David C. Newell
So, you have a case where you can prove that the defendant actually murdered someone, but you can’t prove how he did it. No problem, you think, you just plead that the manner and means of death was unknown to the grand jury. Well, after the Court of Criminal Appeals’ opinion in Sanchez v. State, that may not be adequate. Moreover, you could even find yourself in a pretrial hearing to ensure that the manner and means was truly “unknown” to the grand jury rather than merely “unknowable.” I hope that an analysis of this case will provide practitioners some insight into how to resolve this pithy metaphysical dilemma.
Don’t tase me, bro
Two guests in a motel room heard a woman screaming in an adjoining room and called the police. When the police arrived on the scene, they heard a stun gun go off inside the room in which the woman had screamed. Police entered the room and found Orlando Sanchez and his dead, naked girlfriend. Her neck was bruised and there were distinctive marks of a stun gun on the skin of her neck and chest. The windows in the room had been painted shut and the only door to the room was barricaded by a piece of furniture. The police recovered a stun gun in the room.
The only medical expert to testify in the case listed “asphyxia by strangulation” as the cause of death on the autopsy report. He explained at trial that it was his opinion that asphyxia had caused the victim’s death either by strangulation or the stun gun. He indicated he wasn’t completely sure whether it was strangulation or the stun gun that caused the asphyxia, but he maintained that the cause of death was asphyxia.
The State charged Sanchez with murder. The indictment alleged that Sanchez had 1) intentionally and knowingly caused the death of the victim by choking her with his hand; 2) committed an act clearly dangerous to human life with the intent to cause serious bodily injury by using a stun gun on the victim; 3) intentionally caused the death of the victim in a manner and means unknown to the grand jury; and 4) committed an act clearly dangerous to human life and caused the victim’s death in a manner and means unknown to the grand jury. The jury charge tracked the indictment allowing the jurors to consider each manner and means in the disjunctive. Sanchez objected to the two “manner and means unknown” theories, claiming that they were unsupported by the evidence.
The Thirteenth Court of Appeals reversed for jury charge error.1 Judge Baird, sitting by assignment, explained that a trial court errs in authorizing a conviction under a legal theory where there is insufficient evidence to support a conviction under that theory. For example, when the State alleges that the manner and means of death is unknown, there must be some evidence to support this allegation. Applying the rule set out in Hicks v. State, Judge Baird noted that the State makes a prima facie showing to support this allegation when the testimony does not establish a cause of death, but the State must prove that the grand jury used due diligence in attempting to ascertain the cause of death when trial testimony does establish a cause of death.2 In this case, the medical examiner did give an opinion about the cause of death (though he was uncertain about the mechanism of death), so the trial court erred in authorizing the jury to convict Sanchez under a theory that the manner and means of death was unknown to the grand jury.
Hicks v. State is no longer good law
The Court of Criminal Appeals reversed, though perhaps not in the way anyone anticipated. Judge Womack, joined by everyone except Presiding Judge Keller and Judge Meyers, began by explaining that adoption of the “hypothetically correct” jury charge in Malik v. State rendered the Hicks rule no longer viable.3 Though it’s not explained in the opinion, the thinking here appears to be that Malik considers the sufficiency of the evidence to establish the elements of the offense (in this case, the “unknown” manner and means) under a hypothetically correct jury charge.4 Looking at the elements of the offense, the State is required to prove merely that the defendant either caused a death or committed an act clearly dangerous to human life that caused a death.5 Requiring the State to affirmatively prove something like a lack of diligence on the part of the grand jury seems to add an element to the offense and increase the State’s burden in contradiction of Malik.6 In this case, the evidence established that Sanchez had caused the victim’s death, the only sticking point was how he did it.
And there’s the rub. The court went on to explain that Hicks was bad law for other reasons. Hicks started out as a guide for “unknown” manner and means allegations and had morphed into a rule that affects both jury charges and the assessment of sufficiency of the evidence. The rule had lost its intent and focus, leading to easy misapplication.
See, Hicks was really about notice, according to the court. The basis for Hicks is that a defendant should not be surprised at trial by evidence without having had the time to properly prepare a defense. Additionally, the State should not be able to use “unknown” allegations “as a substitute for full investigation or as an adversarial ploy.” Because the Texas Constitution requires that “no person shall be held to answer” a felony charge without indictment by a grand jury, a rule that postpones an inquiry into the unknown until the trial is ineffective.
From there the court constructs a pre-trial evidence testing procedure with the manic precision of Bob Geldof piecing together a diorama made of various fragments of debris from his trashed hotel room in Pink Floyd’s The Wall. According to the court, a defendant may challenge the propriety of an “unknown” allegation contained in an indictment before trial, then later at the conclusion of evidence, though before the charge is read to the jury. The court explains that this will ensure that “unknown” allegations are truly “unknown” by allowing the elicitation of all evidence that is “now known” so that the “unknown” aspect of the case can be minimized or eliminated by amending the indictment or presenting a superseding indictment.
Clearly the court was concerned with a scenario where the State knows how a defendant caused a victim’s death but simply refuses to allege the manner and means in the indictment to keep all possibilities open. Of course, that is exactly the opposite of what the prosecution did in Sanchez. Remember, the prosecution alleged two different manner and means in the indictment before including the “unknown” allegations. Moreover, the court even recognizes in the opinion that there are statutory provisions that require a determination of a manner of death by either a justice of the peace or a medical examiner.7 Thus, it does seem that the court’s fears that the prosecution will be able to surprise the defense with a manner and means of death not alleged in an indictment are not present in Sanchez and may be completely unwarranted.
But more importantly, the court crafts this new pretrial evidentiary testing procedure to allay these concerns without any legal support. The court cites no authority, statutory or otherwise, that requires or even allows a pretrial hearing to determine if the State has evidence to support a possible manner and means allegation. Nor does the court attempt to square this holding with its own precedent that clearly prohibits a defendant from challenging the sufficiency of the evidence supporting an allegation in an indictment prior to trial.8 In essence, the court now appears to have created a pretrial hearing for the sole purpose of discovery. Yet, this aspect of the opinion isn’t the most confounding part of it.
Unknown or only mostly unknown
Turning to the question of whether there was jury charge error, the court started off by drawing a distinction between the cause of death, an element of the offense murder, and the manner and means of death, an adverbial phrase that is neither the gravamen of the offense nor an element that requires juror unanimity. From there, the court considered the “unknown” manner-and-means allegation and explained (in almost Miracle Max fashion) that there are really two kinds of “unknown.”9 There’s “unknown,” and then there’s “unknowable.” A manner and means of death is “unknown” when there is evidence that cannot be or has not yet been ascertained. A manner and means of death is “unknowable” when all the evidence has been ascertained, but you still can’t figure out how the murder was committed. So when the manner and means is unknown because there’s still evidence out there, then a jury charge on “unknown” is proper. In contrast, when the State has gathered everything it can and still can’t put its finger on how the death was caused, the jury should be instructed on the different possibilities for causing the death because there the manner and means is merely “unknowable.” As the court put it, “It is the difference between an open-ended question and a multiple-choice question” with “unknown” being the former and “unknowable” being the latter.
This distinction raises two obvious questions. First, is an unknown answer to a multiple choice question any less unknown than an unknown answer to an open-ended question? The repeated use of the word “unknown” in the question should suggest an answer. Sure, on a multiple-choice question you can try to game out some of the choices through elimination,10 but in the end a distinction between unknown and unknowable activity provides about as much guidance as a map drawn by M.C. Escher.11 The court allows the use of an “unknown” allegation where a medical examiner has not discovered all the evidence necessary to give a definitive statement regarding the manner and means causing a death. Yet the court does not allow an “unknown” allegation when the medical examiner has uncovered every possible explanation but still cannot definitively narrow down those explanations to one manner and means. The medical examiner in the former situation possesses no greater quantum of knowledge than the one in the latter, as neither can give a definitive explanation for how a defendant caused a victim’s death. Surely this new rule is as capable of being misunderstood and misapplied as the Hicks rule the court disavowed.
Second, and perhaps more practically, can this distinction be completely avoided by having the medical examiner acknowledge the possibility that the death could’ve been caused in some other manner unknown to him? Here, the medical examiner gave a very clear opinion that death had been caused either by manual strangulation or the use of a stun gun. However, had the medical examiner simply been asked if it were possible that the defendant caused the victim’s death in some other manner than those two possibilities, it appears that the inclusion of the “manner and means unknown” language in the jury charge would not have been error.
It’s also interesting to note that the court may have already been down a similar path before. In State v. Carter, the Court of Criminal Appeals noted that there are really “two types” of DWI offenses, a “loss of faculties” and a “per se offense.”12 The court got these two “types” from the legislature’s definition of the single word “intoxication.” After Carter, the court held that an indictment provided insufficient notice where it did not allege a specific definition of intoxication.13 However, the court also held in State v. Winsky that the State could plead each allegation in the disjunctive.14 But at least one court of appeals noted that pleading every possible “means of committing” the intoxication element of DWI provided no greater notice of the criminal behavior than a general allegation of a violation of the statute.15 It is no wonder that the court finally overruled Carter and held that simply pleading the word “intoxicated” provided sufficient notice to a defendant.16 Admittedly, the court reached this decision by drawing a distinction between intoxication offenses and other offenses, but the unworkability of the Carter distinction between types of intoxication does not bode well for this latest distinction between types of unknowns.
No harm, no foul
Ultimately, the Court of Criminal Appeals held that the trial court erroneously included the “unknown” allegations in the jury charge. However, the court also held that any error was harmless because there was sufficient evidence to support a jury verdict on at least one properly submitted alternate theory of prosecution. The medical examiner testified that he was 95-percent sure that the asphyxia was caused by manual strangulation. Sanchez was the only one in the room besides the victim and there were no other ways in or out. Under these facts, the court determined that any error in submitting the erroneous, “unknown” theories of prosecution did not result in actual harm to Sanchez.
How, you ask, would this type of error ever result in harm to a defendant where the trial court includes at least one viable manner and means allegation in the jury charge? Better to ask how many licks it takes to get to the center of a Tootsie Pop. The world may never know.
1 Sanchez v. State, 221 S.W.3d 769, 780 (Tex. App.—Corpus Christi 2007), rev’d, 2010 WL 3894640 (Tex. Crim. App. Oct. 6, 2010).
2 Hicks v. State, 860 S.W.2d 419, 424 (Tex. Crim. App. 1993). This is that rule that requires the State to call a member of the grand jury to testify about the actions the grand jury undertook to determine the cause of death.
3 Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).
4 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
5 Tex. Penal Code Ann. §19.02 (Vernon 2003).
6 Malik, 953 S.W.2d at 240 (“Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”).
7 See e.g. Tex. Code Crim. Proc. Ann., art. 49.04 (Vernon 2006); Tex Code Crim. Proc. Ann., art. 49.25 (Vernon 2006).
8 See e.g. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994)(op. on reh’g).
9 The Princess Bride, 20th Century Fox (1987)(“Whoo-hoo-hoo, look who knows so much. It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.”).
10 The answer is almost never E.
11 See e.g. http://en.wikipedia.org/wiki/Relativi-ty_(M._C._Escher).
12 State v. Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991).
13 See e.g. State v. Flores, 878 S.W.2d 651, 653 (Tex. App—Corpus Christi, 1994), aff’d, 896 S.W.2d 198 (Tex. Crim. App. 1995).
14 State v. Winsky, 790 S.W.2d 641, 642 (Tex. Crim. App. 1990).
15 State v. Torres, 865 S.W.2d 142, 144 (Tex. App.—Corpus Christi 1993, pet. ref’d).
16 State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008).