus court relied first on that appellant's state of mind and expectation of reward. The evidence showed the gunman in fact stole the money from Cantrell’s purse on a subsequent occasion.

. Under our capital scheme, the murder “for gain or profit” is, of course, distinguished from other listed means of murder during the course of robbery or kidnapping for purposes of ransom. In the former case, the State has a heavy burden of demonstrating that the murder was *737performed for the reason of pecuniary gain, as was proven in O’Bryan v. State, supra. In the latter cases, the State must only show that an intentional killing took place "during the course of’ the underlying felony. It is apparent, therefore, that the nexus between a defendant who kills for pecuniary gain and his motive for that act is closer and of more importance than a defendant who intentionally kills during the course of other felonious conduct.

. Stegner testified that appellant told her she was going to kill Barker because Barker beat her, she “didn’t want him around anymore”, and she did not want to lose the trailerhouse which was in his name.