            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                         PD-0961-07


                              ORLANDO SANCHEZ, Appellant

                                               v.

                                   THE STATE OF TEXAS


                    On Discretionary Review of Case 13-03-698-CR of the
                                Thirteenth Court of Appeals,
                                      Hidalgo County


       WOMACK , J., delivered the opinion of the Court, in which PRICE, JOHNSON,
       KEASLER, HERVEY , HOLCOMB, and COCHRAN, JJ., joined. KELLER, P.J., concurred
       in the judgment. MEYERS, J., did not participate.


       The issues in this case arise from an indictment’s allegation that a murder was committed

by a “manner and means to the grand jury unknown.”

       One issue is whether the court’s charge that contained such language was in error when

there was a question whether the manner and means was actually unknown. In deciding this
                                                                                        (Sanchez - 2)

issue, we must address whether Hicks v. State,1 the case upon which the Court of Appeals relied,

is both applicable and controlling for “unknown” allegations. We decide that the Hicks rule is no

longer viable.

       Another issue is whether an error involving such a “manner and means to the grand jury

unknown” allegation requires reversal when it affected two of four alternative theories presented

in the jury charge.

        We find error in the jury charge, which we hold to have been harmless. We reverse the

judgment of the Court of Appeals and affirm the judgment of the trial court.

                                                 I. Background

                                             A. Summary of Facts

       Two guests in a motel room heard a woman screaming in an adjoining room and called

the police. When two police officers arrived on the scene, they heard a stun gun go off inside the

room in which the woman had screamed. The officers immediately entered the room and

discovered the appellant, Orlando Sanchez, lying next to the dead body of his girlfriend. She was

naked. Her neck and face were bruised, and there were distinctive marks of a stun gun on the skin

of her neck and chest. Police found a stun gun in the room and recovered its box from inside a

cowboy hat in the appellant’s truck, which was parked in front of the room. The windows in the

room were painted shut, and the only door to the room was barricaded by a piece of furniture.

Both the room and the truck were registered in the appellant’s name.




       1
           Hicks v. State, 860 S.W.2d 419, 424 (Tex. Cr. App. 1993).
                                                                                          (Sanchez - 3)

                                            B. Indictment

       The appellant was indicted for murder. In four disjunctive paragraphs, the indictment

alleged the appellant did then and there:

       (1) “intentionally and knowingly cause the death of [the victim] by choking her with his

       hand;”

       (2) “intentionally and knowingly cause the death of [the victim] by manner and means to

       the Grand Jurors unknown;”

       (3) “with intent to cause serious bodily injury to an individual . . . commit an act clearly

       dangerous to human life, to-wit: by placing a stun gun on the person of the said [victim],

       that caused the death of said [victim];” and

       (4) “with intent to cause serious bodily injury to [the victim], commit an act clearly

       dangerous to human life, to-wit: by manner and means to the Grand Juror[s] unknown,

       that caused the death of said [victim].”

                                C. Evidence of Manner and Means

       At trial, Dr. Fulgencio Salinas was the only medical expert to testify. He had written

“asphyxia by strangulation” on the autopsy report under cause of death, and he testified that the

cause of the victim’s death was asphyxia – the lack of oxygen to the brain.

       There was some confusion in terminology. Dr. Salinas repeatedly stated that the cause of

death was “asphyxia.” However, he also noted that he could not conclusively determine what

caused that asphyxia: manual strangulation or the stun gun.

       The appellant argued that Dr. Salinas could not determine the cause of death. The State

argued that he could determine the cause of death – simply not what caused that cause of death.
                                                                                          (Sanchez - 4)

There was much disagreement about whether Dr. Salinas knew or did not know what “killed” the

victim. Instead of differentiating “cause of death” from “manner and means” of death, both sides

focused on what “actually kill[ed]” the victim and how she died, making it unclear whether they

were pointing to a medical reason or a murder weapon.

       Dr. Salinas testified:

              The cause of death in this individual is asphyxia. And I think it’s asphyxia by
       strangulation.

               ***

               So anytime you apply pressure here in this particular region and squeeze – that’s
       all you need to do. Just squeeze in this area because the vessels that take blood up [to] the
       brain are located right there. They are very superficial and rather easy to squeeze and to
       block the oxygen going to the brain. You can also do another thing. You can also cover
       their mouth and their nose. It happens in babies a lot. And that’s another way you can
       cause asphyxia. So there [are] several mechanisms – in fact several ways of doing
       asphyxia strangulation. Those are the main ones . . . . But all the things I found were
       consistent with an asphyxia by strangulation.
               Okay. First of all, the cause of death is by asphyxia . . . the strangulation comes in
       later.

               [STATE]: You mean by hand – strangulation by hand – or by choking?

                [WITNESS]: By hand or by the arm. . . . Sometimes you can do it this way.
       Sometimes you can do it by putting this around them like this. So there [are] several ways
       of strangling somebody. . . . I said by the hand because that’s usually the most common
       thing that happens.
                My conclusion, once again, is asphyxia. That’s the main thing, asphyxia. The lack
       of oxygen to the brain that kills the person. Whether it was caused by strangulation or
       caused by stun gun I’m not 100 percent sure which one did it but the cause of death is
       asphyxia.
                She probably died of asphyxia. She died of asphyxia and I think it was by
       strangulation. . . . And maybe the stun gun had something to do with it. . . . I’m not sure
       if the stun gun actually killed her. . . . But I know she died of asphyxia by strangulation
       and the stun gun was used.”
                                                                                            (Sanchez - 5)

                                                   D. Jury Charge

       The jury was charged in the disjunctive, with the same four alternative methods of murder

that the indictment alleged. The appellant objected to the two “manner and means unknown”

theories because the allegations were unsupported by the evidence presented at trial and were

thus based on insufficient evidence to convict. The trial court overruled the objection.

       The appellant was convicted of murder and sentenced to sixty-eight years in prison.

                                                II. Court of Appeals

       On appeal to the Thirteenth Court of Appeals, the appellant raised four points of error.

The first two challenged the legal and factual sufficiency of the evidence to support the jury’s

verdict of guilty. The Court of Appeals held that, as to the first of the four alternative theories,

the evidence was “both legally and factually sufficient to prove appellant had the specific intent

to cause the decedent’s death and that she met her death by choking at the hands of appellant.”2

The sufficiency of evidence to convict has not been made an issue for discretionary review.

       The appellant argued, in his fourth point of error, that the trial court erred in submitting to

the jury the allegations in the second and fourth paragraphs of the indictment – the “unknown”

manner and means paragraphs. In its discussion on jury-charge error, the Court of Appeals stated,

“There are two broad scenarios in which a trial judge commits charge error when authorizing a

conviction based upon multiple theories of committing the same offense.”3 It cited Griffin for the

rule that charge error exists when “the trial judge authorizes the jury to convict on a theory of

conviction that is legally permissible, but there is insufficient evidence to support a conviction


       2
           Sanchez v. State, 221 S.W .3d 769, 774 (Tex. App.–Corpus Christi 2007).

       3
           Id., at 774, citing Griffin v United States, 502 U.S. 46, 59-60 (1991).
                                                                                                         (Sanchez - 6)

under that theory.”4 In determining whether the trial evidence was sufficient to warrant a charge

on the “unknown” theories, the Court relied on the rule stated in Hicks v. State that when an

unknown allegation is made in an indictment, the burden falls to the State either to present a

prima facie case at trial that the manner and means were actually unknown, or to prove (usually

by testimony) that the grand jury used due diligence to ascertain the manner and means of death.5

The appellant argued that the manner and means the appellant employed were not actually

unknown, and that the jury charge was erroneous in authorizing conviction on such a theory. The

State, however, argued that a prima facie case was made that the manner and means were indeed

unknown – since only the cause of death was known – and thus the charge was not erroneous.

         The Court of Appeals agreed with the appellant and found that the trial court erred when

it submitted the alternative methods of murder to the jury. The Court held that the manner and

means of death had been established at trial, and thus, the two “manner and means unknown to

the grand jury” paragraphs were erroneously included. Relying on Hicks, the Court held that

since the State failed to prove either prong of the Hicks test, then there was insufficient evidence

to submit the “manner and means unknown to the grand jury” theories to the jury.




         4
             Id., at 775, citing Griffin, 502 U.S., at 60 (emphasis in original).

         5
          Hicks, 860 S.W.2d, at 424 (“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. Matson v State, 819 S.W .2d 839, 847 (Tex. Cr. App. 1991). However, 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.”).
                                                                                                           (Sanchez - 7)

          The Court found that the appellant suffered “some harm”6 as a result and reversed the

conviction. The Court relied on Hutch v. State in assessing whether “any harm”7 had been

suffered, and considered “1) the charge itself; 2) the state of the evidence, including contested

issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other

relevant information revealed by the record of the trial as a whole.”8

         The common denominator in applying the four Hutch factors to the facts was the cause of

death. The State stressed that while unanimity is required to prove that the appellant murdered

the victim, how he did so need not require unanimity. The defense protested that Dr. Salinas was

unsure of the cause of death and was “speculating by saying she was strangled.”

         We granted the State’s petition for review on four grounds.9 The first three pertain to the

“manner and means unknown” charge and its applicable law, questioning the efficacy of Hicks.

The fourth pertains to harm suffered by the appellant as a result of the erroneous jury charge.




         6
             See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Cr. App. 1984).

         7
          Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Cr. App. 1996), citing Arline v. State, 721 S.W .2d 348, 351
(Tex. Cr. App. 1986).

         8
             Hutch, 922 S.W .2d, at 171.

         9
           “(1) Does a trial court commit error by instructing the jury on the State’s alternat[iv]e theory of murder by
a ‘manner and means to the grand jury unknown’ where the sole medical expert testified repeatedly that he could not
determine the exact manner and means of death by asphyxiation? (2) W hen assessing charge error, is a court of
appeals free to reweigh and reinterpret the evidence adduced at trial? (3) May an appellate court use the Hicks rule to
evaluate whether a ‘manner and means unknown to the grand jury’ theory was properly submitted to the jury and, if
so, has the Thirteenth Court of Appeals applied the rule correctly? (4) In the alternative, can an erroneously
submitted alternat[iv]e theory be harmful when the reviewing court finds the evidence sufficient to support the
conviction under another submitted theory?”
                                                                                                      (Sanchez - 8)

                                                III. The Hicks Rule

        We begin with the third ground for review to determine whether Hicks is the controlling

case in dealing with charge errors that stem from indictments which allege “unknown” manner

and means. The State questions both the use of the Hicks rule to evaluate unknown manner and

means, and the Court of Appeals’ application of it. The appellant argues that the Hicks rule is

still viable.

                                             A. Hicks and its progeny

        In Hicks, this Court held that “when an indictment alleges that the manner or means of

inflicting the injury is unknown”10 the burden falls to the State either to present a prima facie

case that the evidence was unknown to the grand jury, or to “incur… the additional burden of

showing that the grand jury used due diligence in trying to determine same.”11

        In Rosales v. State, this Court declared that “the rule in cases like Hicks is no longer

viable in light of our decision in Malik,”12 a case in which we held that “sufficiency of the

evidence should be measured by the elements of the offense as defined by the hypothetically

correct jury charge for the case.”13

        While the majority of the courts of appeals follow Rosales and Malik in citing Hicks as

the former, “disavowed” rule,14 others do not have such clear holdings.15 Even a few opinions

        10
             Hicks, 860 S.W .2d, at 424; see also Matson, 819 S.W .2d, at 847.

        11
             Ex parte Coleman, 940 S.W.2d 96, 98 n.1 (Tex. Cr. App. 1996).

        12
             Rosales, 4 S.W .3d, at 231.

        13
             Malik v. State, 953 S.W.2d, 234, 240 (Tex. Cr. App. 1997).

        14
            See generally Bermudez v. State, No. 13-05-246-CR, 2007 Tex. App. LEXIS 2809 (Tex. App.–Corpus
Christi 2007) (“The court of criminal appeals, however, has expressly disavowed the ‘due diligence’ rule cited by
appellant”); Fagan v. State, 89 S.W.3d 245, 249 (Tex. App.–Texarkana 2002) (“[T]he rule has lost its underpinning
                                                                                                            (Sanchez - 9)

from this Court have continued to discuss Malik and Hicks together, suggesting that Malik might

take the place of Hicks.16 Planter v. State17 discussed both cases when analyzing variances

between indictments and jury charges, while Gollihar18 expressly modified Malik’s holding,

citing Hicks in its analysis. While neither case expressly overrules Hicks on its face as Rosales

does, they both defer to case law stating that Hicks is indeed outdated without specifying a

reason.

          Although we said in Rosales that Hicks is no longer viable because of Malik, we can also

say that it is no longer viable for reasons not stated in Malik.19 Hicks and its progeny are not

simply about sufficiency of the evidence; they are about notice.20 Their basis is the premise that

defendants should not be surprised at trial by evidence without having had the time to properly

prepare a defense, nor should “unknown” allegations be used by the State as a substitute for full




as well as any reason for its existence”). W hile several of these cases are unpublished, we cite Bermudez for the
limited purpose of illustrating that most courts of appeals that cite Hicks are unpublished opinions, but do still follow
the Rosales and Malik line of cases which declare Hicks as “no longer viable.”

          15
            Compare In re A. J. G., 131 S.W.3d 687, 694 (Tex. App.–Corpus Christi 2004) (which holds that the
“due diligence” standard of Hicks was replaced by the “hypothetically correct jury charge” standard of Malik), with
Allen v. State, 149 S.W.3d 254, 257 (Tex. App.–Fort W orth 2004), Rose v. State, 76 S.W .3d 573, 575 (Tex.
App.–Corpus Christi 2002), and Richards v. State, 54 S.W .3d 348, 350 (Tex. App.–Houston 2001).

          16
          Planter v. State, 9 S.W .3d 156, 161 (Tex. Cr. App. 1999)(McCormick, J., dissenting); Gollihar v. State,
46 S.W.3d 243, 252-53 (Tex. Cr. App. 2001).

          17
               Planter, 9 S.W .3d, at 161.

          18
               Gollihar, 46 S.W .3d, at 252-53.

          19
            Judge Meyers points out in his concurring opinion to Rosales that the statement regarding the Hicks rule
as being “no longer viable in light of our decision in Malik” is mere dicta because the issue in Malik was resolved on
earlier grounds. Rosales, 4 S.W .3d, at 234 (M eyers, J., concurring), citing Brabson v. State, 976 S.W .2d 182, 186
(Tex. Cr. App. 1998).

          20
            “The grand jury’s failure to determine the manner and means must be pled in the indictment in order to
give notice to the defendant.” Garrett v. State, 682 S.W .2d 301, 308 (Tex. Cr. App. 1984).
                                                                                                           (Sanchez - 10)

investigation, or as an adversarial ploy, or to avoid the requirement of indictment by a grand

jury.21

          However, this rule, which began as a guide for “unknown” manner and means in

indictments, has morphed into a rule that can affect jury charges and assessments of sufficiency

of evidence (including variances and hypothetically correct jury charges). The rule seems to have

lost both its intent and its focus, and as a result it easily can be misunderstood and misapplied.

                                                   B. Application

          In this case, the point of error at the appellate level was jury-charge error and not

sufficiency of evidence.22While the Court of Appeals was correct in attempting to distinguish

Hicks based on sufficiency of evidence, Hicks and its progeny have provided such nebulous

guidance that the Court misplaced its reliance on the rule.

          Even if the Court had properly relied on Hicks, it misapplied the rule. When the Court of

Appeals stated that the State must prove the “unknown” allegation by making a prima facie

showing that “the cause of death was unknown to the grand jury,” it analyzed the wrong

evidence.23

          In Hicks, the appellant was indicted for capital murder for causing the death of the

decedent by beating and striking her with a blunt instrument in the course of committing a sexual




          21
            See T EX . C O N ST . art. I, § 10 (“[N]o person shall be held to answer for a criminal offense unless on an
indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the
penitentiary … ”).

          22
            On direct appeal, the appellant did raise separate sufficiency of evidence points of error, which were
rejected by the Thirteenth Court of Appeals.

          23
               Sanchez, 221 S.W .3d, at 776.
                                                                                                             (Sanchez - 11)

assault.24 What was “unknown” in that case was the actual murder weapon, or the “instrument of

death,”25 which was the “manner and means.” The medical expert in Hicks testified that, although

the victim’s injuries were consistent with her being struck with a hammer, there was no way to

say conclusively that the hammer was the murder weapon.26

         In the instant case, the Court of Appeals, perhaps observing factual similarities between

the two cases, inappropriately applied Hicks to the “cause of death.” Because the “unknown”

allegation was the “manner and means” and not the “cause of death,” the Court erred in its

analysis.

         Hicks’ requirement of proving “unknownness” of an allegation achieves nothing. If one

purpose of the rule is truly to give the defendant notice before trial, requiring proof of the

“unknownness” of an allegation after the trial has begun – and it no longer possible to give

timely notice – is “close to bizarre.”27

         While Rosales does inform us that Hicks is no longer viable because of Malik, we also

have found that it is no longer viable for reasons not expressly stated in Malik.28


         24
              Hicks, 860 S.W .2d, at 421.

         25
              Id., at 424.

         26
              Id., at 425.

         27
             Rosales, 4 S.W .3d, at 236 (W omack, J., concurring) (“Our past requirement that this allegation be
proved at trial is not justified. The only substantial rights of the defendant that could be denied by such an allegation
are the rights to indictment by a grand jury in a felony case and to notice of the nature and cause of the accusation.
These are requirement for the State’s pleading, which are appropriately raised and decided before trial. The remedy
for the grand jury’s lack of diligence in discovering and alleging the means of committing the offense would be to
sustain an exception to the indictment. The notion that this allegation creates an issue of fact to be proved to the trial
jury is close to bizarre.”).

         28
            Judge Meyers pointed out in his concurring opinion to Rosales that the statement regarding the Hicks rule
as being “no longer viable in light of our decision in Malik” was mere dicta because the issue in Malik was resolved
on earlier grounds. Rosales, 4 S.W .3d, at 234 (M eyers, J., concurring), citing Brabson v. State, 976 S.W .2d 182, 186
(Tex. Cr. App. 1998).
                                                                                         (Sanchez - 12)

        We also observe that, if another purpose of the rule is obedience to the Texas

Constitution’s requirement that “no person shall be held to answer” a charge of felony without

indictment by a grand jury,29 a rule that postpones the “unknowness” inquiry until the trial is

ineffective.

        Thus, we overrule the two-pronged rule in Hicks and announce a new standard for

indictments with “unknown” allegations to the grand jury that are subsequently used as the jury

charge at trial:

        Where the State has alleged “unknown” manner and means in the indictment and/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 evidence, but

before the charge is submitted to the jury.

         The first question (whether raised before or during the trial) is whether the defendant was

given proper notice so that he could properly prepare for trial. The second question is whether an

“unknown” allegation in the indictment should be replaced by language in the charge that

requires a particular fact to be found in order to convict.

        The pre-trial hearing will ensure that the “unknown” allegation was truly unknown to the

grand jury and is not being used to surprise or manipulate the defendant at trial. This hearing

replaces the Hicks test, but does not require proof of “unknownness” at trial. Instead, it permits

hearings that will, at the very least, elicit all evidence that is now known so that the “unknown”

aspect of the case can be minimized or eliminated by amendment of the indictment or the

presentation of a superseding indictment.


        29
             See n. 21, supra.
                                                                                                           (Sanchez - 13)

         Similarly, a post-evidentiary hearing is available to the defendant by request after the

evidence has been presented and both sides have rested, but before the jury is charged. If the

“unknown” allegation has become known through the evidence presented at trial, it might still

have been unknown to the grand jury as stated in the indictment. If this is the case, then the

“unknown” allegation has since been discovered and made known. This additional hearing will

force both sides to revisit the “unknown” allegation from the indictment, and clarify that it is

either known, “unknown,” or unknowable, before the court completes its charge to the jury.

         Our opinion should not be read to restrict or alter the use of the “unknown” allegation in

an indictment. This new standard merely provides the opportunity to avoid confusion and error in

the jury charge with respect to unknown allegations.

         We wish to note that an error or failure to provide a hearing will not entitle the appellant

to an acquittal.30 The remedy would be a new trial.

                                         IV. Discussion of Jury Charge

                                               A. Was There Error?

         In its first ground for review, the State argues that the trial court did not err when it

instructed the jury on the State’s alternative theory of murder by a “manner and means to the

grand jury unknown,” because the medical expert testified that he could not determine the exact

manner and means of death by asphyxiation. The appellant argues that because the expert

testified that the decedent died from asphyxia by either the stun gun or strangulation, then the

cause of death was known and that submitting the charge to the jury was in error. In its second



         30
             Malik, 953 S.W .2d, at 240. (“[A] judgment of acquittal is reserved for those situations in which there is
an actual failure in the State’s proof of the crime rather than a mere error in the jury charge submitted.”).
                                                                                                  (Sanchez - 14)

ground for review, the State questions the ability and authority of a court of appeals to “reweigh

and reinterpret the evidence adduced at trial.” In another ground for review, the State argues that

an erroneously submitted alternate theory is not harmful when the reviewing court finds the

evidence sufficient to support a conviction under another submitted theory.

        In the trial court and the Court of Appeals, the terms “cause of death” and “manner and

means” of death were sometimes used interchangeably in discussions of how the victim was

killed. This can confuse the issues. Further confusion can result from the terms’ different

meanings in medicine and law.

        In medicine, every death is in one of four “manners”: natural, accidental, homicidal, or

suicidal.31 Only in deaths that are not natural – that is, accidents, homicides, and suicides – is the

“means” of death an issue.32

        These terms may appear in law. For example, Article 49.04(a) of the Code of Criminal

Procedure requires a justice of the peace to conduct an inquest into a death if:

                (2) the person dies an unnatural death from a cause other than a legal execution;
                (3) the body or a body part of a person is found [and] the cause or circumstances
        of death are unknown …;
                (4) the circumstances of the death indicate that the death may have been caused by
        unlawful means;
                (5) the person commits suicide or the circumstances of the death indicate that the
        death may have been caused by suicide; [or]
                …
                (6) the person dies while attended by a physician who is unable to certify the
        cause of death and who requests the justice of the peace to conduct an inquest ….”



        31
            Harris County Medical Examiner’s Office, “Information: Manner of Death” (undated). See National
Association of Medical Examiners and The College of American Pathologists, “Medical-Legal Death Investigation
and Autopsy” (2003) (defining “Manner of Death” as “The circumstance surrounding a death, such as: natural,
accident, suicide, homicide, undetermined, or pending.”).

        32
             See id.
                                                                                                       (Sanchez - 15)

        The use of the term “manner of death” is not the same in the criminal procedure of this

state as it is in medicine.

                                            1. “Manner and Means”

        In the criminal law, the term “manner and means” refers to the actus reus – the voluntary

engaging in conduct – “including an act, or omission, or possession.”33 “The use of the

prepositional word ‘by’ in either a statute or an indictment is a tip-off that probably . . . the

phrase will be a description of how the offense was committed.”34 In other words, the “manner

and means” is the act that leads to the medical determination of “cause of death.” Thus,

“[g]enerally, adverbial phrases, introduced by the preposition ‘by,’ describe the manner and

means of committing the offense. They are not the gravamen of the offense, nor elements on

which the jury must be unanimous.”35

        The manner and means of death may also include the weapon that is “the instrumentality .

. . responsible for the deceased’s death.”36 Neither the manner – the actus reus – nor the means –

the “instrument of death”37 – need be found unanimously by a jury.38




        33
             P EN AL C O D E § 6.01(a).

        34
             Jefferson v. State, 189 S.W.3d 305, 315 (Tex. Cr. App. 2006) (Cochran, J. concurring) (emphasis added).

        35
             Id., at 316.

        36
             Hicks, 860 S.W .2d, at 425.

        37
             Id., at 424.

        38
           See Schad v. Arizona, 501 U.S. 624, 111 (1991); Jefferson, 189 S.W .3d, at 315; Ngo v. State, 175
S.W .3d 738, 746 (Tex. Cr. App. 2005); Kitchens v. State, 823 S.W .2d 256, 258 (Tex. Cr. App. 1991).
                                                                                                     (Sanchez - 16)

                                         2. “Unknown” Allegations

        Indictments may allege that a fact is “unknown.” The fact may later become known,

which might require an indictment to be amended. However, in a jury charge, “manner and

means to the grand jury unknown” may be either unknown evidence, or unknowable evidence.

Some opinions have been unclear in how to approach these cases.”39

        “Unknown” evidence is evidence that cannot be or has not yet been ascertained, such as a

murder weapon or perhaps even the cause of death. “Unknowable” evidence, however, differs

from the failure to find evidence. It is evidence that has been ascertained, but cannot be

comprehensively known. In essence, it is the difference between an open-ended question and a

multiple-choice question which gives several options to the finder of fact. When all evidence that

can be produced is produced, but it is impossible to determine manner and means, then the

manner and means is “unknowable.”

                                                3. Application

        In this case, we have both an indictment and a jury charge with “manner and means

unknown” allegations. At trial, the State and the appellant argued over “what killed” the victim:

asphyxia, strangulation, choking, or the stun gun. The State argued that the cause of death was

asphyxia, through the testimony of Dr. Salinas, while the appellant argued that it was

strangulation or the stun gun.

        Based on Dr. Salinas’s testimony and the aforementioned definitions, the cause of death

is known as asphyxia, but the “manner and means” that caused the asphyxia appears to be what is


        39
          See generally Sanchez, 221 S.W .3d 769 (Tex. App. - Corpus Christi 2007, pet. dism’d). This court’s
unpublished opinion in Barbee v. State, 2008 Tex. Crim. App. LEXIS 900 (slip op. at 15) is an example of the term
“unknown” being interpreted in different ways.
                                                                                                         (Sanchez - 17)

“unknown.” Where the Court of Appeals erred in this case was in its interpretations of the

“unknown” allegations: “cause of death” or “manner and means” of death. We believe that Dr.

Salinas’s testimony expressly said that the cause of death was asphyxia, but what caused the

asphyxia was at issue. It could have been manual strangulation, ligature strangulation, blocking

the air passages, or the use of the stun gun, or even any combination of these methods. The

evidence does not show definitely that the victim died either by choking or by stun gun, as the

Court of Appeals found. Instead, the evidence shows that the victim died by asphyxia (loss of

oxygen to the brain) and that the cause of that asphyxia was “unknown.” Since “cause of death”

is a medical term, the State need not prove that the appellant “asphyxiated” the victim. Rather,

the State must prove the legal element of the crime, which is that the appellant caused the death

of the victim. And when Dr. Salinas testified, “I know she died of asphyxia by strangulation and

the stun gun was used,” he confirmed that cause of death. He did not confirm the “manner and

means” of death, or in other words, what caused the cause of death. The “manner and means”

was either by strangulation or by the stun gun, or even by a combination of the two.40 Both

“strangulation” and “the stun gun” are mentioned after the preposition “by,” which indicates that

they are the manner and means that is the issue for the jury.41

         Having decided that it is the manner and means of death that is in question, we must next

determine if the manner and means were unknown or unknowable. There would be an inherently

unknowable aspect to this case if all the relevant evidence was presented. Based on the record


         40
             It is of concern to the Court that neither the indictment nor the jury charge lists manual strangulation,
ligature strangulation, use of a stun gun, or a combination of strangulation and the use of a stun gun as potential
manner and means of death. Since these are the only options by which the asphyxia could have occurred under these
facts, the jury charge could have been amended and no error would have resulted.

         41
              See Jefferson, 189 S.W .3d, at 316.
                                                                                        (Sanchez - 18)

and the testimony of Dr. Salinas, we understand that it is not possible to conclusively determine

the manner and means of the asphyxia. According to the testimony, it is possible that

strangulation alone, the stun gun alone, or the combination of the two were sufficient to kill an

individual.

       Dr. Salinas testified:

       The main thing with these stun guns – the theory behind them is that they will
       release a very powerful amount of electricity in voltage and this type of voltage
       will cause paralysis of the muscles and you can’t move. In theory it sounds great.
       There is one problem with voltage and – it can stop your heart and it can stop your
       breathing, you know, if that happens and such voltage is kind of high. There is
       something that is very important as far as electricity and that’s amperage. And
       amperage and voltage go along together. You see, if you have very high voltage –
       like this one is 200,000 volts according to the thing here. And yet you have a very
       low amperage – amperage is current passing through – that’s allowed to pass
       through. And what stops and what gives you good amperage is your skin. So
       anytime you have skin that is nice and flat and dry, you have very low amperage.
       But if you place one of these things with very high voltage and an individual who
       is standing in water or has water or has a break in the skin by whatever mechanism,
       then that gives you a very high amperage. So if you break the skin, you’ve got a
       problem with electricity. It’s going to pass through and it’s going to kill you. There
       is a possibility that this may have happened in this particular case. It might be a
       problem – if it stops your heart and lungs then you end up with asphyxia. So
       regardless you’re going to die of asphyxia whether it’s by strangulation or by this –
       by this apparatus. It’s still asphyxia.

       There was no lack of evidence presented at trial, nor a lack of diligence on the part of the

grand jury to ascertain the evidence. All evidence was presented that could have been presented.

We are not saying that the manner and means were known; rather that they were not entirely

unknown. Thus, we do not have unknown manner and means. Rather, we have unknowable

manner and means – a known choice of several options as opposed to no evidence and no

options.
                                                                                          (Sanchez - 19)

       Since there was no failure to find evidence, and since the evidence presented a choice of

several options to prove manner and means, then the cause of death was, at worst, merely

“unknowable,” and the jury charge should have been amended to give the jury a choice to find

one or several of the possible causes – or, of course, to find that the evidence was insufficient to

prove the cause of death.

       The jury charge was erroneous because the indictment contained an allegation of “manner

and means to the grand jury unknown,” when the manner and means were not truly unknown.

       We next must determine whether the error harmed the appellant.

                                                4. Harmless Error Analysis

                                                         A. Settled Law

       Unobjected-to error in the charge will not result in a reversal “unless it was so egregious

and created such harm that [the] appellant was denied a fair trial.”42 “The actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence, including the

contested issues and the weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.”43 The appellant must have

suffered actual, rather than theoretical, harm.44 If an error is preserved with a timely objection,

then the result would be a reversal if the appellant suffered “some harm” as a result of the error.45




       42
            Almanza, 686 S.W .2d, at 171.

       43
            Id.; see also C O D E C RIM . P RO C . art. 36.19.

       44
            Arline, 721 S.W .2d, at 352.

       45
            Almanza, 686 S.W .2d, at 171.
                                                                                                         (Sanchez - 20)

If no objection was timely made at trial, then an appellant must claim that the error rose to

“egregious harm,” in order to obtain a reversal.46

        When looking at harmless error in a jury charge with alternative theories, we also look to

Atkinson v. State, which measures the harm “at least in part, against the likelihood that the jury's

verdict was actually based upon an alternative available theory of culpability not affected by

erroneous portions of the charge.”47 “[T]he presence of overwhelming evidence of guilt plays a

determinative role in resolving the issue,” and is indeed a factor that can be considered when

looking at jury charge error.48

        When a jury returns a general guilty verdict on an indictment charging alternate methods

of committing the same offense, the verdict stands “if the evidence is sufficient to support a

finding under any of the theories submitted.”49 If the evidence is sufficient to support a finding of

guilt based on at least one of the alternative theories, the verdict stands.50 Thus, even if one of the

alternative theories was erroneously submitted to the jury, a conviction may still stand if found

under another submitted theory.

                                                    B. Application

        The Court of Appeals did not analyze harm under Almanza and Atkinson and thus erred in

its analysis.


        46
              Id.

        47
            Atkinson v. State, 923 S.W .2d 21, 27 (Tex. Cr. App. 1996), overruled on other grounds by Motilla v
State, 78 S.W .3d 352 (Tex. Cr. App. 2002).

         48
              Harris v. State, 790 S.W.2d 585, 587 (Tex. Cr. App. 1989).

        49
              Kitchens v. State, 823 S.W .2d 256, 258-59 (Tex. Cr. App. 1991).

        50
              Rosales v. State, 4 S.W .3d 228, 231 (Tex. Cr. App. 1999); Kitchens, 823 S.W .2d, at 258-59.
                                                                                                        (Sanchez - 21)

        The Court relied on Hutch v. State, which did not address a situation in which alternative

theories of culpability were submitted. Rather, Hutch applied an Almanza harm analysis to a jury

instruction regarding police testimony in an illegal search and seizure case.51 In Hutch, a police

officer stopped a vehicle because he claimed neither the driver nor the passenger were wearing

seatbelts. When the passenger leaned forward, dropping an object on the floor, the officer

discovered cocaine.52 Applying Article 38.23 of the Code of Criminal Procedure, the trial court

instructed the jury that if they believed that the appellant was not wearing a seatbelt, then the

detention was unlawful, and then they must disregard the officer’s testimony.53 This Court held

that “a defendant is entitled to be convicted upon a correct statement of the law. In the instant

case, the erroneous instructions had the effect of instructing the jury on the opposite of what the

law actually is.”54

        Hutch is distinguishable from the case at bar for several reasons. First, the charge in this

case did not instruct the jury on the “opposite” of what the law is; it should have simply been

omitted or clarified. Additionally, in Hutch, the erroneous charge instructed the jury on law that

was simply wrong.

        In this case, the erroneous jury charge has no impact on the outcome because there is

sufficient evidence based on one of the theories to allow the verdict to stand.55 Secondly, the



        51
             Hutch, 922 S.W .2d, at 172.

        52
             Id., at 169.

        53
             Id.

        54
             Id., at 174, emphasis added.

        55
             See Rosales v. State, 4 S.W .3d 228, 231 (Tex. Cr. App. 1999); Kitchens, 823 S.W .2d, at 258-59.
                                                                                         (Sanchez - 22)

Hutch jury charge instructed the jury to “ignore the police officer’s testimony.”56 In the case at

bar, there is no charge to ignore any testimony. Third, the standards in analyzing harmless error

are different. Hutch was using an “egregious harm” standard for errors that have not been

properly preserved at trial, while in the case at bar, we apply the Almanza standard of “some

harm”57 for preserved error. And fourth, and most importantly, the charge in Hutch did not deal

with alternate theories of prosecution, where at least one theory provides sufficient evidence to

convict, which is true in the instant case.58

        In the instant case, the Court of Appeals erroneously applied a Hutch harm analysis,

considering “other relevant information revealed by the record,” and focused on the theory that

“the charge error wholly undermined the defensive theory, i.e. the State’s failure to prove cause

of death.”59 This is another area where the Court of Appeals erred. The State did prove cause of

death, but not “manner and means” of death, and thus the Court of Appeals misinterpreted the

evidence, not only in its charge analysis, but also in its harm analysis.

        Based on the record and the rules dictated in Almanza and Atkinson, we believe that the

evidence presented did not result in “actual harm” to the appellant.60 The evidence was sufficient

to convict based on one of the alternate theories in the jury charge other than “unknown” manner

and means. The medical expert testified that he was 95 percent sure that the asphyxia was the



        56
             Hutch, 922 S.W .2d, at 172.

        57
             Almanza, 686 S.W .2d, at, 171

        58
             Rosales, 4 S.W .3d, at 231; Kitchens, 823 S.W .2d, at 258-59.

        59
             Sanchez, 221 S.W .3d, at 779.

        60
             Arline, 721 S.W .2d, at 348.
                                                                                          (Sanchez - 23)

result of manual strangulation. Because the appellant was found lying next to the decedent in a

motel room registered under his name, with his truck parked in front of the room, and there were

no alternative means of entering or exiting the room, the evidence is overwhelmingly in support

of a conviction – regardless of the charge expressing some “manner and means unknown to the

grand jury.” Counsel did not focus on the “manner and means unknown” argument during the

trial, thus diffusing its impact on this review. Instead, counsel confused the evidence with respect

to “cause of death” and “manner and means” of death, thus arguing that “cause of death” was the

unknown aspect of the case. As previously stated, this is a misinterpretation of the evidence.

Based on the jury charge, it was the manner and means that were unknown – not the cause of

death. Since we have already held that the manner and means were “unknowable,” then the jury

charge was in error. Since the evidence is sufficient to support a finding of guilt based on at least

one of the alternate theories, the verdict stands.61

                                                   V. Conclusion

        In viewing the record as a whole, we find the charge error harmless in nature. We vacate

the judgment of the Court of Appeals and affirm the judgment of the trial court.


Delivered October 6, 2010.
Publish.




        61
             Rosales, 4 S.W .3d, at 231; Kitchens, 823 S.W .2d, at 258-59.
