PD-0290-23 08/23/2023
“Does a defendant suffer egregious harm from charge error that 1) related to an element the defendant effectively conceded and which was not a realistic possibility for acquittal, and 2) was limited to a manner and means of murder neither party argued over?”
Alkayyali was convicted of murdering his wife. The jury was charged under two theories of murder: 1) intentionally or knowingly causing her death, Tex. Penal Code § 19.02(b)(1), and 2) intending to cause serious bodily injury and committing an act clearly dangerous to human life that caused her death, § 19.02(b)(2). Unfortunately, the application paragraph on (b)(2) omitted the element of causing death.
The court of appeals reversed on this unpreserved error. It held that this omission caused egregious harm because it “deprived Alkayyali of his right to due process and affected his main defensive theory by (1) relieving the State of its high burden of proving that he caused [his wife]’s death beyond a reasonable doubt and (2) undermining his right to present a complete defense that sought to question that causation.”
The State argues that the court of appeals’s analysis is wrong for two main reasons. First, the fact of error cannot be proof of harm; “finding error in the court’s charge to the jury begins—not ends—the inquiry.” Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh’g). Even the omission of an element is reviewed for harm. See Niles v. State, 555 S.W.3d 562, 570 (Tex. Crim. App. 2018). Second, Alkayyali’s defense was not causation but intent. Although he claimed that his wife had an unidentified (and unverified) fainting disorder and denied hitting her, he admitted to assaultive conduct and acknowledged that she died as a result. He maintained that he did not mean for her to die. It was a terrible accident. Additionally, argument focused almost entirely on the statutory manner and means of murder without the error, no legitimate causation issue was raised by the evidence, and the requirement of causation was present in seven abstract and application instructions. Viewing the record as a whole, there was no risk of actual, rather than theoretical, harm.
