Moulton v. State

• Decision Date: 06 March 2013
• Docket Number: No. PD–1889–11.,PD–1889–11.
• Citation: Moulton v. State, 395 S.W.3d 804 (Tex. Crim. App. 2013)
• Parties: David Len MOULTON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

395 S.W.3d 804

David Len MOULTON, Appellant

v.The STATE of Texas.

No. PD–1889–11.

Court of Criminal Appeals of Texas.

March 6, 2013.

Jason Lee Horton, Attorney at Law, Texarkana, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and KEASLER, HERVEY, and COCHRAN, JJ., joined.

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 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.”

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 woodedarea 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 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 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 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,⁴Hicks v. State,⁵Rosales 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 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 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 and means allegation. Finally, in its fourth ground for review, the State asserts that based on the state of the evidence, the court of...