Sanchez v. State

376 S.W.3d 767

Orlando SANCHEZ, Appellant

v.The STATE of Texas.

No. PD–0961–07.

Court of Criminal Appeals of Texas.

May 16, 2012.

Mark Alexander, McAllen, for appellant.

Theodore C. Hake, Asst. Crim. D.A., Edinburg, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION ON MOTIONS FOR REHEARING

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

On our own motion, we issue this opinion in the place of our October 6, 2010 opinion. Sanchez v. State, PD–0961–07, 2010 WL 3894640, 2010 Tex.Crim.App. LEXIS 1242 (Tex.Crim.App. Oct. 6, 2010). This opinion addresses the State's petition for discretionary review challenging the decision by the Thirteenth Court of Appeals on the appeal filed by appellant, Orlando Sanchez. See Sanchez v. State, 221 S.W.3d 769, 774 (Tex.App.-Corpus Christi 2007). Having withdrawn our former opinion, we overrule the State's motion for rehearing, overrule appellant's pro se motion for rehearing,¹ and dismiss appellant's attorney's motion for rehearing as untimely filed.

The Thirteenth Court of Appeals found harmful error in the phrasing of the jury instructions, reversed the conviction, and remanded for a new trial. We agree with the court of appeals that the instructions were erroneous, albeit for a different reason, but we conclude the error was harmless and, therefore, reverse the court's judgment.

I. Background

Police officers were called when a woman was heard screaming in a motel room. After they arrived at the motel, the officers heard the fire of a stun gun and a woman screaming inside a motel room. The officers immediately entered the room through the front door and discovered appellant lying next to a woman, who was pronounced dead at the scene. Her bruised body had markings on her neck and chest that appeared to be from a stun gun. The officers arrested appellant; he was the only person with the decedent in the room, which had no other accessible entry or exit other than the door through which the officers had entered. After appellant's arrest, the officers found the box for the stun gun inside his truck, which was parked nearby.

Appellant was indicted, and a jury trial ensued. Dr. Fulgencio Salinas, who performed the autopsy on the decedent, provided the sole evidence of the cause of the decedent's death. He said that the cause of her death was “asphyxia by strangulation.” He defined “asphyxia” as the lack of oxygen to the brain and other organs. He determined that the decedent “died of asphyxia by strangulation and the stun gun was used.” Although he could limit the possible manner and means by which the decedent was asphyxiated, he could not precisely determine whether she was asphyxiated by manually choking her with his hands, by smothering her, by the use of a stun gun, or by any combination of these.

In accordance with the wording of the indictment, the trial court's jury instructions permitted conviction of appellant for murder if the evidence proved that

(1) he intentionally or knowingly caused the death of the complainant by choking her with his hand;

(2) he intentionally or knowingly caused the death of the complainant by manner and means to the Grand Jurors unknown;

(3) he, with intent to cause serious bodily injury to an individual, committed an act clearly dangerous to human life by placing a stun gun on the person of the complainant that caused the death of the complainant; or

(4) he, with intent to cause serious bodily injury to the complainant, committed an act clearly dangerous to human life by manner and means to the Grand Jurors unknown that caused the death of the complainant.

Instructing on these four alternative manner and means, the trial court overruled appellant's objections that the two “manner and means unknown” theories should be excluded for lack of any evidence that the manner and means of death were unknown.

The court of appeals held that the trial court committed reversible error by permitting the jury to convict appellant on theories not supported by the evidence. See id. at 779–80. Citing this Court's decision in Hicks v. State, 860 S.W.2d 419 (Tex.Crim.App.1993), the court of appeals determined that the Hicks rule applied because two of the alternatives in the indictment had alleged that the murder was caused by manner and means unknown to the grand jury. Id. (citing Hicks, 860 S.W.2d at 424). It determined that Dr. Salinas's testimony explained that the cause of death was asphyxia and the manner and means of death was strangulation, either manually or by a stun gun or both. Id. After concluding that the record established known manner and means of death, the court of appeals faulted the State for not producing evidence that the grand jury had used due diligence in attempting to ascertain the cause of death when it issued its indictment alleging unknown manner and means. Id. The court noted that the State usually satisfies this burden by calling a member of the grand jury to describe what actions the grand jury undertook to determine the cause of death. Id. It then held that the jury instructions were erroneous because they permitted the State to convict under an unknown-manner-and-means theory when the evidence at trial established a known manner and means. Id.

We granted the State's petition for discretionary review on four grounds. The State's third ground, which we address first because it pertains to the law that should be applied to the error analysis, asks, “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?” See Hicks, 860 S.W.2d at 424. The State's first two grounds also pertain to the error analysis by asserting that the court of appeals misinterpreted the evidence in the record when it determined that the evidence showed that the manner and means were known.² Concerning the court of appeals's harm analysis, the State's fourth ground inquires whether “an erroneously submitted alternat[iv]e theory [can] be harmful when the reviewing court finds the evidence sufficient to support the conviction under another submitted theory?”

II. Hicks Is No Longer Viable After Malik³

In Hicks, the appellant contended that, because the indictment alleged that the instrument of death was unknown to the grand jury, the State was required to introduce evidence that the grand jury had used due diligence to ascertain the weapon used. Hicks, 860 S.W.2d at 424. This Court stated, “When 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.” Id. “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.” Id. In Hicks, we determined that, because the evidence at trial was inconclusive as to the instrumentality that was responsible for the decedent's death, the State did not need to provide evidence that the grand jury had used due diligence in attempting to ascertain the murder weapon. Id. This Court held that the evidence was sufficient by comparing it to the assertions in the jury charge actually given. Id.

The due diligence rule for reviewing the sufficiency of the evidence, as applied by Hicks, originated over a century ago. See Jorasco v. State, 6 Tex.App. 238 (Tex.Ct.App.1879). The indictment had alleged that Jorasco had unlawfully taken a horse from “some person to the grand jurors unknown.” Id. at 241. The Court explained that the pleading, which stated that the name of the person was unknown, was “sufficient, where the name of the injured party is unknown.” Id. Concluding that the indictment was “good,” the Court held that the motion to quash had been properly overruled. Id. The evidence was then examined for sufficiency. Id. The Court began by evaluating the evidence admitted at trial and concluding that it established that the horse had been taken from a known person, who had been identified by the witnesses. Id. at 243. Then, the Court compared the evidence to the allegations in the indictment and found they did not match. Id. The Court discussed decisions from England that had applied the rule that a fact finder can infer that the name of a complainant was unknown to the grand jury when the evidence at trial shows that the name of the person is unknown. Id. Furthermore, if the name of the person is disclosed at a trial, then “the jury will be justified in doubting whether it was unknown to the grand jury, unless some thing appears in the course of the evidence to remove the doubt and satisfy their minds.” Id. The Court faulted the State for failing to present evidence showing that the name of the complainant was unknown to the grand jury when it issued its indictment. Id. The Court held that the evidence was insufficient by comparing it to the assertions in the indictment. Id. at 244 (reversing judgment “[b]ecause the evidence does not sustain the indictment”).

Since Jorasco, which conducted the sufficiency review by comparing the evidence to the indictment, and Hicks, which conducted the sufficiency review by comparing the evidence to the actual jury charge, this Court has determined, in Malik v. State, that sufficiency review should be conducted by comparing the evidence to the hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.1997); Hicks, 860 S.W.2d at 425;Jorasco, 6 Tex.App. at 240. In Malik, this Court determined that, rather than comparing the evidence to the elements in the jury charge, “sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury...