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Click here for the full text of this decision FACTS:Orlando Sanchez and the decedent were once engaged, but their engagement ended without the couple getting married. The two began seeing each other again. Sanchez phoned the decedent, saying that he needed a ride because his vehicle was not working. The decedent left her home to assist Sanchez. A resident in a Weslaco motel heard a woman screaming in a nearby room. That resident contacted peace officers and informed them of the screams. Those officers entered a motel room and saw both Sanchez and the decedent laying on the floor. A stun gun was on the floor near Sanchez. Authorities pronounced the decedent at the scene. Authorities transported Sanchez to a nearby hospital and arrested him for the murder of the decedent a short time later. The indictment alleged the offense of murder in four separate paragraphs that Sanchez: 1. intentionally or knowingly choked the decedent by hand; 2. intentionally or knowingly caused the death by manner and means unknown to the grand jury; 3. intending to cause serious bodily injury, committed an act clearly dangerous to human life, to wit: placed a stun gun to the decedent; and 4. intending to cause serious bodily injury, committed an act clearly dangerous to human life, to wit: by manner and means unknown to the grand jury. The indictment alleged two of the three ways of committing murder in Texas. Under Texas Penal Code �19.02(b)(1) & (2), “a person commits an offense if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Dr. Fulgencio Salinas, the laboratory director at Edinburg Regional Medical Center, performed the autopsy of the decedent and testified in court. He described bruising, scratches and lacerations to the decedent’s body. Some of those injuries were consistent with a stun gun being triggered after contact with the decedent’s skin. Salinas opined that the cause of death was asphyxia, meaning a lack of oxygen to the brain. Salinas concluded that choking or being stunned by the stun gun caused the asphyxia. A jury convicted Sanchez of murder and the trial judge assessed punishment at 68 years of confinement in the Texas Department of Criminal Justice-Institutional Division. Sanchez raised four points of error. Specifically, Sanchez contended that legally and factually insufficient evidence proved: “1) the specific intent to cause death; (2) the cause of death was by choking with appellant’s hands; (3) the intent to cause serious bodily injury; and, (4) the stun gun was the cause of death.” HOLDING:Reversed and remanded. In homicide prosecutions, the court stated, the defendant’s state of mind is a question of fact that must be determined by the jury. Examining the facts of the case in the light most favorable to the jury’s verdict, the court found the evidence legally sufficient to prove the intent to kill. Next, the court considered whether sufficient evidence proved that the cause of death “was by choking with appellant’s hands.” The court found that the jury could base its finding on Salinas’ testimony that the decedent’s death from asphyxia resulted from strangulation. The court found this evidence legally sufficient to support a rational finding that the decedent died from being choked by Sanchez’ hands. Furthermore, the court found that the jury was rationally justified in finding both the intent and causation elements beyond a reasonable doubt. Accordingly, the court held that legally and factually sufficient evidence proved Sanchez had the specific intent to cause the decedent’s death and that she met her death by choking at the hands of Sanchez. Sanchez’ fourth point of error contended the trial judge erred in submitting to the jury the allegations in the second and fourth paragraphs of the indictment, which alleged that “the manner and means of causing the decedent’s death was unknown to the grand jury.” Charge error, the court stated, occurs when a trial judge authorizes the jury to convict on a theory of conviction that is legally permissible but lacking sufficient evidence to support a conviction under that theory. When the evidence is insufficient to support a conviction, the court stated, the trial judge should eliminate that theory of conviction from the jury’s consideration and not include it in the charge. Not doing so is charge error, the court stated. In cases where the cause of death cannot be conclusively established, the court stated, it is not uncommon for the indictment to allege a primary cause of death and in the alternative to allege that the defendant caused the death by manner and means unknown to the grand jury. When the indictment alleges the cause of death in this manner, the court stated that the state bears the burden of proving the “unknown” allegation. In the case, Salinas testified that the decedent’s death “was caused either by choking by hand or use of the stun gun.” Salinas did not provide any alternate theory or testify that the cause of death was unknown. Therefore, the court found that insufficient evidence supported the theories of prosecution alleged in the second and fourth paragraphs of the indictment. Consequently, the court held that the trial judge erred in authorizing the jury to convict Sanchez under those theories of prosecution. In assessing whether Sanchez suffered any harm from this error, the court considered the charge, the state of the evidence, the argument of counsel and any other relevant information revealed by the record. In view of these four factors, each militating toward a finding that the erroneous jury charge harmed Sanchez, the court found Sanchez suffered, at a minimum, “some harm” from the trial judge’s charge allowing the jury to convict Sanchez on theories not supported by the evidence. OPINION:Baird, J.; Valdez, C.J., and Ya�ez and Baird, J.J.

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