Moulton, David Len ( 2013 )


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  •            IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-1889-11
    DAVID LEN MOULTON, Appellant
    v.
    THE STATE OF TEXAS
    ON STATE’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE SIXTH COURT OF APPEALS
    CASS COUNTY
    M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J., and
    K EASLER, H ERVEY, and C OCHRAN, JJ., joined. K ELLER, P.J., and C OCHRAN, J., filed
    concurring opinions. W OMACK, J., concurred. A LCALA, J., filed a dissenting
    opinion in which P RICE and J OHNSON, JJ., joined.
    OPINION
    Appellant was convicted of murder and sentenced to sixty years in prison. Finding
    that Appellant suffered “some harm” by the erroneous submission of the “by manner and
    means unknown” jury charge, the Sixth Court of Appeals reversed the judgment of the
    Moulton—2
    trial court and remanded for further proceedings.1 The State filed a petition for
    discretionary review, which we granted on four grounds:
    (1) Did Appellant’s objection to all three manners and means on the basis
    that cause of death was not established preserve a complaint about the
    submission of the unknown means of asphyxiation on grounds consistent
    with Sanchez?
    (2) Is Appellant barred from complaining about alleged Sanchez error that
    results from his strategic decisions?
    (3) Does the reasoning of Sanchez apply outside the narrow confines of that
    case, i.e., a sealed crime scene with the suspect inside, combined with
    testimony expressly limiting the manner and means of the cause of death?
    (4) Did Appellant suffer actual harm, egregious or otherwise, from
    submission of an unknown manner an means of asphyxiation?
    We now reverse the judgment of the court of appeals in light of our recent opinion on
    motion for rehearing in Sanchez v. State.2
    BACKGROUND
    Summary of Facts
    Appellant called 911 and explained that he had found his wife Rebecca floating,
    face down and unresponsive, in the middle of their pond. Emergency personnel
    responded to the call and attempted to revive Rebecca, but she was pronounced dead at
    the hospital. Hospital records listed the mechanism of injury as “drowning.”
    1
    Moulton v. State, 
    360 S.W.3d 540
    , 567 (Tex. App.—Texarkana 2011, pet. granted).
    2
    Sanchez v. State, 
    376 S.W.3d 767
    (Tex. Crim. App. 2012).
    Moulton—3
    At trial, evidence was introduced that indicated a possible history of domestic
    violence in the marriage, that Appellant’s defense that he had left the house and been
    gone for around forty minutes during the time of Rebecca’s death was questionable, and
    that Rebecca hated the pond, and would not have gone into the heavily wooded area alone
    wearing flip-flops. A detective who was called to the scene and examined the pond
    explained that “there was no impression or anything where someone might have taken a
    fall into the pond” and to him it did not appear as if Rebecca had just fallen in.
    Indictment
    Appellant was indicted for murder. In a three-paragraph indictment, the State
    alleged Appellant did then and there:
    (1) knowingly or intentionally cause the death of [the victim]
    by manual strangulation by holding her neck with his hand in
    a manner that would cause death by asphyxiation;
    (2) knowingly or intentionally cause the death of [the victim]
    by drowning [the victim] in a pond; and
    (3) knowingly or intentionally cause the death of [the victim]
    by asphyxiation by means unknown to the grand jury.
    Evidence of Manner and Means
    The medical examiner explained that in eighty-five percent of manual
    strangulation cases, petechiae—small red or purple spots caused by a hemorrhage—are
    present in the eye. The medical examiner did not find petechiae in Rebecca’s eye, but
    there was some sign of injury close to the collarbone–a “3/16-inch angulated red mark,” a
    Moulton—4
    puncture of the skin in that area and a 1-inch area of “soft tissue hemorrhage” just below
    the puncture. She had another hemorrhage on the right side of her neck, but there were
    no bruises or abrasions on her neck area, and there was no way to determine whether the
    red mark occurred before or after her death. Appellant testified that the paramedics
    dropped Rebecca multiple times when they were loading her onto the gurney and that
    they placed a C collar on her neck which caused the red mark. However, the paramedics
    testified that Rebecca was never dropped from the gurney and that they did not place a C
    collar on her neck. Additionally, there were no signs of a struggle, which would normally
    be found when examining a healthy adult who has been strangled. Some sort of asphyxia
    was suspected because her lungs had “froth in large airways” containing “edema, intra-
    alveolar hemorrhage and aspirated food.” However, asphyxia was not listed as the cause
    of death because the noted symptoms of asphyxia could have been the result of the
    resuscitation efforts.
    The autopsy report concluded that Rebecca had died as a result of “undetermined
    causes.” The comment section of the report stated: “Based on investigation and injuries
    found at autopsy, this case is suspicious for homicide.” However, at trial it was
    discovered that this statement was based on a report that contained inaccurate statements.
    Over a year after the original autopsy report was completed, it was amended to list
    “homicidal violence” as the cause of death based on newly submitted affidavits from
    multiple people that detailed the rocky relationship between Appellant and Rebecca and
    Moulton—5
    her dislike of the woods.
    The medical examiner testified at trial that the cause of death was “some sort of
    asphyxia. Could be drowning, could be strangulation, could be suffocation. We can’t
    specifically pick which one, because when you deal with an asphyxial type of death, the
    findings are very subtle.”
    Jury Charge
    The jury was charged in the disjunctive, with the same three alternative methods of
    murder that were alleged in the indictment. The jury was also instructed that it did not
    have to agree on whether the death was caused by strangulation, drowning, or
    asphyxiation by manner and means unknown, but was required to unanimously agree that
    Appellant intentionally or knowingly caused the death.
    Defense counsel objected, saying, “on cause of death, which must be proved in
    every murder case, the evidence concerning cause of death must come from a qualified
    medical expert. One expert testified that it was undetermined. Another expert testified to
    homicidal violence per the autopsy. Therefore, there is no credible cause of death
    evidence concerning strangulation, drowning, or asphyxiation by an unknown means.”
    The court overruled the objection.
    The jury found Appellant guilty and sentenced him to sixty years in prison.
    Court of Appeals
    On appeal to the Sixth Court of Appeals, Appellant again complained about the
    Moulton—6
    submission of the “by manner and means unknown” jury charge. The court of appeals
    agreed that the charge was erroneous based on “a history of caselaw” involving such
    allegations.3 The court relied on cases such as Corbett v. State,4 Hicks v. State,5 Rosales
    v. State,6 and our 2010 decision in Sanchez v. State7 and concluded that the proper
    analysis is to ask whether the manner and means “were truly unknown or whether specific
    acts were shown to constitute the manner and means of the commission of the offense.” 8
    Applying Sanchez, the court agreed that the charge here was erroneous because, like
    Sanchez, here “there was a known choice of several options” that should have been
    submitted to the jury “because the manner and means was not entirely unknown.” 9 The
    court reasoned that the medical cause of death was asphyxia and that what caused the
    3
    
    Moulton, 360 S.W.3d at 554
    .
    4
    
    493 S.W.2d 940
    (Tex. Crim. App. 1973) (requiring the State to prove the elements
    contained as alleged in the indictment).
    5
    
    860 S.W.2d 419
    , 424 (Tex. Crim. App. 1993) (requiring the State to prove that the grand
    jury exercised due diligence, but was unable to decipher the means of committing the offense).
    6
    
    4 S.W.3d 228
    (Tex. Crim. App. 1999) (overruling Hicks and holding that the due-
    diligence requirement was met when a member of the grand jury testified that the jury was
    unable to determine the manner and means).
    7
    PD–0961–07, 
    2010 WL 3894640
    , 2010 Tex. Crim. App. LEXIS 1242 (Tex. Crim. App.
    Oct. 6, 2010).
    8
    
    Moulton, 360 S.W.3d at 556
    .
    9
    
    Id. at 559.
                                                                                       Moulton—7
    asphyxia was at issue.10 Therefore the jury charge should have been amended to remove
    the submission of “manner and means unknown,” and should have instead, simply given
    the jury the multiple causes of asphyxia that were presented by the evidence.11 The court
    then reviewed the case for egregious harm and concluded that Appellant suffered “some
    harm” by the error.12
    ARGUMENTS OF THE PARTIES
    The State’s Arguments
    In its first ground for review, the State argues that Appellant’s objection at trial
    was inadequate to preserve error. The State posits that Appellant’s objection that there
    was no evidence supporting any manner and means was essentially a motion for a
    directed verdict. In Sanchez, the appellant specifically complained about the portion of
    the charge regarding the manner and means being unknown to the grand jury. Here,
    Appellant objected to the entire charge and was not specific. Because of this, the State
    argues that, even if the charge was erroneous it should have been reviewed for egregious
    harm instead of some harm.
    The State further argues that Appellant’s objection was not only inadequate to
    warrant a some-harm review, but also that, based on Sanchez, it was so insufficient that it
    10
    
    Id. at 558–59.
           11
    
    Id. at 559.
           12
    
    Id. at 563.
                                                                                       Moulton—8
    did not preserve charge error at all. The State explains that Appellant’s objection to the
    jury charge was too late to preserve his complaint because Sanchez requires that a
    defendant object to the lack of notice before trial or during trial.13 The State also argues
    that Appellant’s argument at trial—that there was no evidence on cause of death—was
    inconsistent with his argument on appeal when he claimed that there was sufficient
    evidence to preclude an “unknown” charge. The State uses our opinion in Tolbert v.
    State14 for support and concludes that Appellant’s “all or nothing” strategy means that
    there is no jury-charge error at all.
    In its third ground for review, the State points out that, unlike Sanchez, the record
    in this case demonstrates that all of the evidence that could have been presented at trial
    was neither ascertained nor presented. For example, in Sanchez, the victim and the
    suspect were found in a sealed hotel room by the police, but here (according to
    Appellant), the victim was found floating in a pond. It was not known if the victim
    suffered the fatal trauma in the pond or somewhere else, and it was not clear that she had
    drowned because she was found floating and not submerged. The State argues that this
    list of possible manner and means is so broad as to be tantamount to an unknown manner
    13
    See Sanchez, 2010 Tex. Crim. App. LEXIS 1242 at *17–18 (explaining that “[w]here
    the State has alleged “unknown” manner and means in the indictment or jury charge, the
    defendant may challenge the propriety of the “unknown” allegation before trial and (if the
    evidence at trial has made a second inquiry necessary) at the conclusion of the evidence, but
    before the charge is submitted to the jury.”)
    14
    
    306 S.W.3d 776
    , 778–79 (Tex. Crim. App. 2010).
    Moulton—9
    and means allegation. Finally, in its fourth ground for review, the State asserts that based
    on the state of the evidence, the court of appeals should have concluded that the
    “unknown manner and means” instruction was warranted, not that it was harmful error.
    Appellant’s Arguments
    Appellant argues that his pretrial objections to the indictment and later objections
    to the jury charge were sufficient to preserve error and cites our decision in Tucker v.
    State, in which we explained the general prerequisite to preserve a complaint for appellate
    review. Appellant asserts that it is clear that he met this prerequisite and objected with
    enough specificity to later argue that the jury was erroneously charged based on the
    Sanchez rationale. Appellant emphasizes that Texas courts have recognized the
    “difficulty of formulating the proper objection when faced with an unusual type of
    evidence”15 and argues that this should be recognized as such a case.
    Additionally, Appellant explains that as evidence was introduced at trial, it became
    apparent that the submission of all three allegations was inappropriate and claims to have
    made a clear, pretrial objection to the manner and means unknown allegation. Appellant
    contends that the State’s speculation as to Appellant’s trial strategy does not render
    Sanchez inapplicable. Appellant explains that Sanchez provides no indication as to what
    objections were made by the appellant in that case and that the variance between the
    allegations in the indictment and proof in this case created a unique situation that was not
    15
    Woods v. State, 
    13 S.W.3d 100
    , 105 (Tex. App.—Texarkana 2010, pet. ref’d).
    Moulton—10
    addressed in Sanchez. More specifically, Appellant argues that the evidence was
    insufficient to convict him on either of the two “known” allegations, while the medical
    expert’s testimony precluded the submission of the “unknown” allegation. Appellant
    argues that this situation differs from Sanchez and because of this, his trial strategy should
    have no bearing on the outcome of the case.
    In response to the third and fourth grounds for review, Appellant asserts that the
    reasoning of Sanchez does apply outside the narrow confines of the case and that the
    court of appeals correctly determined that he suffered some harm from the erroneous jury
    charge. Appellant argues that in Sanchez, the evidence in support of the conviction was
    overwhelming, but the testimony as to manner and means was not. Appellant further
    explains that the court of appeals engaged in the same inquiry as our Court in Sanchez
    and concludes that once the erroneous charge was removed, the evidence was insufficient
    to convict on other theories.
    APPLICABLE LAW
    Because we had not yet handed down our opinion on motion for rehearing in
    Sanchez, the court of appeals and the parties in this case relied on our original Sanchez
    opinion. Therefore, we will begin with a summary of our Sanchez opinion on motion for
    rehearing.
    In Sanchez, two guests in a motel room called the police after hearing a woman
    screaming in an adjoining room. Upon arrival, the police heard a stun gun go off inside
    Moulton—11
    the room in which the woman had screamed. When the police entered the room, they
    found the appellant lying next to his dead, naked girlfriend. His girlfriend’s face and
    neck were bruised and there were marks from a stun gun on both her neck and chest.
    There was only one door to the room, and it had been barricaded. Also all of the
    windows had been painted shut. At trial, the medical expert listed “asphyxia by
    strangulation” as the cause of death, but indicated that he was unsure as to whether the
    cause of asphyxia was strangulation or the stun gun. Similar to this case, the appellant
    was charged with murder and both the indictment and the jury charge included two
    known manner and means theories and two unknown manner and means theories. The
    jury charge allowed the jurors to consider each manner and means in the disjunctive, and
    appellant was convicted under a “manner and means unknown” theory. The Thirteenth
    Court of Appeals applied Hicks v. State,16 and reversed for jury-charge error.
    In our recent opinion on motion for rehearing, we explained that the Hicks rule
    relied upon by the court of appeals is no longer viable since the adoption of the
    “hypothetically correct” jury charge in Malik v. State,17 and determined that sufficiency
    16
    
    860 S.W.2d 419
    , 424 (Tex. Crim. App. 1993) (holding that “[w]hen an indictment
    alleges that the manner or means of inflicting the injury is unknown and the evidence at trial does
    not establish the type of weapon used, a prima facie showing is made that the weapon was
    unknown to the grand jury”). The Court further explained that “if the evidence at trial shows
    what object was used to inflict the injury, then the State must prove that the grand jury used due
    diligence in attempting to ascertain the weapon used.” 
    Id. 17 See
    Malik v. State, 953 S.W.2d. 234, 240 (Tex. Crim. App. 1997) (determining that
    sufficiency of the evidence should be assessed using the elements of the crime as defined by the
    hypothetically correct jury charge for the case).
    Moulton—12
    review should be conducted by comparing the evidence to the hypothetically correct jury
    charge.18 We further explained that Malik pertains to charge error only in that it might
    assist the appellate court in determining whether the actual charge was phrased correctly
    based on its determination of what the hypothetically correct jury charge might be.19 We
    held that it was error to include the unknown manner and means because there was no
    evidence to support it.20 Instead there was a limited list of known alternatives for the
    manner and means of the cause of death.21 Therefore, we concluded that the jury charge
    should have been reduced to the two known theories that were supported by the evidence
    at trial.22
    ANALYSIS
    Because the first and second grounds for review focus on preservation issues, we
    shall begin with a discussion of Appellant’s third ground for review to determine whether
    there was jury-charge error that needed to be preserved.
    In the third ground for review, this Court is asked to determine whether the
    reasoning of Sanchez applies outside the narrow confines of that case. While Appellant’s
    18
    
    Sanchez, 376 S.W.3d at 772
    .
    19
    
    Id. 20 Id.
    at 774.
    21
    
    Id. 22 Id.
                                                                                     Moulton—13
    and State’s briefs on this issue, as well as the court of appeals’s decision were written
    before our decision on motion for rehearing in Sanchez we are still able to conclude that
    the reasoning from Sanchez may apply under different circumstances. However, in this
    instance, the court of appeals incorrectly held that the manner and means could be
    determined from a known choice of several options. It is clear that this case is
    distinguishable from Sanchez, in which there was a closed universe of possibilities
    regarding manner and means. In Sanchez, we stated that the court’s instructions should
    be reduced to the theories that are supported by the evidence at trial.23 In this case, each
    of the three theories included in the jury charge could be supported by the evidence given
    by the medical expert at trial. The means unknown theory is supported by the fact that the
    victim’s injuries did not conclusively point to a manner and means of asphyxiation; rather
    her injuries could have pointed to a variety of possibilities. In Sanchez, the victim, the
    defendant, and a weapon were found in a sealed hotel room directly after the crime. This
    information led to the court’s conclusion that “manner and means unknown” was an
    inappropriate jury charge because there was a limited list of known alternatives.
    However, in this case, there is unlimited information that may be unknown, because the
    crime scene does not point to a conclusive list of possibilities. A limited list of known
    alternatives does not exist. Therefore, the indictment correctly alleged an unknown
    manner and means as well as all options supported by the evidence. Also, because
    23
    
    Id. at 774.
                                                                                  Moulton—14
    manner and means remained unknown at the conclusion of the evidence, the instruction
    on unknown manner and means was properly submitted to the jury.
    CONCLUSION
    Because we hold that the trial court did not commit jury-charge error, there is no
    need to address the first and second grounds for review regarding preservation or the
    fourth ground for review concerning the harm analysis. We conclude that based on
    Sanchez, the trial court did not err by instructing the jury on the “unknown” manner and
    means of committing the offense. Therefore, we reverse the judgment of the court of
    appeals.
    Meyers, J.
    Delivered: March 6, 2013
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