Final Meal:
Chicken fried steak, gravy, French fries, ketchup, salad, blue cheese dressing, iced tea with lemon, two sodas, rolls, and butter.

Final Words:
"First of all, I want to say God bless everyone here today. For many years I have done things my way, which caused a lot of pain to me, my family and many others. Today I have come to realize that for peace and happiness, one has to do things God's way. I want to thank my family for their support. I love you. I am taking you with me. You all stay strong. I love you. I also want to say thanks to the Chaplains who I have met through the years and who have brought me a long way. And I cherish you as my family and at this time . . . oh, Ken, my little son, I am coming to see you. Oh Lord, into your hands I commit my spirit. Thy will be done."

Internet Sources:

Texas Department of Criminal Justice - Executed Offenders (Allen Janecka)

Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN - Texas Attorney General Greg Abbott offers the following information on Allen Wayne Janecka, who is scheduled to be executed after 6 p.m. on Thursday, July 24, 2003.

On Nov. 4 1993, Allen Wayne Janecka was sentenced to die for the capital murder of 14-month-old Kevin Wanstrath, which occurred in Harris County on July 5, 1979. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On July 6, 1979, a neighbor discovered the corpses of John and Diana Wanstrath and their 14-month-old son Kevin. Each had been shot in the head. Although the police did not find a weapon on the premises, the medical examiner initially ruled that Diana had killed her husband and son, then committed suicide.

Disbelieving the suicide ruling, Officer Johnny Bonds of the Houston Police Department relentlessly pursued his own investigation of the deaths. Bonds' investigation soon focused on Diana's brother, Markham Duff-Smith, who stood to receive a substantial inheritance from his sister that originated from his mother's death. Over the next year-and-a-half, Bond uncovered evidence suggesting that Allen Wayne Janecka had accepted a contract from Walter Waldhauser, Jr., to kill the Wanstraths.

In late November 1980, Houston detective Dan McAnulty traveled to Georgia to investigate Janecka's involvement in the Wanstrath murders. While in Georgia, Janecka's girlfriend gave McAnulty a .22-caliber Colt revolver and a can of mace that Janecka had used in the Wanstrath killings. On Nov. 23, 1980, the police arrested Janecka in Houston on warrants for another homicide and arson of the Waldhauser residence. After his arrest, Janecka gave a largely-exculpatory statement.

On Nov. 28, 1980, Janecka overheard Detective McAnulty mention to another officer that he had been in Georgia. Janecka asked McAnulty how everyone in Georgia was doing. After McAnulty responded that everyone was fine, Janecka began to inquire about his investigation in Georgia. After McAnulty informed Janecka that he had received the murder weapon from Janecka's girlfriend, Janecka asked to speak with him about the Wanstrath murders. When McAnulty told Janecka that he had not contacted his attorney, Janecka replied that he did not want his attorney present. Janecka proceeded to confess to the murders. He signed a written statement on Nov. 29, 1980.

Janecka stated that in early 1979, Waldhauser had contacted him about killing a family. Janecka and Waldhauser had participated in the killing of Duff-Smith's mother in 1975. After learning that they would be paid $30,000 for killing the family, Janecka agreed. On the day of the murders, Janecka and Waldhauser went to the Wanstrath home, driving a rental car with stolen license plates. The Wanstraths allowed them to enter the house supposing that they were architects. At an arranged signal, Waldhauser sprayed Diana with mace. Janecka used the .22-caliber revolver to shoot both John and Diana. Janecka then entered the nursery and took "care of the little one," shooting 14-month-old Kevin in the head. After leaving the house, Waldhauser told Janecka to destroy the revolver, but Janecka kept it. Over the next several months, Waldhauser gave Janecka several thousand dollars.

After the police recovered the murder weapon from Janecka's girlfriend, the medical examiner finally ruled the deaths to be the result of murder. Based on the confessions, the gun, and other evidence, the State indicted Janecka in the murder of Kevin for remuneration.

PROCEDURAL HISTORY

Nov. 23, 1980 -- Janecka was arrested for unrelated offenses in Harris County.

Nov. 28-29, 1980 -- In series of oral and written statements, Janecka confessed to the murders of the Wanstrath family.

Dec. 11, 1980 -- Janecka was indicted for the capital murder of Kevin Wanstrath for remuneration.

April 8, 1981 -- Janecka was convicted of capital murder and sentenced to death.

April 11, 1984 -- Janecka confessed during an interview with an independent film maker while on death row.

Oct. 7, 1987 -- The conviction was affirmed by the Texas Court of Criminal Appeals.

Jan. 31, 1990 -- The conviction was reversed based on error in the indictment.

Sept. 3, 1992 -- Janecka was reindicted for capital murder.

Oct. 28, 1993 -- Janecka was again found guilty of capital murder.

Nov. 4, 1993 -- Janecka was sentenced to death again.

Nov. 27, 1996 -- The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal.

Oct. 6, 1997 -- The United States Supreme Court denied certiorari review.

Oct. 20, 1999 -- The Texas Court of Criminal Appeals denied Janecka's application for state habeas relief.

June 12, 2000 -- The United States Supreme Court denied certiorari review.

Aug. 31, 2001 -- The U.S. District Court for the Southern District of Texas denied Janecka's habeas writ.

Aug. 1, 2002 -- The Fifth Circuit Court of Appeals denied certificate of appealability.

Feb. 24, 2003 -- The United States Supreme Court denied certiorari review.

April 3, 2003 -- Janecka's execution was scheduled for July 24, 2003, by order of the state trial court, the Honorable Joan Campbell, Presiding Judge 248th District Court.

PRIOR CRIMINAL HISTORY

In 1975, four years before the murders of Markham Duff-Smith's sister, brother-in-law and 14-month-old nephew, Duff-Smith hired Janecka to murder Duff-Smith's mother, Gertrude Zabolio. Janecka broke into Zabolio's River Oaks home and strangled her with a pair of nylon stockings.

ProDeathPenalty.com

Markham Duff-Smith, a 46-year-old insurance broker whose voracious thirst for the lavish lifestyle led to the murders of his wealthy mother, sister, brother-in-law and 14-month-old nephew, was executed on June 29, 1993. Duff-Smith was sentenced to die for his role in a complex scheme to have his adoptive mother, Gertrude Duff-Smith Zabolio, murdered so he could collect an estimated $100,000 from her estate. Duff-Smith paid Allen Janecka $10,000 to kill Zabolio. Four years after the murder of Zabolio, after Duff-Smith spent the inheritance and after the Wanstraths turned up dead, a determined Houston detective, Johnny Bonds, refused to accept the medical examiner’s ruling of a murder-suicide in the Wanstrath death. He pursued the case for another year before discovering the threads that led to the intricate web that snared Waldhauser, then Janecka and MacDonald and finally Duff-Smith. Janecka has been sentenced to death for the murder for remuneration of fourteen-month-old Kevin Wanstrath.

Kevin and his parents, Diana and John Wanstrath, were found dead in their home on July 6, 1979 by a neighbor--all died of gunshot wounds to the head. The coroner initially ruled that Diana murdered her husband and son before committing suicide, but no gun was found at the crime scene. Officer Johnny Bonds of the Houston Police Department continued to investigate the case for the next year-and-a-half, focusing on Diana's brother, Markham Duff-Smith, who stood to gain a substantial inheritance upon the family's death. During his investigation, Officer Bonds uncovered evidence suggesting that Duff-Smith hired Walt Waldhauser to murder the family, and that Waldhauser in turn hired Janecka to commit the murders.

In July 1980, Janecka left Texas and moved to Georgia to live with his girlfriend, Karen Holder, and her mother. A few months later, Houston Detective Dan McAnulty traveled to Georgia in order to locate Janecka. Unable to locate Janecka, Detective McAnulty spoke with Holder instead, who was then living with her father. Holder had moved from her mother's to her father's home after Janecka left Georgia. At some point during their conversation, Holder turned over to Detective McAnulty Janecka's .22 caliber pistol and a can of mace, both of which were used in the Wanstrath murders.

Around the same time Detective McAnulty was in Georgia, Janecka was arrested in Texas on warrants for another homicide and for arson. Thereafter, while returning to his cell from a canceled line-up, Janecka overheard Detective McAnulty mention to another officer that he had been in Georgia. Janecka asked Detective McAnulty how everyone in Georgia was doing. Detective McAnulty responded that everyone was fine. Janecka then began asking questions about his investigation in Georgia. Detective McAnulty told him that he believed he had found the gun and a can of mace used in the murders. During the next twenty-four hours, Janecka made three statements confessing to the murder of Kevin Wanstrath. Janecka also told police that he only participated in the Wanstrath murders because he was afraid that Waldhauser, who Janecka claims had mafia connections, would have killed him if he did not do so. Based on the testimony of several witnesses, the murder weapon, and Janecka's incriminating statements, a jury convicted Janecka in 1993 of the murder for remuneration of Kevin Wanstrath and sentenced him to death.

UPDATE: You hear a lot about how people commit crimes because of their childhood," said Johnny Bonds, a former Houston Police Department detective. "But Michael Lee Davis -- he just loves being a criminal." Bonds has spent most of the past quarter-century tracking Davis, and helped to put him behind bars in the '80s for arranging the murder of four people in exchange for a slice of their life-insurance payoff. But incarceration didn't make Davis wary of entering the viatical business in Dallas in the '90s with two other convicted felons. Now the 46-year-old stands accused of masterminding a tangled scheme in which HIV positive men were paid to falsify applications for insurance policies eventually sold to investors. Tipped to a warrant for his arrest, Davis fled in June of 1999 to parts unknown. Feds joined the probe of his alleged misdealings involving companies in several states. Then, in the early morning hours of September 22, 1999, Davis walked into the Dallas County Sheriff's Department with his lawyer and gave himself up. The story of one of Houston's most infamous criminals begins in 1975, when Davis was still known as Walter Waldhauser Jr. and a woman named Trudy Zabolio was found hanged by her pantyhose. Four years later, John and Diane Wanstrath (Zabolio's daughter) and their 14-month-old son were all discovered shot in the head. An investigation revealed that Zabolio's son, Markham Duff-Smith, had in fact arranged all the deaths, and that Waldhauser had put him in touch with the hitman, Allen Janecka. All three men were convicted in 1981; Duff-Smith was executed in 1993, and Janecka is still on death row. Waldhauser avoided lethal injection by pleading guilty to three counts of murder. After serving less than 10 years of his 30-year sentence, he was paroled and legally changed his name to Michael Lee Davis.

Texas Execution Information Center by David Carson.

Allen Wayne Janecka, 53, was executed by lethal injection on 24 July 2003 in Huntsville, Texas for the murder-for-hire of a couple and their baby.

On 6 July 1979, the bodies of John Wanstrath, 35, his wife, Diana, 36, and their 14-month-old son, Kevin, were discovered in their home. A neighbor discovered the bodies. Each of the Wanstraths had been shot in the head with a .22-caliber weapon. Even though police did not find a gun in the home, the Harris County medical examiner ruled that Diana Wanstrath had killed her husband and son, then committed suicide.

The Wanstrath's estate was worth about $800,000. Diana had inherited much of this wealth when her mother, Gertrude Duff-Smith Zabolio, died. Zabolio was found dead in her home in 1975, strangled with panty hose. Her death was also classified as a suicide.

Disbelieving the suicide ruling, Officer Johnny Bonds of the Houston police department led an investigation into the Wanstraths' deaths. His investigation focused on Markham Duff-Smith, Zabolio's adopted son. Duff-Smith gained a substantial inheritance from his mother's death and stood to gain even more from the death of his adoptive sister and her family. Through an investigation that lasted a year and a half, Bonds uncovered evidence that Duff-Smith hired Walter Waldhauser to kill his mother, his sister, and his sister's family and that Waldhauser, in turn, hired Janecka (pronounced ya-NEZH-ka).

In November 1980, a Houston detective traveled to Georgia, where Janecka's girlfriend turned over a can of Mace and a .22-caliber revolver. Janecka was arrested for unrelated offenses, and while in custody, he overheard the detective talking about his trip to Georgia. Janecka then confessed. According to Janecka, he and Waldhauser went to the Wanstrath's home. They posed as architects who had a home building project to discuss, and they brought a bottle of champagne. After sharing the champagne with the unsuspecting couple, Waldhauser sprayed Diana with Mace. Janecka then shot John and Diana. He then entered the nursery and "took care of the little one," shooting Kevin in the head. After leaving the house, Waldhauser told Janecka to destroy the gun, but instead he kept it. Waldhauser paid Janecka "several thousand dollars."

According to Bonds' investigation, Janecka was working for a Houston bail bond office in exchange for the company's having posted bond for him in a burglary case. When Waldhauser called a friend of his who worked there and asked, somewhat jokingly, if he knew anyone who would work as a hit man, Janecka volunteered.

In addition to Janecka's confession, the jury also heard testimony that a few days after the killings, Janecka was drinking with some friends when he pointed out a newspaper article about the killings. He declared that he and Waldhauser were responsible, then wept for hours, according to testimony. Janecka told investigators that he agreed to carry out the killings for a few thousand dollars because he feared that Waldhauser and Duff-Smith were with the Mafia and would kill him otherwise. A ballistics expert testified that the revolver recovered from Janecka's girlfriend was positively the weapon that fired the bullet that killed Kevin Wanstrath.

Janecka was a habitual felony offender. He served 6 months of a 2-year sentence for burglary in 1972-73. In 1974, he served another 7 weeks in prison for violating the terms of his parole. In August 1976, he was sentenced to 5 years for another burglary conviction. He was released in just under 2 years.

A jury convicted Janecka of the capital murder of Kevin Wanstrath in April 1981 and sentenced him to death. The conviction was originally affirmed by the Texas Court of Criminal Appeals in October 1987, but upon rehearing, in January 1990, the Court overturned the conviction because the indictment against Janecka did not identify Waldhauser as the person who hired him. The court agreed with the defense's claim that this omission prevented them from preparing the best case with which to defend their client. A new indictment was issued, and Janecka was retried. In October 1993, a jury again found him guilty and sentenced him to death. The Court of Criminal Appeals affirmed this verdict and sentence in November 1996. All of Janecka's subsequent appeals in state and federal court were denied.

Markham Duff-Smith was convicted in 1981 of the capital murder of his adoptive mother, Gertrude Duff-Smith Zabolio. He was not prosecuted in the Wanstrath case. He was executed on 9 June 1993. Duff-Smith denied having any involvement in either case right up to the moment of his execution, when, surprisingly, he confessed to both crimes in his last statement.

Walter Alfred Waldhauser Jr. pleaded guilty to three counts of murder in the Wanstrath case and was sentenced to 30 years in prison. He was released in February 1990, after serving 8 years of his sentence. According to a news article, he is currently serving a life sentence for an unrelated crime under the name Michael E. Davis.

While on death row, Janecka declined to be interviewed by news reporters, but he did allow himself to be interviewed for a German documentary film. In the film, he unemotionally described the killings. This confession was shown to a jury at his 1993 sentencing hearing.

"For many years, I have done things my way, which caused a lot of pain to me, my family, and many others," Janecka said in his last statement. Janecka thanked his family and the prison chaplains for their support and wished God's blessings upon them. "Ken, my little son, I am coming to see you," he continued. "Oh Lord, into your hands I commit my spirit. Thy will be done." He was pronounced dead at 6:21 p.m.

With Janecka's execution, there remain fourteen prisoners under death sentences in Texas for murders committed in the 1970s.

Houston Chronicle

July 24, 2003, 10:27PM "Hit Man Who Killed Toddler in Inheritance Plot Executed," by Alan Bernstein. (July 24, 2003)

HUNTSVILLE -- Remorseful and prayerful in the waning seconds of his life, Allen Wayne Janecka was executed Thursday for the 1979 murder of a 14-month-old boy in an inheritance scheme that shocked Houston and fooled medical examiners. "For many years I have done things my way, which has caused a lot of pain to me, my family and many others," Janecka said as he lay on the death chamber gurney. "Today I have come to realize that for peace and happiness, one has to do things God's way." He exhaled deeply three times as the lethal injection took effect. He was pronounced dead 16 minutes later.

Janecka, who spent 22 years on death row, was the 20th prisoner put to death in Texas this year. He was the second inmate executed in connection with the slayings of Houston toddler Kevin Wanstrath and his parents, Diana and John Wanstrath.

Markham Duff-Smith, Diana Wanstrath's brother, was executed in 1993, moments after admitting for the first time to a role in those killings and the 1975 slaying of his mother, Gertrude Duff-Smith Zabolio. Recruited by a middle man, Janecka was the "hit man" who erased Duff-Smith's four immediate family members in return for a few thousand dollars, according to testimony. The scheme was designed for Duff-Smith, an investor, to inherit the bulk of his family's $800,000 estate.

In contrast to Duff-Smith, Janecka confessed multiple times in the past two decades, once telling police that he "took care of the little one." The boy was shot in the head while surrounded by stuffed animals in his crib. The Harris County medical examiner's office concluded that Diana Wanstrath had shot her husband and only child with a pistol, then killed herself, although no gun was found in the Wanstrath home. The agency also had issued a suicide ruling years earlier in Zabolio's death.

Skeptical of the rulings, Houston police homicide detective Johnny Bonds pieced together evidence pointing to Duff-Smith as the mastermind. Bonds' work became the focus of a book, The Cop Who Wouldn't Quit. Bonds, now a Harris County district attorney's investigator, witnessed the execution Thursday, the first one he had seen, at the invitation of a distant relative of the Wanstraths. "Relief," Bonds said, describing his thoughts as he left the death house at the Walls prison unit. "Twenty-four years waiting for this to happen. I'm glad it's over."

Janecka's sister, Valerie, and brother, Kevin, along with friends and spiritual advisers, witnessed the execution and had no comment afterward. Janecka, who thanked prison chaplains in his last remarks, considered the execution his release from prison, said prison spokesman Larry Fitzgerald, who had spoken with him earlier. Soon after the witnesses arrived, Janecka nodded assuredly at his relatives and friends. "God bless everyone here today," he said. Quoting the words of Jesus on the cross, he said, "Oh, Lord, into your hands I commend my spirit," then added, "Thy will be done."

Janecka, a former choirboy and high school athlete from Weimar, was convicted of capital murder and sentenced to death in 1981. A state appeals court threw out the conviction several years later, saying Janecka's indictment should have named Walter Waldhauser Jr. as the person who hired him to kill. That would have allowed Janecka's lawyers to take a different approach to evidence about Waldhauser, the court said.

Janecka was convicted and sentenced to death in his 1993 retrial, during which his lawyers suggested that Waldhauser had fired the bullet that killed the Wanstrath child. Waldhauser plea-bargained for a 30-year sentence. He was paroled after nine years, changed his name to Michael Davis and now is serving a lengthy sentence for an unrelated theft conviction.

In Janecka's last round of appeals, his lawyer said evidence from the .22-caliber bullet that killed Kevin Wanstrath may have been botched before the retrial by the Houston Police Department crime lab, whose mistakes in other cases mushroomed into a scandal this year. Defense lawyer Richard Ellis argued that, regardless of Janecka's confessions, the execution should have been postponed pending tests to show whether mistakes were made on ballistics evidence. Like previous defense lawyers, Ellis left open the possibility that Waldhauser was the real killer. The final appeals were rejected as late as midday Thursday, when the U.S. Supreme Court refused to block the execution.

The lawyer also sought clemency from the state Board of Pardons and Paroles, citing Janecka's record of good behavior behind bars. He was said to have rededicated himself to Catholicism. Family members asked the jury for mercy in his 1993 trial, saying Janecka had been abused by his father. He previously had been convicted of burglary.

Also present at the execution were two relatives of Keith Farmer, killed in a 1970s confrontation over a drug deal. Though never charged in the case, Janecka was part of a scheme to rob Farmer, Bonds said.

A few hours before his execution, Janecka amiably offered a correction to a Sunday article in the Houston Chronicle. Based on one of the newspaper's reports that documented his relatives' testimony in the 1993 trial, the article stated that Janecka was named "Mr. Football" in high school. But Fitzgerald said Janecka told him his correct title was "Mr. Baseball" and that the true winner of the football title more than 30 years ago might be upset at the discrepancy.

TheDeathouse.Com

"Contract Killer Executed in Texas." (July 24, 2003)

Huntsville, Tex. - A man who fired a bullet through the head of a 14-month-old boy as part of a contract killing of the child and his parents was executed by lethal injection Thursday at the Walls Unit of the state prison system here. Allen Janecka, 53, became the second condemned killer in as many days to be taken to the death house for a lethal injection. He also became the 20th condemned killer put to death in Texas in 2003 - tops in the nation.

"For many years I have done things my way, which has caused a lot of pain to me, my family and many others," Janecka said in his last statement. "Today, I have come to realize that for peace and happiness, one has to do things God's way."

But the Texas way of taking care of Janecka was to begin a lethal injection at 6:14 p.m. He was pronounced dead at 6:21 p.m. Several members of Janecka's family, including his sister - who is a nun - and brother were on hand to watch him die. He requested a last meal that included chicken fried steak and gravy, french fries, buttered rolls and iced tea.

Janecka fired a bullet into the head of Kevin Wanstrath as the child slept in his crib. Before that, Janecka killed the child's parents, John and Diana Wanstrath. The murders occurred in 1979. Janecka had committed the murders on behalf of Markum Duff-Smith, the brother of Diana Wanstrath. Duff-Smith wanted family members eliminated so he could collect an $800,000 family inheritance, prosecutors said.

Duff-Smith was later convicted of killing his adoptive mother and executed in 1993. In actuality, it was Janecka who killed Gertrude Duff-Smith Zabolio in her Houston home in 1975, prosecutors said.

On October 15, 1975, she was found murdered in her home. According to the prosecutors, Duff-Smith solicited Walter Waldhauser to kill Gertrude and his stepfather, Dow Zabolio. Waldhauser in turn solicited Paul MacDonald, a bail bondsman, who hired Janecka. Janecka, the brother of a nun and former choir boy, killed Gertrude Zabolio by strangling her with panty hose and left two fake suicide notes. Waldhauser was later sentenced to life in prison.

National Coalition to Abolish the Death Penalty

Allen Janecka (TX) - July 24, 2003

The state of Texas is scheduled to execute Allen Janecka, a white man, July 24 for the murder of 14-month-old Kevin Wanstrath in Houston. Janecka confessed to shooting the infant and his parents, John and Diana Wanstrath, as part of a murder-for-hire killing in 1979. He claimed he committed the murders because he feared the mafia would kill him if he refused.

A Harris County jury convicted Janecka of capital murder in 1981 and sentenced him to death. However, the Texas Court of Criminal Appeals overturned his conviction in 1987 on account of an error in the state’s indictment. A second jury convicted him again in 1993, and re-sentenced him to death.

Janecka’s pending execution clearly displays the arbitrary nature of the Texas death penalty system. Four people were charged in connection with the Wanstrath murder; two of them have since been released on parole and the third was executed in 1993. Walt Waldhauser, who solicited Janecka for the killing, spent less than nine years in prison.

On appeal, Janecka argued that police investigators conducted an unlawful search in obtaining evidence critical to the conviction. He claimed the admission of the murder weapon and a can of mace used during the crime violated his Fourth Amendment rights. He also objected to the admission of his videotaped confession. However, since receiving his second death sentence in 1993, his appeals have been rejected in both state and federal courts.

Harris County, the leading death penalty jurisdiction in the United States, is responsible for 70 of the 858 executions to date since the reinstatement of capital punishment in 1976. Harris County alone would rank third in a listing of states, behind only Virginia and of course, Texas. Please contact Gov. Rick Perry and request a commutation of Allen Janecka’s death sentence.

Death Penalty News (Rick Halperin)

June 2000 - TEXAS:

A convicted hit man claims the state destroyed evidence that would have kept him off death row by executing the mastermind of a series of famous murders.

But the Texas Attorney General's Office said attorneys for Markham Duff-Smith, executed by injection 7 years ago, never said the convicted killer would testify on behalf of Allen Wayne Janecka, only that he might.

Janecka is the latest death row inmate to ask a federal judge to void his 1993 capital murder conviction amid mounting controversy about the state's use of the death penalty. Janecka was convicted of killing 14-month-old Kevin Wanstrath in 1979 as the child slept in his crib.

He maintains in court documents that Duff-Smith, who paid for the killings of 4 family members, swore in an affidavit that Janecka was not paid to kill the child.

But the pleadings go on to say that if Janecka did commit murder for hire, he did it under duress believing he was working for members of the Mafia. In a response filed last week, the state's attorneys argue Janecka does not deserve a 3rd trial. They contend Duff-Smith did not possess information that was not available elsewhere. They also say Duff-Smith's attorney said only that his client might testify, and never asserted that Duff-Smith would waive his Fifth Amendment privilege at trial.

In fact, they note Duff-Smith repeatedly cited his Fifth Amendment privilege against self incrimination when Janecka's attorneys tried to depose him before Janecka's second trial.

Duff-Smith was executed in 1993 just weeks before Janecka's trial. He had agreed to testify in Janecka's behalf, but state District Judge Bob Burdette refused to postpone Duff-Smith's June 29, 1993, execution. Minutes before his execution, Duff-Smith admitted responsibility for the 1975 murder of his mother and the 1979 murders of his sister, brother-in-law and nephew. The murders made Duff-Smith the sole heir to the family's fortune.

John and Diana Wanstrath and their infant son were found dead in their southwest Houston home on July 6, 1979. Initially, the medical examiner ruled that Diana Wanstrath killed her husband and son, then killed herself. Four years earlier, Diana Wanstrath's mother, Gertrude Zabolio, was found strangled in her home. Her death initially was ruled a suicide, but it was later determined that someone killed her.

Prosecutors maintained Janecka was hired by a middleman to kill the family. He first was convicted of killing the Wanstrath's son in 1981, but that conviction was overturned because the indictment did not name the person who paid Janecka.

Walter Waldhauser Jr. hired Janecka to commit the slayings and allegedly was present when the Wanstraths were killed. He entered into a plea agreement with prosecutors and served 9 years of a 30-year sentence. When he was released, he moved to Dallas and changed his name to Michael Davis.

Janecka also cited ineffective assistance of counsel and other claims in his motion for a new trial. Such claims are commonly made, but rarely proven.

U.S. District Judge Lynn Hughes will issue a ruling in the matter at a later date.

(source: Houston Chronicle)

Janecka v. State, 739 S.W.3d 813 (Tex.Crim.App. 1987) (Direct Appeal)

Defendant was convicted in the 248th Judicial District Court, Harris County, Jimmy James, J., of capital murder, and he appealed. The Court of Criminal Appeals held that: (1) failure of indictment to name person providing remuneration for murder was error; (2) arrest of defendant pursuant to murder warrant, which was later found to be defective, was justified as arresting officer had valid arson warrant in his pocket at time of arrest, even though he did not execute it; (3) affidavit supporting arson arrest warrant provided sufficient probable cause for issuance of warrant; (4) reinterrogation of defendant did not violate defendant's constitutional rights; (5) trial court properly limited defendant's cross-examination of cooperating witness; (6) trial court properly refused to excuse prospective juror based on defense contention that he was unable to consider full range of punishment; and (7) statute which requires capital defendants to exercise peremptory challenges after examining each individual prospective juror does not violate equal protection or due process. On motion for rehearing, the Court of Criminal Appeals, Duncan, J., held that remand was required to provide defendant opportunity to demonstrate harm as a result of trial court's failure to quash indictment based on failure to include name of person providing remuneration. Remanded. McCormick, J., concurred in result in part on original submission. Clinton, J., dissented in part on original submission. Teague, J., dissented on original submission and filed opinion. Duncan, J., dissented on original submission and filed an opinion in which Onion, P.J., joined. Clinton, J., on rehearing, would grant ground for rehearing No. 2. Teague, J., on rehearing, without qualification or limitation voted to grant in all things motion for rehearing, but did not object to what majority ordered.

PER CURIAM.
Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty, the jury returned affirmative findings to the first two special issues under Art. 37. 071(b), V.A.C.C.P Punishment was assessed at death. We will affirm.

Appellant was convicted of intentionally and knowingly causing the death of Kevin Wanstrath "on or about July 5, 1979" by shooting him with a gun, "and the Defendant committed the murder for remuneration and the promise of remuneration, namely, money."

In his first point of error, appellant complains that the trial court erred in overruling his motion to quash the indictment. The motion stated in pertinent part: "The indictment is likewise insufficient and defective since it fails to allege the person that allegedly provided the remuneration for the alleged crime ... The failure to name the person providing the remuneration ... leaves the Defendant without proper notice and leaves him unable to properly defend himself on these charges."

* * * *

Appellant's motion for rehearing is granted on ground for rehearing No. 1 but only insofar as appellant shall be given an opportunity to demonstrate harm as a result of the trial court's error in overruling the motion to quash. The trial court shall hold a hearing to allow appellant to more fully develop his allegation of harm. The record of such proceedings shall be forwarded to this Court within 120 days of the date of this opinion. Appellant's remaining grounds for rehearing are denied. The appeal is abated and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Janecka v. State, 937 S.W.3d 456 (Tex.Crim.App. 1996) (Direct Appeal after Retrial).

Defendant was convicted in the 248th Judicial District Court, Harris County, Woody Densen, J., of capital murder, and he appealed. The Court of Criminal Appeals, 739 S.W.2d 813 initially affirmed decision, but on rehearing remanded. On state's motion for rehearing, the Court of Criminal Appeals, Overstreet, J., 823 S.W.2d 232, reversed and remanded. After remand, defendant was again convicted in the 248th Judicial District Court, Harris County, Woody Densen, J., of capital murder and he was sentenced to death. Defendant appealed. The Court of Criminal Appeals held that: (1) retroactive application of court-made change in law did not violate defendant's due process rights; (2) evidence was sufficient to support jury's finding that defendant would constitute continuing threat to society; (3) defendant's arrest pursuant to warrant was valid; (4) defendant's confessions to murder were not obtained in violation of his Sixth Amendment right to counsel; (5) confession that defendant made in videotaped interview with documentary producer was not involuntary; (6) defendant was not entitled to motion to change venue on grounds of prejudicial pretrial publicity; (7) by failing to exhaust his peremptory challenges, defendant did not preserve his objections to court's limitation of his voir dire examination of 16 venire members for review; (8) defendant was not entitled to jury instruction regarding voluntariness of confession to murder; (9) defendant was not entitled to submit issue of whether witness was his common-law wife to jury; and (10) portion of testimony from sitting county criminal district court judge was admissible and portion was admitted in error but this error was not reversible. Affirmed. Baird, J., filed concurring and dissenting opinion. Overstreet, J., filed dissenting opinion.

PER CURIAM.
In October 1993 appellant was retried and convicted under Texas Penal Code § 19.03(a)(3) of the 1979 murder for remuneration of a fourteen-month-old infant. The jury affirmatively answered the two special issues submitted under Article 37.0711 § 3(b)(1) & (2) and negatively answered the mitigation special issue submitted under 37.0711 § 3(e). Appellant was sentenced to death as mandated by Article 37.0711 § 3(g). Article 37.0711 § 3(j) provides for direct appeal to this Court. We affirm. Appellant was previously tried and convicted for the same offense and sentenced to death; on appeal the conviction and sentence were reversed and the cause remanded for retrial.

A brief account of the investigation and prosecution of this case is helpful to understanding some of appellant's arguments. On the morning of July 6, 1979, the corpses of the Wanstrath family were discovered. John and Diana Wanstrath lay dead in their den. Their son, Kevin, was dead in his crib. Each had been shot in the head. Over the protests of the Wanstraths' friends, the Harris County Medical Examiner's Office declared the deaths a double-murder suicide. The Medical Examiner concluded that Diana Wanstrath had killed her husband, her son, and then herself. That the murder weapon was not found did not dissuade the Medical Examiner's Office from the suicide theory. [FN3] Officer Johnny Bonds of the Houston Police Department rejected the suicide theory and pursued his own investigation. His efforts eventually led to the discovery that Markhamer Duff-Smith, Diana's brother, had hired appellant to murder the Wanstraths so he could inherit their estates. [FN4]

FN3. Diana Wanstrath's mother, Gertrude Zabolio, had been found dead with a stocking tied around her neck in 1975. The Harris County Medical Examiner's Office had also declared Gertrude's death a suicide.

FN4. Duff-Smith had earlier hired appellant and Paul McDonald to murder his parents, Dow and Gertrude Zabolio. By accident of fate, appellant was only able to kill Gertrude Zabolio.

* * * * The judgment of the trial court is affirmed.