ALKAYYALI, TAREQ v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0290-23

TAREQ ALKAYYALI, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

FINLEY, J., filed a dissenting opinion.

DISSENTING OPINION

This case involves unobjected-to jury charge error. The jury instruction’s

application paragraph omitted the causation requirement for murder under

Section 19.02(b)(2) of the Texas Penal Code. The jury convicted Appellant. The

question presented is whether the unobjected-to jury charge error egregiously

harmed Appellant. Today, the plurality opinion agrees with the court of
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appeals and holds that Appellant was egregiously harmed. I disagree.

Therefore, I respectfully dissent.

I. Applicable Law

The jury charge’s application paragraphs authorize a conviction.

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (first citing

Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996); and then citing

Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995)). They apply

the “pertinent penal law, abstract definitions, and general legal principles to

the particular facts and the indictment allegations.” Id. When there is jury-

charge error, regardless of whether the error occurs in the abstract or

application paragraphs, the reviewing court must determine whether the error

harmed the defendant. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App.

2022). The requisite level of harm depends upon whether the defendant

objected to the jury charge at trial. Id. If there was a timely objection to the

error, then “the record need only show ‘some harm.’” Id. (quoting Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). If not, then

“the record must show ‘egregious harm.’” Id. (quoting Almanza, 686 S.W.2d at

171).

Egregious harm requires more than some theoretical harm. See id.

Rather, an appellant must be actually harmed by the erroneous jury charge.
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See id. “An erroneous jury charge is egregiously harmful if it affects the very

basis of the case, deprives the accused of a valuable right, or vitally affects a

defensive theory.” Id. (citing Almanza, 686 S.W.2d at 171). Determining

whether the defendant was egregiously harmed requires a fact-specific

analysis, and it is challenging to satisfy. See id. Our analysis is guided by

considering four factors: “(1) the entirety of the jury charge, (2) the state of the

evidence, including the contested issues and weight of probative evidence, (3)

the arguments of counsel, and (4) any other relevant information revealed by

the trial record as a whole.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.

App. 2015) (citing Almanza, 686 S.W.2d at 171).

II. Analysis

As discussed below, I believe the first Almanza factor weighs in favor of

egregious harm; the second factor is neutral; the third factor weighs in favor of

no harm; and the fourth factor weighs neither in favor of nor against harm,

because the first three factors consider all the relevant trial information.

Considered in their totality, Appellant did not suffer egregious harm.

a. The entirety of the jury charge.

Except for omitting the causation element at issue from the application

paragraph, the jury charge was correct. Pertinent to Appellant’s case are the

differences between subsections (b)(1) and (b)(2) for murder under Texas Penal
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Code Section 19.02. A person commits murder under subsection (b)(1) by

“intentionally or knowingly caus[ing] the death of an individual.” TEX. PENAL

CODE § 19.02(b)(1). A person commits murder under subsection (b)(2) if he

“intends to cause serious bodily injury and commits an act clearly dangerous

to human life that causes the death of an individual.” Id. § 19.02(b)(2)

(emphasis added). The indictment alleged both subsections as alternate

murder theories. Like the application paragraph, the indictment failed to

include the causation requirement for subsection (b)(2) murder, but did include

the causation requirement for subsection (b)(1) murder. And yet, the jury

charge’s abstract paragraphs correctly defined murder under both subsections.

Thus, only the indictment and the application paragraph for the subsection

(b)(2) murder offense omitted the causation element.

Under these circumstances, it is reasonable for the jury to have come to

one of two conclusions about the subsection (b)(2) murder charge: (1) the

abstract paragraph was incorrect, or (2) the application paragraph was

incorrect. Faced with this inconsistency, the jury would have been further

guided by the indictment, which shared the same defect as the application

paragraph. The plurality opinion is correct in noting that “[t]he application

paragraph is the ‘heart and soul’ of the jury charge because it ‘specifies the

factual circumstances under which the jury should convict or acquit.’” Op. of
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Newell, J., at 19 (quoting Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim.

App. 2012)). Because the application paragraph applies the law to the facts of

the actual case and crime before the jury, it makes intuitive sense for the jury

to discredit the abstract in favor of the application paragraph, especially when

it mirrors the indictment’s language. Therefore, this factor weighs in favor of

a finding of egregious harm.

b. The state of the evidence, including the contested issues and
weight of the probative evidence.

As demonstrated by the court of appeals, there was legally sufficient

evidence to affirm Appellant’s conviction for murdering Moussa. Alkayyali v.

State, 668 S.W.3d 445, 455–57 (Tex. App.—Fort Worth 2023). This weighs in

favor of no harm for this specific Almanza factor.

The plurality opinion cites Sanchez v. State, 209 S.W.3d 117, 125 (Tex.

Crim. App. 2006), for the proposition that “[t]he Court has held that a

defendant suffers egregious harm when elements of an offense are disputed at

trial and the jury is not required to find those elements to be proven beyond a

reasonable doubt prior to convicting a defendant.” Op. of Newell, J., at 22.

However, I am unconvinced that omitting the causation element created a

situation in which the jury “could essentially disregard any of the evidence

Appellant pointed to under his defensive theory that the murder had been an

accident.” Id. at 25. Appellant’s “accident defense” did not thrust causation into
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issue. Nor does an accident necessarily implicate causation. An accident

relates to a defendant’s mens rea, which is a distinct inquiry from considering

whether Appellant’s conduct caused the death of Moussa.

Moreover, causation did not seem to be seriously disputed. Appellant

centered his defensive theory around Moussa’s heart condition and issues with

fainting. But there was no evidence that Moussa’s repaired ventricular septal

defect (VSD) or fainting issues caused her death. In 2013, Moussa’s VSD was

surgically repaired. Moussa’s VSD repair remained intact even after death. Dr.

Krouse’s autopsy report noted that the VSD abutted Moussa’s heart’s

conduction system, and Dr. Fries explained that “every [VSD] is essentially

abutting the conduction system.” Dr. Fries further explained that fainting is

not a symptom of a repaired VSD. In fact, Dr. Fries opined that he would expect

syncope and fainting only if the VSD “was unrepaired and the person was in

heart failure.” Dr. Fries also noted that it would be unlikely for an unrepaired

VSD to cause immediate death. Instead, it would lead to progressive and

protracted heart failure. Dr. Fries even opined that the repaired VSD did not

contribute to Moussa’s death. Likewise, there was no evidence that fainting

could have caused Moussa’s death.

When considering Moussa’s relevant medical history, neither health

issue working independently or concurrently previously caused an injury even
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remotely commensurate to death. It seems speculative, at best, to conclude

that these health issues undercut the State’s causation theory or put causation

at issue. Thus, Moussa’s medical history did not raise serious issues of

causation, if any.

Yet the indictment and application paragraph matched and shared the

same error—each omitted the causation element. It was reasonable for the jury

to presume that the abstract paragraph contained the error, because it was

unlike the indictment and application paragraph. This would tend to favor a

finding of egregious harm because the jury may have disregarded the correct

elements of subsection (b)(2) murder.

Finally, the plurality opinion considers the following three facts under

Almanza’s fourth factor, see Op. of Newell, J., at 28–29, but they are relevant

under Almanza’s second factor. I agree with the plurality opinion in that the

following facts favor a finding of egregious harm: (1) “Dr. Fries testified that

the common places where petechiae can be observed in cases of asphyxiation

are the eyes, face, skin, and even some organs. However, petechiae were only

observed under Moussa’s scalp”; (2) Dr. Fries “also testified that there was

bruising on her neck but that the bruising did not extend to her muscles”; and

(3) “there was no damage to Moussa’s hyoid bone nor any to the cartilage of her
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thyroid and larynx, all of which are examined in cases of strangulation.” Id. at

28–29. But the plurality opinion overstates their cumulative importance.

The petechiae being observed only under Moussa’s scalp slightly

undercuts the State’s theory that Appellant suffocated Moussa to death. Yet

its value remains slight because Dr. Fries also testified that petechiae can

appear under an individual’s scalp when the jugular vein is obstructed. This

latter, alternative explanation requires a combination of smothering and

strangulation or “some level of neck compression,” which comports with the

State’s argument of how Appellant killed Moussa. See infra Section II.c.i. The

bruising, or lack thereof, the lack of damage to Moussa’s hyoid bone, and the

lack of damage to the cartilage of Moussa’s thyroid and larynx weigh in

Appellant’s favor because they provide some evidence that Moussa did not die

by strangulation.

When the above facts are considered in their totality, I believe Almanza’s

second factor is neutral.

c. The arguments of counsel.

As discussed below, the arguments of counsel can be subdivided into the

State’s and defense counsel’s. While the State’s arguments favor a finding of

no harm, defense counsel’s arguments are neutral. Thus, this Almanza factor

favors a finding of no harm.
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i. The State

The State’s opening statement, as expected, provided a roadmap of the

evidence it would present to the jury that would prove Appellant committed

the murder. The opening statement was short and consumed a mere four pages

of the trial’s transcript. The State only discussed causation when it told the

jury that it would hear from Dr. Fries, who would tell the jury that “the cause

of death in this case was asphyxiation.” But briefly stating the cause of death

does not amount to a causation-based argument and does not weigh for or

against egregious harm.

The State spent most of its opening argument discussing the

circumstances surrounding Moussa’s death because they were highly probative

of Appellant’s mens rea of intentionally or knowingly, either of which the State

needed to prove to secure a murder conviction. The State discussed how

Appellant smothered and strangled Moussa to death, which undercut

Appellant’s defense that their fight was over in seconds. This did not focus on

causation. The State focused on negating Appellant’s defense and establishing

Appellant’s mens rea.

The State, however, did spend the first third of its closing argument

confronting causation. The State argued that nothing else besides Appellant’s

conduct could have caused Moussa’s death. The State discounted Moussa’s
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VSD and fainting issues, and underscored Moussa’s 2018 EKG that revealed

no issues with her heart. The State urged the jury to accept its theory that

Moussa had died because Appellant strangulated or suffocated her. Thus, the

State spent some but not all of its closing argument on causation.

The State spent an insignificant amount of time on causation in its

opening statement and closing arguments. Rather, the State devoted these key

moments to persuading the jury to find that Appellant intentionally or

knowingly killed Moussa, and that this was not an accident. This favors a

finding of no harm.

ii. Appellant

As the plurality opinion states, defense counsel’s opening statement

included “inform[ing] the jury that Moussa had a history of fainting, that she

had heart surgery at the age of eighteen, and that the repaired area was close

to the area of the heart that can cause fainting.” Op. of Newell, J., at 26.

However, these references to Moussa’s heart condition and fainting episodes

do not activate a causation-based defense. To conclude otherwise requires the

reviewing court to overanalyze the arguments and pan for gold when there is

none. Notably absent from defense counsel’s statement is that a history of

fainting and a repaired VSD caused Moussa’s death.
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Defense counsel’s closing argument opened with “Tareq Alkayyali didn’t

mean for [Moussa] to die.” It closed with defense counsel explaining why the

jury should find that Appellant (1) “did not inten[tionally] or knowingly cause

[Moussa’s] death”; (2) was not reckless; and (3) did not commit criminally

negligent homicide. The beginning and ending of defense counsel’s closing

argument focused on Appellant lacking any criminal mens rea. Absent from

defense counsel’s final remarks is an argument about why Appellant did not

commit subsection (b)(2) murder.

The closest defense counsel came to outright contesting causation

occurred when he argued for the jury to disbelieve now-discredited Dr. Krouse,

who conducted Moussa’s autopsy. Even though Dr. Fries independently

reviewed Moussa’s autopsy, it still served as the basis upon which he testified.

Defense counsel questioned the veracity of Dr. Krouse’s conclusion that

Moussa’s cause of death was a “homicide or death at the hands of another and

asphyxia.” Defense counsel urged the jury not to rely on the autopsy’s stated

cause of death. And yet, Appellant offered no expert testimony that Moussa

died from fainting or her repaired VSD, or both. Moreover, Moussa’s autopsy

was peer reviewed by at least five other medical examiners. Besides

highlighting Dr. Krouse’s other flawed autopsies, defense counsel failed to

substantively argue why Dr. Krouse’s conclusion was incorrect. At best, this
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implicitly argues to the jury that it should question causation. Viewed in

totality, this portion of Appellant’s closing argument does not indicate that

Moussa’s cause of death was seriously contested by defense counsel.

Because defense counsel’s opening statement and closing argument do

not directly or seriously contest causation, they are neutral in determining

harm for this Almanza factor.

d. Any other relevant information revealed by the record of the
trial as a whole.

For Appellant, all the relevant information fits into one of the first three

Almanza factors. Accordingly, the fourth factor is neutral and neither weighs

for nor against a finding of egregious harm.

In summary, the first Almanza factor is the only one that weighs in favor

of egregious harm; the second and fourth Almanza factors are neutral; and the

third Almanza factor weighs in favor of no harm. Because the Almanza factors

do not support a finding that Appellant suffered egregious harm, I would

reverse the judgment of the court of appeals.

III. Judge Parker’s dissent.

I agree with Judge Parker’s dissent to a certain degree. First, the

plurality opinion incorrectly defined the legal issue, thereby reaching an

incorrect conclusion. See Op. of Parker, J., at 1–2. Second, the plurality opinion

relies on distinguishable precedent because Appellant’s causation element was
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not entirely omitted from the jury charge, and Appellant failed to object at

trial. See id. at 2–5. Third, I largely agree with Part C of Judge Parker’s

dissent, which I interpret as a limited Almanza analysis. See id. at 20–30. But,

for the reasons stated below, I do not agree with the other portions of Judge

Parker’s dissent.

To start, Judge Parker diminishes the jury charge’s application

paragraph’s importance. The application paragraph applies the law to the facts

and “specifies the factual circumstances under which the jury should convict

or acquit.” Vasquez, 389 S.W.3d at 366. Without it, the jury would not know

whether to render an acquittal or a conviction. See id. It, therefore, functions

as a guiding hand to the jury. Compared to the abstract paragraphs, the

application paragraph will always be more difficult to read because it actually

applies the law to the facts. The jury is certainly free to consult the abstract

paragraphs for clarification purposes, but the abstract paragraphs are

primarily aimed to “serve as a glossary to help the jury understand the

meaning of concepts and terms used in the application paragraphs of the

charge.” Crenshaw, 378 S.W.3d at 466. While the jury may have focused on the

abstract paragraphs, see Op. of Parker, J., at 5–9, the abstract did not

authorize Appellant’s conviction. The application paragraph did. Thus, the jury

was entitled to defer to the application paragraph, even though the abstract
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paragraph differed, contra id. at 11. Cf. Patrick v. State, 906 S.W.2d 481, 493

(Tex. Crim. App. 1995) (“We conclude that because the facts, as applied to the

law in the application paragraph, pointed the jury to the appropriate portion

of the definitions, no harm resulted from the court’s failure to limit the

definitions of culpable mental states[.]”).

Next, in light of the indictment’s shared error, the entirety of the jury

charge does not alleviate the harm caused by the omitted causation element.

The application paragraphs, except for Section 19.02(b)(2) murder, correctly

instructed the jury under which scenarios it could render a guilty verdict.

Judge Parker is correct in noting that “[a]ny juror recalling the lesser-included

offense instruction would find it very odd for the second murder theory to be

the only offense in the entire jury charge that did not require a showing that

Appellant caused the victim’s death.” Op. of Parker, J., at 12. Yet the

indictment also omitted the causation element. Because the State never

included the causation element for Section 19.02(b)(2) murder, its omission in

the application paragraph is not so odd. The jury could have reasonably

assumed that the abstract murder paragraph was wrong, not the indictment

and application paragraph. See supra Section I.a. This would also explain why

the jury did not seek clarification on Section 19.02(b)(2) murder’s application

paragraph. But see Op. of Parker, J., at 14.
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Finally, I am hesitant to rely upon the premise that “[c]ausation is a

widely understood element of murder.” Id. at 13. While this might be true, it

opens Pandora’s box. Not to belabor the point, but the application paragraph

outlines the basis upon which a jury may convict a defendant. See Vasquez, 389

S.W.3d at 366. It should contain every element of an offense. Its failure to do

so should not be rendered harmless partially because of society’s increased

interest in and consumption of murder-related media. It seems misguided to

permit the entertainment industry to usurp the role of the jury charge’s

application paragraph. We should be hesitant before permitting outside

sources to affect our jury-charge error analysis. If not, then some mysterious

threshold level of media coverage could impute constructive knowledge of a

crime’s essential elements to the jury. At that point, where would we draw the

line?

IV. Conclusion

The jury-charge error in this case should not be repeated. My dissent is

not intended to endorse the State’s and defense counsel’s failures. Both sides

share some level of culpability. Moreover, I am hesitant to find egregious harm
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in a situation like this because it may incentivize future defense attorneys to

not object to similar jury charge errors. 1

Had the error been objected to, I would join the plurality opinion.

However, with the facts before the Court today, I do not conclude that

Appellant suffered egregious harm. Because the plurality opinion holds

otherwise, I respectfully dissent.

Filed: May 7, 2025
Publish

1 The plurality opinion takes issue with this sentiment, see Op. of Newell, J., at 17

n.26, by misconstruing my hesitancy in finding egregious harm. It conveniently
overlooks the Almaza analysis I conducted supra Part II and that I rely upon to
conclude that Appellant did not suffer egregious harm. More importantly, the
responsibility for timely and properly objecting to an erroneous jury charge falls upon
the defendant or defense counsel. TEX. CODE CRIM. PROC. art. 36.14. (“Before said
charge is read to the jury, the defendant or his counsel shall have a reasonable time
to examine the same and he shall present his objections thereto in writing, distinctly
specifying each ground of objection.”).