Opinion filed April 4, 2013



### In The 

# Eleventh Court of Appeals

___________ 

### No. 11

- 11

- 00 096

- C R

__________ JOHNNY LEE WELLS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 70 th District Court
Ector County , Texas
Trial Court Cause No. A

- 37,304

M E M O R A N D U M O P I N I O N
The jury convicted Johnny Lee Wells, Appellant, of the offense of capital murder. The State waived the death penalty, and the trial court assessed Appellant’s punishment at confinement for life. See T EX

. P ENAL C ODE A NN

. § 12.31(a) (West 2011 ) (setting the mandatory punishment at imprisonment for life without parole). We affirm.
On August 24, 1990, the 66

- year

- old victim was discovered lying dead on the floor of her house. She was the victim of a brutal homicide. The victim’s purse was located just under the edge of the bed near her body. The victim’s checkbook and her billfold, w hich contained credit cards, were missing from her purse. DNA testing performed during a cold

- case investigation showed that Appellant’s blood was on the victim’s panties, on an eyeglass case, and on both the2 inside and outside of the victim’s purse. App ellant was indicted in 2010, almost twenty years
after the crime

. An inmate who met Appellant in jail in 2007 testified that Appellant had admitted that he broke into the victim’s home, stabbed the vict im, and sexually assaulted her. According to the inm ate , Appellant said that the victim hit him in the nose and that blood from Appellant’s nose “got inside o f her purse.” In his sole issue on appeal, Appellant complains of error in the jury charge that allowed him to be convicted for causing the death of the victim “by a manner and means unknown” when
the manner and means were known

. The only authority cited in Appellant’s brief is an opinion of the Court of Criminal Appeals that, s ubsequent to the filing of Appellant’s brief, was withdr awn and superseded

. S ee S anchez v. State , 376 S.W.3d 767 , 769 (Tex. Crim. App. 2012).
A trial court must deliver to the jury a written charge distinctly setting forth the applicable law and applying the law to the facts adduced at trial. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 36.14 (West 2007 ); Sanchez , 376 S.W.3d at 773; Gray v. State , 152 S.W.3d 125, 127

– 28 (Tex. Crim. App. 2004). In Sanchez
, the court determined that the inclusion in the jury charge of
“the unknown manner

- and

- means theories for the cause of death” was erro neous because the testimony showed that the cause of death was asphyxia result ing from one of the following: strangling with the hands, covering the mouth and nose, or using a stun gun or from any
combination of these. Id. at 774. Thus, the evidence pres ented in Sanchez showed that there was
“a limited list of known alternatives for the manner and means of the cause of death

. ” I d. We
note that the error in Sanchez was determined to be harmless error. Id. at 775

– 76.
In contrast to the situation in Sanchez , the evidence in the present case did not show only
a limited list of known alternatives. The facts in the present case are more like those in
Moulton v. State , No. PD

- 1889

- 11, 2013 WL 811482 , at *5 (Tex. Crim. App. March 6, 2013),
where the court upheld a charge on “ unknown manner and means” whe n the evidence showed
that there wa s “ unlimited information that may be unknown, because the crime scene does not point to a conclusive list of possibilities. A limited list of known alternatives does not exist. ” In
Moulton , the evidence did not conclusively point to a particular means of asphyxiation. 2013 WL 811482, at *5. In the present case, t he jury was instructed in relevant part to find Appellant guilty of capital murder if it found beyond a re asonable doubt: [Appellant] . . . did then and there intentionally cause the death of an individual, namely, Virginia Washelesky, by a manner and means unknown to the Grand Jury3 or by stabbing or cutting Virginia Washelesky with a deadly weapon, to

- wit: an object unknown to the Grand Jury which in the manner of its use and intended use is capable of causing death or serious bodily injury, and [Appellant] did then and there intentionally cause the death of the said individual in the course of committing or a ttempting to commit the offense of aggravated sexual assault or robbery directed against Virginia Washelesky or burglary of a habitation owned by Virginia Washelesky. The jury charge essentially tracked the indictment. Appellant filed a pretrial motion complaining
of the indictment and subsequently objected to the jury charge . Appellant argued that the language “by a manner and means unknown” was not supported by the evidence because no evidence indicated the “manner or means as anything other than cutt ing or stabbing other than Dr. Veasey speculating that something else could have happened.” The State asserts that the trial court properly charged the jury because there was some evidence that the “ manner and means
were unknown.” Dr. Sparks P . Veasey, a forensic pathologist, testified that the doctor who performed the autopsy on the victim in 1990, Ralph Erdmann, had since come under major scrutiny for falsifying autopsies , had been convicted and jailed for falsifying an autopsy record, and is no longer a licensed pathologist . Dr. Veasey testified that, when a proper autopsy is not performed, “we can’t say that this is the exclusive cause of death.” According to Dr. Veasey, exhuming the victim’s body twenty years after her death would not have been of b enefit to a determin ation of
the cause of death in this case. All of the pictures related to this case were sent to Dr. Veasey, and from those pictures, Dr. Veasey determined without question that the victim “died as a result
of homicidal violence” and th at “a component of that homicidal violence was sharp force injuries.” However, i n addition to the sharp force injuries, which appeared to be stab wounds from an unknown object, Dr. Veasey observed a sever e contusion o n the victim’s chin from
blunt force t rauma. Because Erdmann did not examine the victim’s brain and because the pictures do not reveal that Erdmann made any incisions during his autopsy, Dr. Veasey could not definitively determine that other injuries, such as rib fractures or trauma to the he ad or abdomen,
did not contribute to or cause the victim’s death. Dr. Veasey was of the opinion that the victim had struggled with her assailant and that she had been sexually assaulted around the time of the
attack. Dr. Veasey testified on cross

- examina tion that the sharp force injuries were “[v]ery likely” or “perhaps” the only cause of death but that, based on his experience with Erdmann, “[i]t ’s unknown t o me what else is in the body.”4 In this case, both of the alternative theories included in the jury charge w ere supported by
the evidence at trial. There was evidence indicating that the victim died from being cut or stabbed by an unknown object. There was also evidence , including Dr. Veasey’s testimony that
the victim’ s injuries did not conclusi vely point to the death as being caused by cutting or stabbing but also pointed to other possibilities, indicat ing that t he manner and means of the
victim’s death were unknown

. We hold that the trial court did not err in charging the jury on the theory of “ manner and means unknown

. ” Accordingly, we overrule Appellant’s sole issue on appeal. The judgment of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE

April 4, 2013 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wright, C.J., McCall, J., and Willson, J.