            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1889-11



                          DAVID LEN MOULTON, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SIXTH COURT OF APPEALS
                          CASS COUNTY

       A LCALA, J., filed a dissenting opinion in which P RICE and J OHNSON, J.J., joined.

                                 DISSENTING OPINION

       The court of appeals reversed the conviction of David Len Moulton, appellant, who

was convicted of killing his wife, Rebecca Moulton, who was found dead in a pond on their

property. Moulton v. State, 360 S.W.3d 540, 543 (Tex. App.—Texarkana 2011). The majority

opinion reverses the court of appeals by finding no error in the jury charge. I respectfully

dissent for two reasons. First, because the court of appeals has not had the opportunity to

consider this case in light of this Court’s opinion on rehearing in Sanchez v. State, we should
                                                                           Moulton Dissent - 2

remand this case to afford the court that opportunity. See Sanchez v. State, 376 S.W.3d 767

(Tex. Crim. App. 2012). Second, I disagree with the majority opinion’s holding on the merits

that the trial court properly instructed the jury to convict if the evidence proved

“asphyxiation by means unknown to the grand jury.” I find that this instruction is erroneous

in its reference to the grand jury, but conclude that the error is harmless.

           I. This Court Should Remand the Case to the Court of Appeals

       The court of appeals analyzed this case under this Court’s original opinion in Sanchez,

but, since then, we have withdrawn that opinion and issued a materially different opinion on

rehearing. Compare Sanchez v. State, No. PD-0961-07, 2010 Tex. Crim. App. LEXIS 1242

(Tex. Crim. App. Oct. 6, 2010) (orig. op.), with 376 S.W.3d 767 (Tex. Crim. App. 2012) (op.

on reh’g). The original opinion focused on whether the manner and means were unknown

or unknowable, but the opinion on rehearing abandoned that distinction and focused on the

hypothetically correct jury charge based on the evidence actually introduced at trial. See

Sanchez, 376 S.W.3d at 772-73; see also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). In the Sanchez opinion on rehearing, we expressly overruled the Hicks rule,

which had required evidence regarding what the grand jury knew at the time it issued the

indictment when the indictment alleged that the manner and means of inflicting the injury

was unknown. See Sanchez, 376 S.W.3d at 771-72 (overruling Hicks v. State, 860 S.W.2d

419 (Tex. Crim. App. 1993)). We held that, because the evidence in that case supported “only

a limited list of known alternatives for the manner and means of the cause of death,” the jury
                                                                                Moulton Dissent - 3

charge erroneously permitted the jury to convict Sanchez by referring to an unknown manner

and means. Id. at 774. The court of appeals tailored its analysis to our original opinion in

Sanchez and did not have the benefit of our opinion on rehearing in that case. Moulton, 360

S.W.3d at 555-63.

       The materiality of the original Sanchez opinion to the court of appeals’s analysis in

this case is evident in that three of the four grounds that we granted in appellant’s petition

for discretionary review refer to it expressly by name.1 It is ironic that this Court’s majority

opinion reverses the court of appeals for its misapplication of Sanchez when the court of

appeals has never actually applied our Sanchez opinion on rehearing. Although the majority

opinion suggests that we must resolve the merits of this case in the interest of judicial

economy, this undermines our role as a court of last resort because we are not reviewing the

decision of the lower court, but rather are making an end run around it. I, therefore, dissent

from this Court’s decision to address the merits of this appeal rather than remanding the case




1
       Three of the four issues in appellant’s petition for discretionary review state,

       (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 an appellant barred from complaining about alleged Sanchez error that results
       from his strategic decision?

       (3) Does the reasoning of Sanchez apply outside the narrow confines of that case .
       . .?

The fourth issue challenges the court of appeals’s harm analysis.
                                                                                 Moulton Dissent - 4

to the court of appeals.

       II. The Jury Instructions Were Erroneous, But the Error Was Harmless

       Because the majority opinion addresses the merits of the case, I must also address the

merits to explain why I conclude that it errs in holding this jury instruction proper. I would

find the jury instructions erroneous but harmless.

       A. Error Analysis

       The majority opinion concludes that the manner and means are unknown because the

crime scene does not point to a conclusive list of possibilities.2 It states, “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.” The majority opinion then attempts to distinguish Sanchez by asserting that,

in Sanchez, there was a known list of alternatives, unlike the unknown alternatives here. See

Sanchez, 376 S.W.3d at 774. This determination not only mischaracterizes the evidence in

the record, but it also misunderstands the holding in Sanchez.3

2
        The majority opinion states, “[I]n this case, there is unlimited information that may be
unknown, because the crime scene does not point to a conclusive list of possibilities.” However, a
reviewing court should examine all the evidence and not just the crime scene, which may or may not
be relevant to the question of whether the manner and means are unknown. See Sanchez v. State, 376
S.W.3d 767, 774 (Tex. Crim. App. 2012).
3
          I agree with the Honorable Judge Cochran’s concurring opinion that, historically, this area
of the law was overly formalistic, but I believe that we have made great strides toward clarifying this
area. For example, we no longer have the Hicks rule, which had required the State to prove what was
known to the grand jury when it indicted a defendant. See Hicks v. State, 860 S.W.2d 419 (Tex.
Crim. App. 1993). We now require only that the jury instructions conform to the evidence adduced
at trial. See Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012). If the medical examiner
gives a finite list of possible manner and means of death, then the manner and means is not
                                                                                    Moulton Dissent - 5

        All three of the paragraphs in the charge alleging the manner and means of death

permitted the jury to convict appellant if the evidence proved that he (1) knowingly or

intentionally caused the death of the complainant and (2) caused the complainant’s death by

asphyxiation. Two of the three paragraphs specifically referred to asphyxiation, one by

stating, “by asphyxiation” by manual strangulation, and one by stating, “by asphyxiation by

means unknown to the grand jury.” The third paragraph, which stated that appellant caused

the death “by drowning [the complainant] in a pond[,]” also effectively required the jury to

find that he caused the death by asphyxiation because the evidence at trial conclusively

established that drowning is a form of asphyxiation. Thus, to convict appellant under any of

the theories submitted, the jury had to unanimously find that he knowingly or intentionally

caused the complainant’s death by asphyxiation. The only remaining question is whether the

jury charge was erroneous because one of the three paragraphs more particularly alleged that




unknown; it is known to be within the finite list. In this case, Dr. McClain’s testimony describing
her supplemental autopsy report gave a finite list of the ways in which the asphyxia could have
occurred. By contrast, if the medical examiner testifies that the manner or means of death is
unknown and cannot be limited to a finite list of possibilities, then the court should instruct the jury
accordingly. Here, Dr. Bux testified that the manner and means of death was entirely unknown, and
the original autopsy report contained similar conclusions. Either his testimony or the original autopsy
report would have provided the minimal evidence necessary to support the reference to the
“unknown” allegation. Therefore, the jury instructions properly alleged “unknown.” The present
law for jury instructions is not overly complicated, and, in fact, we have determined that, with
respect to the elements of an offense, it is ministerial in nature. See In re State ex rel. Weeks, __
S.W.3d __, No. AP-76,953, 2013 Tex. Crim. App. LEXIS 155, *13 (Tex. Crim. App. Jan. 16, 2013)
(not yet reported). All that is required of a trial court is to listen to the evidence and, if any evidence
supports the instruction, regardless of whether it is slight or its credibility questionable, give the
instruction that conforms to the evidence. See id.
                                                                               Moulton Dissent - 6

the asphyxiation was “by means unknown to the grand jury.” 4

       At trial, two medical experts testified, one for the State and one for the defense. The

State’s expert, Dr. McClain, performed the autopsy and prepared an original and amended

report. In her original report, which she prepared the day after the complainant died, she

characterized the cause and manner of death as “undetermined,” 5 but noted that it was

“suspicious for homicide.” She also added that “should additional information become

available, the cause and manner of death may be amended.” In her amended report, which

she prepared after there were additional investigative findings “pertaining to domestic

abuse,” she changed (1) the cause of death to “homicidal violence,” which she said meant

that “the actions of another person had caused the death of this individual,” and (2) the

manner of death to “homicide.”

       At trial, she explained that “the mechanism of death” was “asphyxia.” With respect

to the type of asphyxia, Dr. McClain stated,

       [T]he mechanism of death is some sort of asphyxia. Could be drowning, could
       be strangulation, could be suffocation. We can’t specifically pick which one[]

4
        The majority opinion mistakenly indicates that the indictment and jury charge alleged
unknown manner and means. The majority opinion states, “Therefore, the indictment correctly
alleged an unknown manner and means as well as all options supported by the evidence. Also,
because manner and means remained unknown at the conclusion of the evidence, the instruction on
unknown manner and means was properly submitted to the jury.” The language of the indictment,
which the jury charge tracked, stated, “asphyxiation by means unknown to the jury.” The only
“unknown” allegation was the “means” of death. Nothing in the indictment or jury charge alleged
that the manner of death was “unknown.”
5
        Dr. McClain testified that the “cause of death is why someone has died, lung cancer, gunshot
wound to the head, and then manner of death, there are various manners of death. There are naturals,
there are accidents, suicide, homicide, and the undetermined.”
                                                                                Moulton Dissent - 7

       because when you deal with an asphyxial type of death, the findings are very
       subtle. Could be drowning, could be strangulation, could be suffocation.

Dr. McClain limited the universe of the forms of asphyxia that could have occurred in this

case to only four possibilities when she testified,

       Asphyxia you’re not going to find much, so I think that’s the mechanism. I
       can’t tell you [1] if it was strangulation, [2] if it was suffocation, [3] if it was
       drowning, or [4] a combination of all three.

Because she testified to four possible forms of asphyxia that could have occurred in this case,

Dr. McClain’s testimony could not have supported the jury instruction as to “asphyxiation

by an unknown means.” Inclusion of a manner and means unsupported by the evidence was

precisely why we found the jury charge erroneous in our opinion on rehearing in Sanchez.

See Sanchez, 376 S.W.3d at 774.6

       But, unlike Sanchez, in which only one medical examiner testified about his consistent

findings regarding the cause of death, two examiners testified in this case, Dr. McClain and

the defense’s witness, Dr. Bux, and each of them, at some point in time, determined that the

manner and means of death were unknown. Dr. Bux testified that he agreed with the original

autopsy report’s conclusion that the manner of death was undetermined, explaining that he




6
       In Sanchez, we quoted the State’s expert who testified that the cause of death in that case was
asphyxia, which was defined as a lack of oxygen to the brain. See Sanchez v. State, 376 S.W.3d 767,
774 (Tex. Crim. App. 2012) (op. on reh’g). We also explained that what could not be more precisely
determined was whether the asphyxia was caused by strangulation, a stun gun, or a combination of
the two, but that these comprised “a limited list of known alternatives for the manner and means of
the cause of death.” Id. The limited list of known alternatives, therefore, rendered the manner and
means known.
                                                                              Moulton Dissent - 8

could not even determine whether it was a homicide.7 He disagreed with the amended

autopsy report that changed the classification of death from undetermined to homicidal

violence. More specifically, with respect to the medical findings, Dr. Bux disputed that any

medical findings supported the mechanism of death. He testified that he could not conclude

that the complainant was “manually strangled,” was “drowned in a pond,” or died “by

asphyxiation by an unknown means.” Dr. Bux’s testimony and the findings in the original

autopsy report each constitute some evidence that the complainant died “by asphyxiation by

means unknown.” The jury instruction, therefore, properly included this allegation.

       The jury instruction, however, permitted the jury to convict appellant if it determined

that the complainant died “by asphyxiation by means unknown to the grand jury.” Although

the evidence supported the allegation, “by asphyxiation by means unknown,” there is no

evidence as to what the grand jury knew regarding that allegation. Therefore, the four words

in the jury instruction, “to the grand jury,” were erroneous.8


7
       When specifically asked, “Do you think it’s plausible that it was a homicide?” he answered,
“I wouldn’t go there, no.”
8
        The Honorable Presiding Judge Keller’s concurring opinion observes that the “jury charge
need not ever specify the (non-statutory) manner and means by which a murder is committed or even
that the manner and means is unknown.” I think this statement is too broad because this Court has
held that, in some circumstances, the State may have to prove facts that it has alleged in an
indictment, even those that have elevated its burden of proof beyond what was statutorily required.
See Miles v. State, 357 S.W.3d 629, 644 (Tex. Crim. App. 2011) (requiring State to prove manner
and means alleged despite that exceeded statutory manner and means). Here, although this case does
not concern a challenge to the adequacy of the indictment, I note that the State pleaded more than
was necessary because it needed only to have alleged that appellant caused the death of the
complainant (the manner of her death was homicide and not an accident, suicide, or an undetermined
death) by asphyxiating her (the means of her death or why she died, such as cancer or a gunshot
wound). Whether he asphyxiated her by drowning, strangling, or by any other means is immaterial
                                                                             Moulton Dissent - 9

       As we observed in Sanchez, what was known to the grand jury is not the appropriate

question in deciding what the jury instructions should be. See id. at 772. Rather, the

appropriate question is whether some evidence in the record supports the jury instruction.

See id. at 773. Here, there is some evidence—Dr. Bux’s testimony and the findings in the

original autopsy report—that the asphyxiation was caused by manner and means unknown;

therefore, the trial court properly included that instruction, but it erred by referring to the

grand jury. See id.

       B. Harm Analysis

       In our Sanchez opinion on rehearing, we determined that the error was harmless in

light of the totality of the evidence. Id. at 774-75. The error in Sanchez was considerably

more material to the outcome than the error in this case because two of the four paragraphs

permitted convictions based on an alternative manner and means not supported by the

evidence. Those allegations referred to “manner and means to the Grand Jurors unknown,”

and the evidence undisputedly limited the manner and means to a list of known possibilities.

Id. at 774. Here, by contrast, because Dr. Bux testified, and the original autopsy report

showed, that the cause of asphyxia was unknown, the only error in the jury instruction was

the minimal reference to the grand jury.

       As we expressly stated in Sanchez on rehearing, “Neither the manner (the actus reus)


to what had to be alleged in the indictment and jury instructions. In this case, unlike evidence-
sufficiency review, we are reviewing the jury charge that was actually given and not the one that
should have been given. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). And the
one that was given erroneously included a reference to the grand jury.
                                                                           Moulton Dissent - 10

nor the means (the “instrument of death”) need to be agreed upon unanimously by a jury.”

Id. at 773. We clearly stated that the “jury need only unanimously agree that [a defendant]

caused the death of the complainant.” Id. at 774. Because each of the paragraphs permitting

the jury to convict appellant required it to find, beyond a reasonable doubt, that he caused the

death of the complainant by asphyxiation, the jury unanimously determined how the

complainant died, homicide, and the cause of her death, asphyxia. In light of this unanimous

verdict, I cannot conceive of how the four words in the charge referencing the grand jury

could have harmed appellant when his own expert testified that the manner and means of

death were unknown.

                                      III. Conclusion

       I would reverse and remand to allow the court of appeals to consider our opinion on

rehearing in Sanchez. See id. at 767. Alternatively, I would reverse the judgment of the court

of appeals and render a judgment affirming appellant’s conviction.




                                                                  Alcala, J.

Filed: March 6, 2013

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