Grand Jury Errors Go to the Charging Decision, Not the Conviction

During the grand jury hearing for would-be defendant Ronnie Duane Mason, two police officers questioned a witness on the record, despite the fact that article 20.04 of the Texas Code of Criminal Procedure provides that only the attorney representing the State or a grand juror may question a witness. Mason was later charged with and convicted of capital murder and sentenced to life imprisonment.

On appeal, Mason argues that by allowing unauthorized persons to question a witness during grand jury proceedings, his substantial rights were violated. See Texas Rule of Appellate Procedure 44.2(b). The 7th District Court of Appeals (Amarillo) reversed the trial court ruling after concluding that the State’s unauthorized questioning caused harmful error. The Court of Criminal Appeals now reverses the 7th Court holding that the error did not affect appellant’s substantial rights.

The primary issue on appeal was whether the court must decide that the error affected the charging decision or the ultimate conviction/sentence. The State was arguing that the violation must affect the conviction and sentence, and conversely, appellant argued that it need only affect the charging decision.  The 7th Court agreed with appellant that a grand jury error must be analyzed for its effect on the charging decision. The CCA, borrowing Justice O’Connor’s reasoning from her concurring opinion in U.S. v. Mechanik, 475 U.S. 66 (1986), followed in line with the 7th Court, holding:

[A]ddressing a grand jury statutory violation, the proper subject of a harm analysis is the product of those proceedings; the charging decision.

The CCA did not concur, however, with the 7th Court harmless error analysis, stating:

We agree with the analytical focus chosen by the court of appeals, but we do not agree with its conclusion that the State’s actions caused harmful error.

Judge Womack concurred and would follow the Supreme Court majority opinion in Mechanik.

Takeway: A defendant/appellant must show that the grand jury error affected the charging decision in order to demonstrate a violation of his/her substantial rights. Great, but how do you do that with the one-sided transcript of a grand jury proceeding? Good luck.

“Manner and Means to the Grand Jury Unknown”

I've been told that rules are made to be broken.  It seems, the CCA agrees.  Okay, maybe not "broken," but certainly modified.  Yesterday, the Texas Court of Criminal Appeals overruled 17 years of precedent from Hicks v. State, 860 S.W.1 2d 419 (Tex. Cr. App. 1993) in cases involving an indictment (or jury charge) alleging “unknown manner or means" by which a defendant committed an offense.

In Sanchez v. State, the Appellant was convicted of “intentionally and knowingly caus[ing] the death of [the victim] by manner and means to the Grand Jurors unknown.” The court likewise charged the jury on the “unknown” manner and means. The Appellant objected to the “manner and means unknown” theory because, as he argued, the allegation was unsupported by the evidence presented at trial and was thus based on insufficient evidence to convict. The trial court overruled the objection. Appellant was convicted of murder and sentenced to sixty-eight years in prison.

On appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that the manner and means the Appellant employed were not actually unknown as there was testimony at trial regarding possible strangulation and use of a stun gun, and that the jury charge was erroneous in authorizing conviction on an “unknown” theory. The 13th Court bought it.

In determining whether the trial evidence was sufficient to warrant a charge on the “unknown” theories, the [Appellate] 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.

The CCA, however, was no so persuaded. Identifying the thrust of the Hicks decision as “notice to the defendant,” the CCA explained that the rule “seems to have lost it intent and focus.” Devising a new rule in “unknown manner and means” cases, the CCA held:

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.

Addressing the “notice” concern of the Hicks litany, the CCA provided:

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 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.

The CCA reversed the 13th Court and affirmed Appellant’s conviction.