Rosales v. State

MEYERS, J.,

delivered this concurring opinion.

The majority resolves point of error one by addressing the merits argued by appellant. Majority op. at 231 (concluding State proved “due diligence” under case law argued by appellant as controlling). Then the majority says, “in addition,” there is another reason to overrule appellant’s point of error. Id. (because jury charged in disjunctive, evidence is sufficient to prove victim killed with named weapon). Finally, the majority gives yet a third reason to overrule appellant’s point of error. Id. (rule argued as controlling merits “is no longer viable” in light of Malik). Having resolved the issue on the merits as argued by appellant, the Court’s second and third reasons for overruling the point of error are not necessary to the resolution of the case and therefore dicta. E.g., State v. Brabson, 976 S.W.2d 182,186 (Tex.Crim.App.1998)(referring to dicta as “unnecessary to [the Court’s] ultimate disposition of’ the case). 1

I am constrained to comment on some of the majority’s dicta, however, as it will no doubt be taken by some as having prece-dential value. In offering its third reason for overruling appellant’s point of error, the Court disavows a rule set forth in Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App.1998), cer t. denied, 512 U.S. 1227 , 114 S.Ct. 2725 , 129 L.Ed.2d 848 (1994), as no longer viable in light of recent case law. Majority op. at 231. The rule set forth in Hicks is quoted verbatim from an earlier opinion cited by appellant, Matson v. State, 819 S.W.2d 839 (Tex.Crim.App.1991). There, Presiding Judge McCormick, writing for a majority of the Court, set forth the rule that when an indictment alleges that the manner and means utilized to inflict the injury is unknown to the grand jury, but the evidence at trial shows what object was used to inflict injury, then the State has to prove the grand jury did not know the manner and means and used due diligence in attempting to ascertain it. Matson, 819 S.W.2d at 847 . Presiding Judge McCormick, again writing for a majority of the Court, now disavows in a single sentence the rule he set forth in Matson , which represents nearly one hundred years of case law:

In addition the rule in cases like Hicks [and Matson ] is no longer viable in light of our decision in Malik.

Majority op. at 231. No further explanation is given for the Court’s sweeping disavowal of Matson/Hicks case law. The Court appears to assume its actions are obvious by its reference to Malik.

In Malik, the trial court erroneously included in the jury charge an instruction on the legality of the defendant’s deten *235 tion, a matter which was neither alleged in the indictment nor which the State was required to prove in establishing the elements of the crime charged. Overruling former case law in which we measured sufficiency of the evidence by the jury charge actually given, we held that sufficiency of the evidence would thereafter be measured by a “hypothetically correct jury charge”:

Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.

Malik, 953 S.W.2d at 240. We emphasized that this new standard would ensure that judgments of acquittal would be reserved for 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.” Id.

The Matson/Hicks line of cases do not deal with “mere error in the jury charge submitted.” They do not deal with error in the jury charge at all. These cases address the State’s proof of allegations made in the indictment. They stand for the proposition that when the State alleges in the indictment that the manner and means of the commission of the crime was unknown to the grand jury, there must be proof to support this allegation at trial — 2 just as there must be proof of any element or fact of consequence alleged in the indictment. Because these cases address a failure in the State’s proof of allegations made in the indictment, the reason behind the Court’s declaration that they are not viable in light of Malik, which had nothing to do with facts of consequence alleged in the indictment, is not exactly crystal clear. Perhaps the Court views manner and means when alleged in the indictment to be unknown to the grand jury, as something that either should not be in the indictment or, if it is alleged in the indictment, should for some reason not be included in a hypothetically correct charge. 3 Perhaps the Court means that a charge on manner and means unknown would not be “authorized by the indictment,” even though alleged in the indictment, or such *236 allegation should not be included in “the State’s proof of the crime[J” even though alleged in the indictment. 4

At any rate, all of this is inconsequential to this case because the Matson/Hicks line of cases need not even apply here for the second reason the Court gives in support of overruling appellant’s point of error. Alternative manner and means are alleged in the indictment — a manner and means known (knife) and unknown (hard object the exact nature of which was unknown to grand jury). In these circumstances the manner and means unknown is not necessary to proving appellant’s guilt since the State could prove either the known or unknown manner and means. See Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App.1995)(State is allowed to plead alternative theories of manner and means in conjunctive and proof under one theory will suffice for conviction), cert. denied, 519 U.S. 826 , 117 S.Ct. 88 , 136 L.Ed.2d 44 (1996); Scott v. State, 732 S.W.2d 354, 360 (Tex.Crim.App.1987)(where indictment alleged alternative theories, manner and means unknown and a named manner and means, proof of either means was sufficient). But the case law the majority now says is defunct did not address alternative pleadings. Thus, the majority’s disavowal of the Hicks/Matson rule in the context of the instant case is essentially dicta upon dicta. That is, the disavowing of the rule is offered as an alternative holding (which renders it dicta), and the facts presented in the instant case render the rule inapplicable anyway (also rendering it dicta).

Appellant’s first point of error should be overruled for the second reason stated by the majority. With these comments, I concur in the judgment.

. See abo Blanco v. State, 962 S.W.2d 46, 47 (Tex.Crim.App.1998)(defending Court’s decision against charge that it was dicta by saying Court's actions were “essential to determination of the case in hand”); Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997)("[d]ue to its holding that the prior conviction was an element of the offense, its alternative holding that enhancements must be alleged in the indictment could be viewed as mere dicta”); Angel v. State, 740 S.W.2d 727, 736 (Tex.Crim.App.1987)(McCormick, J., concurring and dissenting)(referring to Section III of majority opinion as "totally unnecessary to the resolution of the instant case” and "an advisory opinion" and stating that since "[t]he merits of appellant’s petition can be disposed of without an inquiry as to [the issue addressed in Section III], ... all of the language in Section III of the majority opinion is pure dicta and totally advisory”).

. When the indictment alleges manner and means unknown and the proof at trial is inconclusive as to the manner and means, a prima facie showing is made that the manner and means was unknown to the grand jury. But when the evidence at trial establishes the manner and means, the State has to prove the grand jury used due diligence in attempting to ascertain manner and means. The reasoning is that a fact of consequence cannot be said to have been unknown to the grand jury unless they used due diligence it ascertaining it.

Other facts of consequence are sometimes pled as unknown to the grand jury, and subject to a similar rule and reasoning. Matson relied on Cunningham v. State, 484 S.W.2d 906 (Tex.Crim.App.1972). In that case, the indictment alleged the person from whom the defendant received stolen property was unknown to the grand jury. The rule was explained:

[A] fatal variance results where the indictment alleges that the person from whom the defendant received the stolen property is unknown to the grand jury and proof at trial shows that the grand jury did in fact know the name of such person or could have ascertained it by reasonable diligence, [citations omitted] However, where nothing is developed at trial to suggest that investigation by the grand jury could have ascertained from whom a defendant received the stolen property, there is a prima facie showing that the name, of the party from whom the defendant received the property was unknown to the grand jury, thereby supporting such averment in the indictment.

Cunningham, 484 S.W.2d at 911 ; see also Manley v. State, 138 Tex.Crim. 379 , 136 S.W.2d 613 (1940); Hunnicutt v. State, 131 Tex.Crim. 260 , 97 S.W.2d 957 (1936); Williams v. State, 69 Tex.Crim. 163 , 153 S.W. 1136 (1913).

. By extending Malik to the context presented in this case, the majority appears to have created a “hypothetically correct indictment” doctrine.

. Judge Womack views the requirement that an indictment allegation be proved at trial as "close to bizarre.” Concurring op. at 230. If anything is bizarre, it is that the State continues to allege in the indictment that the manner and means were unknown. Certainly Matson/Hicks do not require such pleading.