Texas's Sixth Court of Appeals in Texarkana has held that where the manner and means of committing a crime is known to be one of several possibilities, it is not proper in the indictment to state that the manner and means were unknown to the grand jury.
Victim Rebecca Moulton was found floating in a pond, dead from asphyxia possibly from drowning, strangulation, or suffocation. Her husband’s indictment alleged that he caused her death by
- · Manual strangulation,
- · Drowning and (meaning “or”)
- · Asphyxia by means unknown to the grand jury.
Where the manner and means are not elements of the offense, giving notice that an offense that the manner and means of committing an offense is unknown when they are known, at least as one of a list of possibilities, may prevent the defendant from properly preparing for trial, and the trial evidence may show that the allegation of unknown manner and means to be demonstrably false. This may require a new trial. In this case, it did.
This holding was largely based on Sanchez v. State, PD-0961-07, (Tex. Cr. App. Oct. 6, 2010) (rehearing pending). The Texarkana Court is going to look foolish if the Court of Criminal Appeals recasts its opinion in a major way.
In another issue in this case, an expert said that evidentiary affidavits given by the victim’s friends and family members could be read into the trial record to show the basis of the expert’s opinion under Texas Rule of Evidence 705—that the affidavits were not unfairly prejudicial.