Moulton v. State

• Decision Date: 01 February 2012
• Docket Number: No. 06–10–00100–CR.,06–10–00100–CR.
• Citation: 360 S.W.3d 540
• Parties: David Len MOULTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

360 S.W.3d 540

David Len MOULTON, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00100–CR.

Court of Appeals of Texas, Texarkana.

Submitted: June 8, 2011.Decided: Oct. 19, 2011.Rehearing Overruled Nov. 22, 2011.Discretionary Review Granted Feb. 1, 2012.

Jason L. Horton, Horton Law Firm, Texarkana, for appellant.

Clint Allen, Cass County Dist. Atty., Linden, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

David Len Moulton ¹ and Rebecca Moulton owned a home situated in a heavily wooded area. The property contains a pond which lies approximately 200–250 yards behind the house. Moulton found Rebecca floating in the middle of the pond, unresponsive, and called 9–1–1. Emergency medical personnel were unable to revive her, and she was pronounced dead at Atlanta Memorial Hospital. A jury convicted Moulton for the murder of Rebecca, his wife of sixteen years, and Moulton was sentenced to sixty years' imprisonment.

Moulton appeals his conviction on the ground that the trial court's jury charge, which allowed the jury to convict Moulton of intentionally or knowingly causing the death of Rebecca by asphyxiation by manner and means unknown to the grand jury, was erroneous where the evidence at trial was insufficient to establish that the manner and means was unknown. Moulton also complains that the trial court erred in refusing to quash the State's indictment, that his due process rights were violated because the State failed to disclose Brady material, and that the court erred in allowing a medical examiner to read to the jury inadmissible narratives contained in the investigative file. We agree with Moulton that the trial court's charge was erroneous, conclude the error was harmful, and reverse and remand the court's judgment on this basis only.

I. Factual BackgroundA. April 17, 2004—The Timeline

On the day of her death, Rebecca went to visit her parents, Carrel and Dean Byrum, who lived six to seven miles away. At approximately 5:30 p.m., Dean drove Rebecca back to her home. Rebecca and Moulton ordered a pizza. Moulton received a call from Ambrose James at around 5:50 p.m., requesting assistance for a tree trimming job. According to Moulton, the pizza arrived just as he was leaving for the tree trimming job.² Aaron Boatman, who delivered the pizza, confirmed that Moulton and Rebecca were both home during the delivery, which occurred around 6:30 p.m. According to Boatman, Moulton engaged in small talk, did not seem agitated, and Rebecca appeared well and free to move around. Moulton testified that Boatman “was sitting in his car counting the money when I got in my truck and drove off,” but Boatman, who never physically saw the front door close, believed Moulton went into the house after the pizza delivery.

Moulton met James at the tree trimming job, two and a half miles away. Moulton claimed to be at the job thirty to forty-five minutes at the most. Moulton returned home between 6:50 and 7:20 p.m. at the latest. Rebecca was not inside the home, although her vehicle was parked in front. She had a habit of going walking with her friends. According to Moulton, he “waited 15, 20 minutes till he got worried and started looking around” for her. Dean received a call from Moulton at 7:37 p.m. inquiring into Rebecca's whereabouts. Moulton suggested, “Well, maybe she's walking with [her friend] Leigh.” Moulton called Leigh Soloman's number, which “turned out to be a computer line.” He went looking for Rebecca because it was getting dark.

Moulton testified he walked to his truck, which was parked in front of the house, and honked the horn. When he heard no response, he drove to the back of the property on the road and honked the horn again. Moulton stated, “I got back in my truck and went down an old county road [driving trail] to the pond. I did not immediately see Rebecca because I was looking through the trees and they [sic] way I was parked, the dam and to the pond would block my view. I pulled up further and saw” Rebecca floating, face down, in the middle of the pond. Moulton also testified he

jumped out of the truck, ran around the dam and took my boots off and dove head first into the pond. I took maybe two strokes towards [Rebecca] and I rolled her over and I noticed that her lips were blue and her eyes were rolled back into her head. I started swimming back to the shallow end of the pond loosing [sic] her a couple of times because I was going under. I got her to the bank getting her halfway out.

He performed CPR for four to five minutes, retrieved his cell phone from his truck, and called 9–1–1. Below is the 9–1–1 conversation:

Dispatcher: 9–1–1. Do you have an emergency?

Moulton: Yes.

Dispatcher: What's going on?

Moulton: My wife, she's fell in the pond.

....

Dispatcher: Ok. Where are you?

Moulton: I'm David Moulton. I'm at 2610 South Williams.

....

Moulton: I can't get her out, hurry.

Dispatcher: Alright. I'm going to get somebody up there.

Advance firefighter and paramedic Daniel Camp responded to the call around 8:00 p.m., along with Tim Tolleson, who was driving an ambulance, and Captain Dale Godwin. Moulton, who appeared concerned, upset, panicked, and wet, said, “Help my wife, you've got to come and help my wife.” Moulton led the crew to Rebecca. Camp found that Rebecca “was laying on her back, probably about—the lower half of her body was still in the water, from waist—waist down.” With Moulton's assistance, 140–pound Rebecca was pulled out of the water, and CPR was started, but proved unsuccessful. The crew “put her on a backboard and into the back of [Moulton's] truck,” which was able to drive up the hill to the ambulance. Camp testified he did not suspect a neck injury and that there was no jugular vein distension or distortion or movement of the trachea. The emergency medical assessment was “[s]uspected accidental drowning.” Rebecca was taken to the hospital with Moulton in tow. Dean was notified at 8:05 p.m. that Rebecca was in an ambulance.

Moulton's recollection of what occurred when emergency personnel arrived differs from Camp's testimony in a few respects. First, Moulton said,

They went to putting her on a gurney, trying to climb up that hill, and they dropped her a couple of times. We put her in the back of my truck and I drove her up the hill right to the back door of the ambulance .... and then for about 15 or 20 minutes worked on her in the ambulance while I was ranting and raving to get her to the hospital because she needed to be in front of a doctor.

Camp and Godwin both testified that Rebecca was never dropped from the gurney. During interviews after her death, Moulton claimed that a small wound on Rebecca's neck was caused by a brass nipple on a C collar. But Camp testified that no C collar was placed on Rebecca.

Rebecca arrived at the hospital in “[f]ull arrest.” Based on what was known at the time, her medical records reflected “drowning victim found in pond,” and the mechanism of injury was listed as “drowning.” Moulton was soon joined at the hospital by various family members. When the Byrums arrived at the hospital “someone said, She choked on pizza and fell in the pond.” When asked to speculate, Moulton “thought she had drowned,” or may have been nauseated and/or choking on pizza when she fell in the pond. Rebecca's daughter Stephanie Diane Byrum testified that while in the hospital, Moulton told her, “I didn't think you would like me anymore.” “He just kept repeating, I'm so sorry.” Monique Irwin, Moulton's daughter from a prior marriage, also arrived at the hospital. She

asked [her] husband and [her] cousin to please take [Moulton] home because there were people who were drunk and making threats.

....

I know [Rebecca's] brother Ricky and his wife got into my face, very close proximity when I was standing next to my grandmother and called my dad bad names and saying that he killed her and those kinds of things.

Moulton went home, while other family members remained at the hospital.

B. The Investigation

Detective Mark West was called at 10:00 p.m. to begin an investigation of the incident. West called for Moulton to return to the hospital. While waiting, West photographed the body. On the back of Rebecca's legs, he noticed what appeared “to be a drag mark right here, mud,” and “what appeared to be an injury.” West obtained Moulton's statement recounting the evening's events. He was cooperative and invited West into his home. West confirmed Moulton had received the pizza and had met with James for the tree trimming job. However, West stated, “Later on, we learned that his—from another [unidentified] witness, he was there about ten minutes,” instead of the initial twenty to twenty-five minutes Moulton recited in his statement and thirty to forty-five minutes he testified to in his deposition. West also confirmed that Moulton had placed telephone calls to Dean and Leigh Soloman's number, which “turned out to be a computer line.” From what West could see, there was nothing out of place in the Moulton home, and he did not believe he had probable cause to search the home further.

West examined the pond area the next day. Hardly any evidence was retrieved since the scene had been trampled on by paramedics and family members who had been to the pond since Rebecca's death. The pond was approximately seven to seven and a half feet deep.³ “[T]here was no impression or anything where someone might have taken a fall into the pond” and no disturbances around the edge of the pond suggesting Rebecca had tried to crawl out. West remembered that no mud was present under her fingernails. He noted that she was wearing flip-flops to traverse the dense wooded area and leafy trail. To him, it did not appear as if Rebecca had just fallen in.⁴

C. Medical Findings/Initial Autopsy Report

The autopsy of Rebecca's body was supervised by Dr. Joni McClain. “The lateral sclerae of the right eye [was] hemorrhagic,” which McClain testified could be...