Witnessed: Devil in the Ditch - Deadly Fortune | 6. Unspun

Episode Date: February 5, 2025

In a shocking development, Tex's conviction is overtturned.  But this is not the end of our story, as we discover new behind-the-scenes manuvering to get Diane's million dollar inheritence. Binge all episodes of Deadly Fortune, ad-free today by subscribing to The Binge. Visit The Binge Crimes on Apple Podcasts and hit ‘subscribe’ or visit GetTheBinge.com to get access.  The Binge – feed your true crime obsession. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Where's your playlist taking you? Down the highway? To the mountains? Or just into daydream mode while you're stuck in traffic? With over 4,000 hotels worldwide, Best Western is there to help you make the most of your getaway. Wherever that is. Because the only thing better than a great playlist is a great trip.

Life's the trip. Make the most of it at Best Western. Book, direct and save at bestwestern.com. Listen to all episodes of Deadly Fortune ad-free right now by subscribing to The Binge. Visit The Binge channel on Apple podcasts and hit subscribe at the top of the page or visit getthebinge.com to get access wherever you listen. The Binge, feature true crime obsession. The Binge.

I didn't ever hear you say you're sorry for what you did. To me that silence speaks volumes. Biting words from the judge to an Atlanta attorney convicted in his wife's murder, Tex McIver is sentenced to life in prison with the chance for parole. I was stunned that he was convicted. Yeah, I thought it was a pretty reasonable chance of involuntary manslaughter.

I'm sure you've seen the TV, you know, the jury comes out, you know, malice murder, not guilty. And I'm like, that's right, you know, we expected that. Guilty of felony murder. I'm like, what? What? I was shocked by that. I was shocked by that. You know, it was days and days and days of jury deliberation. And the last thing that happened that day was they said to be guilty of, I'll abbreviate it a little bit, to be guilty of felony murder, does that include

intent to shoot? And to us, that question meant we don't find the intent to shoot. So, we were thinking we're about to get an acquittal on that too. Because the judge said, oh yeah, if you're going to find him guilty of that, you've got to find the intent to shoot. Why would they have asked that question? You know? So we were even more emboldened at that point not to ask for a mistrial on the jury. The jury returned its verdicts, finding McIver not guilty of malice murder, the first count that was read in the courtroom to everyone, including Tex. For that brief moment, it was possible Tex was going to be found innocent and become

a free man again. But the jury surprised everyone by returning a guilty verdict of felony murder, aggravated assault, influencing a witness, and possession of a firearm in the commission of a felony. The verdict form provided blanks for each count of the indictment, and the jury was instructed that under Count 1, Murder, and Count 2, Felony murder, it had the option for finding of guilty of involuntary manslaughter as a lesser included offense, and both counts contained such a blank. The jury did not mark either of those blanks. This would become important once the proceedings wrapped.

Don Samuel reflected on the case during a visit to my office in late summer of 2024. I think they put together a good set of circumstantial evidence, which they hoped and succeeded at convincing the jury that you shouldn't just find pure accident. They succeeded at that. And I don't have a problem with the jury reaching a verdict of negligence. I'm not a big Second Amendment fan, to put it mildly. I think someone who has a loaded gun sitting in his lap needs to have his head examined. And conceivably with the trigger pullback, although it's in a bag, I mean, do you just discount all that?

It's in a public's grocery bag. Is mean do you you just discount all that it's in a public grocery bag it is that the way you intentionally shoot someone leave the gun in the bag and And we just so much nonsense your theory required requires you to find that he's unbelievably devious and smart and Unbelievably stupid and you take the stupid stuff and say, well, that's just because he's stupid. And all the other stuff you say, it's because he's devious. I think that's an unfair way to use our criminal justice system. It's fine for you to believe it. It's

fine for any way to believe it. I don't think juries should decide like that. They didn't find that he intended to kill her. I mean, so we don't know what this jury was thinking. There was some kind of compromise. It was obviously a compromise. We're going to find them guilty of aggravated assault without intent to kill. That couldn't have been what was going on. At the district attorney's press conference

following the verdict, Billy Corey stands next to the prosecutors. I can say that I concur. I concur with Attorney Paul Howard. Tex is going to prison for the murder of his wife, Diane, for the rest of his life. But this story is far from over. From Sony Music Entertainment and Waveland Road, you're listening to Deadly Fortune. This is episode 6, Unspun. The fallout from the case cut deep.

Danny Joe Carter, who had been a star witness at the trial, also discovered new information about the day Diane died that still sends chills down her spine. Danny Joe had been out at Texan Dian's ranch earlier that day before they met for dinner at Longhorn. We got up and ate breakfast. I'm sure it was probably sage sausage biscuits with fresh jalapenos and drank coffee, and we were talking about planning. Dian was the ultimate planner. Yeah, we were making detailed plans

about that we were getting all of our bags right at the door so that we could stay out and play as long as we wanted to. And then at 6.30, our bags were at the door so that we could leave. I was going over to this judge's, it was a local judge's house, to pick up some venison because I was going to make 36 quarts of chili and you know, dole it out to everybody because that's what I did until I found out from the trial that was in 2018, so it was two

years, almost two years later, that he had gone down to the barn and asked Tanner if he could take me home. You know, that and Tanner said, no, I can't. Diane would have been really, really, really upset. That might not have been a big red flag to other people, but for me, it was not just a red, it was a huge blinking red light. It gives me goosebumps right now. You guys shot guns a lot.

All the time. Was there a target range at the ranch? There was a huge, yeah we called it a range. It was a big mound of dirt, a small little mountain of dirt, and we would carve out shelves on there and put plastic bottles or targets or whatever and shoot. Perhaps that's where it was supposed to happen. That could have been a possibility. That certainly would have fit in with something that we did all the time.

Craig Stringer, also with Tex and Danny Joe that night at Longhorn, absolutely believes his old friend Tex intentionally killed Diane. Oh, I think it was completely planned. I think that he had everything set up the way he wanted it set up. And I think in his mind he knew how he was going to do it. And then when he did it and they went through all that stuff at the hospital, and he'd already told me she had an accident, he had changed his story. I mean, he'd literally had to change his story. But I, he literally had to change his story.

But I know what the problem was, I think you too, Tex had borrowed $350,000 from her and told her that if you didn't pay it back, she would get the second part of the farm. And the farm was his, was his originally knowing Diane she probably said tax you got five days to pay me tax you better get some money tax on the farm tax and that's the way Diane treated him I think he got her snapped but I also think he predestined her death. And what kills me is that, you know, they had money

but their money, this is from the forensic accountant, said, Craig said, neither one of them had a lot of cash money, they had land, they had buildings, they had houses that you know, stuff like that. So said either one of them, if either one of them passed away, the other would not be able to get money from from the bank or from because there's just wasn't that much there. And I'll have to be in property being sold. So what do you text to? He had a

four day auction of all of her furniture or all of her clothes. Tax was very intelligent, but I think she got the best of him, nagging on him, especially when he thought he was gonna lose his branch. His brain just started working too fast. And he said, I'm not gonna let this happen. I'm not gonna owe her that $350,000.

I'll set him to the 30th. I'm going to take care of this." And he did. Rachel Stiles, for one, still believes Tex. Absolutely. Because there was no definite proof that it was intentional. If Tex wanted to kill Diane, he would not have killed her in the backseat of a car with her best friend driving. Tex is a smarter guy than that. And any man. I mean, if he wanted to kill her, there was too many possibilities.

And he would have never done it that way. So that it was definitely an accident. And he loved her. He wouldn't have shot her because they had so many plans that they were going to do together. And you know, one was the fact that, you know, Tex was retiring. And I mean, there was never any doubt in my mind that it was an accident. And that's why I still become Tex Texas friend because I believe in him. With the trial and headlines now seemingly behind everyone, the Georgia Supreme Court stepped in and made a shocking ruling, overturning Texas' conviction. ...ruling from the Georgia Supreme Court as justices overturned the murder conviction Texas conviction. against text for murder are quote, not overwhelming or even strong. Hi, this is Jesse, host of podcast Dinners on Me.

The holidays are always hectic and by the time January rolls around, I'm craving simple, healthy meals that don't take hours to prepare. That's where Whole Foods Market's meal hacks come in. Last week, after a long day at work, I grabbed one of their salad kits. I paired it with one of their famous rotisserie chickens and dinner was done in under 10 minutes. No stress, no mess, just good food made easy. And the best part, it's all high quality.

No questionable ingredients, just fresh, wholesome options that I can feel great about eating. They're ready to cook veggies and heat and serve soups are lifesavers as well. Whether I'm in a rush to hit the gym or I just want some extra time to play with my kids, Whole Foods helps me spend less time in the kitchen and more time doing what I love.

Whole Foods makes it easy to stick to my wellness goals without sacrificing flavor or time. Terms apply to all sales, pickup and delivery. Make Whole Foods Market the home in your wellness routine. Bagel? Bagel. Bagel? Bagel?

Bagel. Bagel? Bagel. Gel? Bagel? Bagel. Bagel? Bagel.

No, wait. Bagel. Bagel. B-A-G-E-L. Bagel. Bagel. Bagel. No, wait. Bagels. Bagel. B-A-G-E-L. Bagel. Bagel. Bagel. Bagel.

Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel.

Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Bagel. Tex had been given a life sentence for murdering Diane, but the Georgia Supreme Court reversed his conviction.

The state would be allowed to retry Tex, but the Georgia Supreme Court also prevented some aspects of the prosecution's case to be used as evidence in any new trial. The court held that the jury should not have been told about the Georgia Slayer Statute, the law that prevented Tex from inheriting Dianne's estate if he was found guilty of intentional homicide. The state had argued that the Slayer Statute demonstrated Tex's financial motive for the killing, but the Supreme Court reasoned that the existence of the law actually cut against such a motive.

The state failed to explain why Tex killed Diane under circumstances where he was clearly responsible for her death if he had done so intentionally for financial gain. A new jury in a retrial would not be allowed to hear the state argue that Tex tried to make Diane's death look like an accident to avoid the Slayer Statute. Nor would the new jury be allowed to hear about Diane's purported second will, which was never found. Brett Zembrick, who was an investigator on this case, shares his experience with convictions being overturned by the Georgia

Supreme Court. When I first started working murder in the 90s, we were probably getting 160, 170 cases a year. And then, you know, that's 21 detectives, and you're getting 8, 9, 10 cases a year. Back then we were working kidnappings, officer involved shootings, those were part of it. So hundreds? Hundreds, yeah. How many of those were overturned by the Georgia Supreme Court?

I don't think I've had any overturn based on... If they get overturned, it's because of something that was omitted intentionally or direction by the... The judge says something wrong in closing or in sentencing or whatever and they get a re-sentence. So there's a couple of minor ones like that, but this one, the fact that it got overturned that it was Robert McBurney was the judge who I have huge respect for. I think he's a very intelligent and very fair judge.

He getting overturned in that one was kind of a shock. In reversing the conviction, the Georgia Supreme Court walked back some of its own reasoning from previous cases, reasoning Judge McBurney had specifically relied on in setting up the instructions and the verdict form for the jury. Remember how the verdict form had given the jury the option to find Tex guilty of involuntary manslaughter instead of murder, the jury had been instructed that involuntary homicide was the felony version of the offense and required a finding that Tex had acted with criminal recklessness. The Georgia Supreme Court

ruled that the jury should have also had the option to find that Tex was only guilty of a misdemeanor version of involuntary homicide and that he had acted only with criminal negligence. Our producer Jason Hoke had an opportunity to sit in person with Judge McBurney on a wide variety of topics around this case in his quarters and on the record. Here's what Judge McBurney had to say about the Georgia Supreme Court ruling. I respect their judgment. It seemed to take a whole lot of legal maneuvering to get around the existing precedent of that same Supreme Court upon which I relied in concluding that a charge on lawful conduct that legitimately performed would be appropriate.

The only other observation I'll make is that the jury rejected recklessness as a level of mens rea or intent in finding aggravated assault. And so it struck me as even if the correct legal answer going forward is given certain evidence you must charge on that lowest level of intent if a jury concluded that a higher level of intent didn't apply either then it was harmless error I think that's my most profound reaction is that if error how was it harmful? And that wasn't addressed in the opinion.

But it controls and the conviction was reversed and we got back at it. You don't see too many cases like this being overturned at one level up, do you? You don't see a lot of people like Mr. MacGyver and all his connections either. Here's more from my conversation with Don Samuel on the Georgia Supreme Court ruling. So the jury leapfrogged a lesser charge, went for a more serious charge, but did not go for the most serious charge. That's right. Beyond the instruction error decision, which is very clear and I think makes sense.

I think it's debatable, but I saw the logic of the Supreme Court saying you should have — Yeah, that's right. He should have offered involuntary manslaughter. Both involuntary manslaughter. There's two different grades of involuntary manslaughter, right. But the reversal seemed to carry a good bit of opinion from the justices, like as you mentioned, the motive evidence was weak, it didn't make sense for Mr. Kiver to shoot Diane downtown

Atlanta. I was kind of surprised by the personal or the personal opinions in that decision. Did you find that interesting? It was a little strong, I thought. The opinion, for example, the opinion said all this hospital business was baloney. There was no reason to, I mean, that's just, that doesn't belong in a courtroom. That kind of weird speculation that he chose Emory over Grady, you know, in order to make sure she died.

Hey. You know, and then the whole second will. And you know, we're going to spend days talking about maybe there was a second will. We don't know. We haven't found it. We haven't seen it. We haven't found the drafter. We haven't...

Nobody saw her looking at or reading a second will. One person said she asked me to make a copy of something and said it was my second will, but she never looked at it. And nobody ever said Tex had any knowledge of the site. Nope. And the Supreme Court said, that's not the way we're going to decide guilt or innocence in this state.

You know, this isn't a stupid TV show where you just throw in all the stuff, and at the end, it turns out the guy's guilty and he confesses. Why such a dramatic ruling? Was there some other influence happening amongst the legal and political players tied to this case? I'll just say it, Diane's friends believe the Georgia Supreme Court handed a get out of jail free card to their once prominent and powerful legal colleague, a black robe

back scratch. Regardless, the prosecution would have their hands tied with a retrial of Tex, but they pressed ahead anyway. Fonny Willis tells Billy Corey the DA's office is ready to prosecute Tex again, and they move forward. The retrial of Tex McGyver was set to begin. Dressed in a dark pinstripe suit, 81-year-old Claude Tex McGyver was back in a Fulton County courtroom Monday.

And we are here to start the trial of Mr. McGyver. In 2018, a jury convicted Texas of killing his wife Diane. But last year, the state Supreme Court threw out the conviction saying... On the first day of jury selection, Judge McBurney issues an order that says to the prosecution, because of the opinion of the Supreme Court that the evidence was insufficient, you're not going to be able to allege that he did this intentionally and number two, you can't bring up his finances as a motive either. So that order by the sitting judge after jury selection had started is a mystery.

Why did Judge McBurney wait until jury selection started to issue these orders that came from him, not the Supreme Court. Now some might say that he thought that if that evidence was introduced again, the Supreme Court might very well reverse him again. There's an argument that he was removing what led to the reversal in the first place. In the ruling by the Georgia Supreme Court, they argued the Slayer Statute, which would have prevented tax from gaining access to Diane's fortune because he had intentionally killed her, did not pass muster. They said, if he were trying to avoid the effect of the Slayer Statute while intentionally killing Diane for financial gain, would do so in a circumstance where there could be

no question that he shot Diane in the presence of her best friend. Without more, this evidence was not relevant to demonstrate a motive for McIver to murder Diane or his intent to kill her and it should have been excluded. But right as the jury was being seated and the retrial of Tex MacIver was set to begin, Tex took a plea deal. And along the way, the Slayer Statute provision, the one that would have prevented tax from inheriting Diane's fortune, was mysteriously removed. TD Direct Investing offers live support. So whether you're a newbie or a seasoned pro, you can make your investing steps

count. And if you're like me and think a TFSA stands for total fund savings adventure, maybe reach out to TD Direct Investing. My grandmother was murdered, likely with a candlestick. I really didn't think it was somebody that knew her. My family tried to find the killer. A psychic got involved. And asked, what if it was one of us? She did this. It's my hometown's greatest mystery. The plea deal Tex McGyver cut that day is the reason why I'm here today telling this story. Because unbeknownst to anyone who loved Diane, including Billy Corey, a variable called the Slayer Statute had been removed from the new plea deal Tex took January of 2024. Back in 2018, former district attorney Paul Howard

offered Tex a deal if he pled guilty then. That plea included the provision that Tex could not gain financially from Diane's death. He could not inherit her estate, he could in no way benefit financially from shooting Diane. That provision was mysteriously removed from the 2024 plea deal without anyone's knowledge other than the prosecution, the defense, and the judge. As I sat in the courtroom that day and as the plea deal evolves, the court, the prosecution and the defense make a point of saying that there had been a substantial wrongful death award during the process when Diane's estate sued Texas Insurance Company for wrongful death.

They settled out of court and it was a large sum of money, $2,250,000. I remember watching Judge McBurney confirm that Tex McIver was waiving his right to that settlement. Both Don Samuel and Adam Abbate agreed. As long as this negotiated plea agreement is gonna be made part of the record, it need not be part of the final disposition, but it needs to be enforceable should something change and what the state could point to would be paragraph two that indicates that the settlement

is going to be supervised by person X for the benefit of persons Y and Z and it's all in there. But the important part is not where it's going, not where it's not going. And that is that Mr. MacGyver is abandoning any claim he might have, colorable or otherwise to those settlement proceeds. Exactly right. Okay. You're understanding as well. Okay. Got it.

Then I think I understand the contours. Next, Tech stood in front of the judge and addressed the courtroom, where he finally acknowledged his responsibility in the death of his wife publicly. Mr. McGyver, when you're ready. Yes, sir. Thank you. I have to apologize for my hearing at Long Prison where I was for almost five years. All of us, every one of the inmates had COVID at some point and it took about half my hearing. The bunkmate next to me lost all his hearing. It's really rather a shame, but those situations come and go. I wrote Diane's obit. It took me three

days because I couldn't stop crying for the entire time that that obit was there. It's been circulated. It's on the net for time in memorandum. Diane's the best friend I ever had and I've had a lot of good friends for a long time. And places where you make friends very quickly, like in war and places like that. But she won my heart quickly. She again was the best friend. She's the best partner I could have possibly imagined. And I will always, always love her in that regard. She died as a result of my actions, plain and simple. I've stood up to that over and over again.

I can't remember a day I didn't cry for the first two years. I was at the prison. It makes me very, very, very angry. It makes me nervous because I know that he thinks that if it weren't for me and Billy Corey, that he would never have been incarcerated. I mean, he asked a lot of people at different times to fall on their sword for him. The fact that he has even been recorded saying I was going to send him to prison makes me

very nervous for him to be out with some extra money that something might happen to me. I like Adam. I like him a lot and you know, it is very possible that he didn't know exactly how much it was in there. I don't know what his relationship with Mary Margaret Oliver, but I don't think she had to give anybody any information, especially the prosecutors, about how much money there is. So I don't really know.

I don't know what to think about that. That day in court when Tex finally had something to say, still sticks with Danny Joe Carter. Me and you and friends of Diane's Billy Corey that we were all getting what we wanted because Tex finally had to admit that he killed her. Well, everybody knew that he killed her. He was the only one sitting in the back seat with a gun. He did it. That was never a question. I mean, but he never would say it. He never, well, he never said he was sorry. But I mean, when he said, yeah, you know, I'm responsible for her death, that meant absolutely nothing to me. Immediately afterwards, I felt like, you know, I didn't quite comprehend everything

because it's all so wordy about what was actually going to happen to him. And I didn't realize until later that even if he goes to serve the rest of his time in prison, that he gets out in the middle of 2025. The judge directed the proceeds of that settlement to go to Tex and Diane's godson, Austin Schwall. But what happened next seemed to take everyone by surprise. Judge McBurney went on to say that he was appointing Austin's father, McBurney's fellow Fulton County Superior Court Judge Craig Schwal, to be the trustee of all that money. Georgia law gives the trustee 100% confidential

control so the public will most likely never know how that money is spent. The last condition that I'm aware of that needs to be part of your sentence and will be in the final disposition is that you are forfeiting, waiving, giving up whatever the right term is. I'm going to say waiving any and all rights that you may have to the settlement from the lawsuit that was brought by the administrator of Dianne MacGyver's estate against you and a settlement resulted. You are, guess what I need to say is not that you're waiving, you are assigning the rights that you have, any rights that you may have, you are assigning them to Judge Schwal

for the benefit of his two sons, which means you are abandoning and relinquishing the rights you have to that settlement amount. Your assignment is a condition of your probation. You may have already done it, you'll have complied and completed that term of probation, but that's something you don't get to unwind or undo so long as you are on probation.

Do you, Mr. Abbate, did I miss any conditions of probation that you had expected and negotiated would be part of this resolution? Yeah, you covered all of them. All right, Mr. Samuel, I did not intend to make them any more severe or restrictive than were negotiated. In other words, I am going along with the plea agreement. Billy Corey is sitting there also and realizes that, okay, something's not being said here.

They've made such a big deal out of saying that Tex is waiving what we believe to be two and a quarter of a million dollars of insurance proceeds to go to his godson. And it was arguable that that's what Diane would have wanted. But the hanging Chad, the elephant in the room, is, well, wait a second. What about all of Diane's other money that's left in her estate. After the proceedings, I go out into the hall and Mr. Corey is standing there, Danny Joe standing there with a handful of people that were there to support Diane. And Mr. Corey asks the prosecutor, Adam Abbate, what happens to the rest of the money in Diane's

estate? And Adam says, quote, Well, I think there's only about $70,000 and I'm pretty sure the attorneys are going to gobble that up. End quote. Billy Corey was placated. I guess he felt a little better. He's like, well, 70 grand's not a lot of money. And if that's all there is, then that'll definitely go to the attorneys.

End of story. Billy was stinging from the fact that Tex is going to be released from prison after serving six years for killing his wife. The jury is saying murdering his wife, but at least he's not going to benefit from her death. wife, but at least he's not going to benefit from her death, except for one small, incredibly important and nearly overlooked detail. The trustee of Dianne's estate, Ken Rickert, works for Mr. Corey. He's an in-house attorney for Corey Companies.

By law, Ken Rickert is allowed to know how much money is in Diane's estate as well as how it's going to be distributed. Imagine Billy Corey's shock when Ken Rickard found out the actual value of Diane's estate is not the $70,000 discussed that day outside the courtroom. Instead, her fortune is estimated to be worth between $1 and $4.5 million. After his original conviction, tax had been removed as the executor of Diane's estate because of an obvious conflict of interest. The jury found that he killed Diane so he couldn't get her money, even if he was named heir to her fortune.

To resolve any conflicts of interest with the distribution of Diane's finances, the state appoints a non-partial, neutral party in Mary Margaret Oliver to be the executor of the estate and to distribute the proceeds of the estate as to the directions of Diane's will, since Tex is no longer the heir. Well, with Tex's verdict reversal and the new plea deal that has now removed the Guyver is. Next time on Deadly Fortune. Oh, Lord, she would not be happy. And thank God she's in heaven and not having to worry about this.

That they were trying to rush something through behind the scenes in order to make this whole thing go away and put the money in Tex McIver's pockets. Yes, she did tell me that she wanted Austin to have the ranch. Diane would have wanted Austin to have money, yes. So it's the craziest case I've ever seen in Georgia history. Unlock all episodes of Deadly Fortune ad free right now by subscribing to the Binge Podcast channel. Not only will you immediately unlock all episodes of this show, but you'll get binge access to an entire network of other great true crime and investigative podcasts, all ad-free.

Plus, on the first of every month, subscribers get a binge drop of a brand new series that's all episodes, all at once. Search for the Binge on Apple Podcasts and hit subscribe at the top of the page. Not on Apple? of Sony Music Entertainment and Wave Land Road. I'm your host and reporter, Dale Cardwell. Jason Hoke wrote and produced the series. Our associate producer is Marnie Zambri. Production support provided by Tim Millard. Audio engineering by Shane Freeman.

The original score for Deadly Fortune is by Thomas Avery. Jason Hoke is the executive producer on behalf of Waveland Road. Executive producers for Sony Music Entertainment are Jonathan Hirsch and Catherine St. Louis. If you love the show, tell your friends and don't forget to leave a review. Thanks for listening! You